Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, represent and warrant to, and agree with the Agent as of the date of this Agreement, as of each Representation Date (as defined below), as of the time of each sale of Placement Shares pursuant to this Agreement and as of each Settlement Date, unless such representation, warranty or agreement specifies a different date or time: a. the Company has the authorized and outstanding capitalization as set forth in the Registration Statement and the Prospectus; the outstanding shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable. All of the outstanding shares of capital stock, partnership interests and membership interests, as the case may be, of the subsidiaries of the Company identified on Schedule 4 hereto (each, a “Subsidiary”) have been duly authorized and are validly issued, fully paid and non-assessable securities thereof and, except as disclosed in the Prospectus, all of the outstanding shares of capital stock, partnership interest or membership interests, as the case may be, of the Subsidiaries are directly or indirectly owned of record and beneficially by the Company; except as disclosed in the Prospectus, there are no outstanding (i) securities or obligations of the Company or any of the Subsidiaries convertible into or exchangeable for any capital stock of the Company or any such Subsidiary, (ii) warrants, rights or options to subscribe for or purchase from the Company or any such Subsidiary any such capital stock or any such convertible or exchangeable securities or obligations, or (iii) obligations of the Company or any such Subsidiary to issue any shares of capital stock, any such convertible or exchangeable securities or obligation, or any such warrants, rights or options; all issued and outstanding units of partnership interest in the Operating Partnership (“Units”) owned by the Company are owned free and clear of any perfected security interest or any other security interests, claims, liens or encumbrances; b. each of the Company and each of the Subsidiaries has been duly incorporated, formed or organized and is validly existing as a corporation, general or limited partnership or limited liability company in good standing under the laws of its respective jurisdiction of incorporation, formation or organization with full power and authority to own its respective properties and to conduct its respective businesses as described in each of the Registration Statement and the Prospectus, and, in the case of the Company and the Operating Partnership, to execute and deliver this Agreement and to consummate the transactions contemplated herein and to perform its obligations under the Amended and Restated Management Agreement, dated October 27, 2015, by and among the Company, the Operating Partnership and the Manager (the “Management Agreement”); c. the Company and each of the Subsidiaries is duly qualified or licensed and in good standing in each jurisdiction in which it conducts its businesses or in which it owns or leases real property or otherwise maintains an office and in which the failure, individually or in the aggregate, to be so qualified or licensed would have a material adverse effect on the assets, business, operations, earnings, prospects, properties or condition (financial or otherwise) of the Company and the Subsidiaries taken as a whole, (any such effect or change, where the context so requires, is hereinafter called a “Material Adverse Effect” or “Material Adverse Change”); except as disclosed in the Prospectus, no Subsidiary is prohibited or restricted, directly or indirectly, from paying dividends to the Company, or from making any other distribution with respect to such Subsidiary’s capital stock or from repaying to the Company or any other Subsidiary any amounts which may from time to time become due under any loans or advances to such Subsidiary from the Company or such other Subsidiary, or from transferring any such Subsidiary’s property or assets to the Company or to any other Subsidiary; other than as disclosed in the Prospectus, the Company and the Operating Partnership do not own, directly or indirectly, any capital stock or other equity securities of any other corporation or any ownership interest in any partnership, joint venture or other association; d. the Company and the Subsidiaries are in compliance in all material respects with all applicable laws, rules, regulations, orders, decrees and judgments, including those relating to transactions with affiliates; e. neither the Company nor any Subsidiary is in breach of or in default under (nor has any event occurred which with notice, lapse of time, or both would constitute a breach of, or default under), (i) its respective charter, bylaws, agreement of limited partnership, operating agreement or other similar organizational documents (the “Organizational Documents”), (ii) the performance or observance of any obligation, agreement, covenant or condition contained in any license, indenture, mortgage, deed of trust, loan or credit agreement or other agreement or instrument to which the Company or any Subsidiary is a party or by which any of them or their respective properties is bound, or (iii) any federal, state, local or foreign law, regulation or rule or any decree, judgment, permit or order (each, a “Law”) applicable to the Company or any Subsidiary, except, in the case of clauses (ii) and (iii) above, for such breaches or defaults which would not, individually or in the aggregate, have a Material Adverse Effect; f. the execution, delivery and performance of this Agreement, and consummation of the transactions contemplated herein will not (A) conflict with, or result in any breach of, or constitute a default under (nor constitute any event which with notice, lapse of time, or both would constitute a breach of, or default under), (i) any provision of the Organizational Documents of the Company or any Subsidiary, or (ii) any provision of any license, indenture, mortgage, deed of trust, loan or credit agreement or other agreement or instrument to which the Company or any Subsidiary is a party or by which any of them or their respective properties may be bound or affected, or under any Law applicable to the Company or any Subsidiary, except in the case of this clause (ii) for such breaches or defaults which would not, individually or in the aggregate, have a Material Adverse Effect; or (B) result in the creation or imposition of any lien, charge, claim or encumbrance upon any property or asset of the Company or any Subsidiary; g. this Agreement and the Management Agreement have been duly authorized, executed and delivered by the Company and the Operating Partnership and each is a legal, valid and binding agreement of the Company and the Operating Partnership enforceable in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, and by general equitable principles, and except to the extent that the indemnification and contribution provisions of Section 12 hereof may be limited by federal or state securities laws and public policy considerations in respect thereof; h. no approval, authorization, consent or order of or filing with any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency is required in connection with the execution, delivery and performance of this Agreement by the Company or the Operating Partnership, their consummation of the transactions contemplated herein, and the Company’s sale and delivery of the Placement Shares, other than (A) such as have been obtained, or will have been obtained at the relevant Settlement Date, under the Securities Act and the Exchange Act, (B) such approvals as have been obtained in connection with the approval of the listing of the Placement Shares on the Exchange, (C) such as have been obtained or made under the rules and regulations of the Financial Industry Regulatory Authority (“FINRA”) and (D) any necessary qualification under the securities or blue sky laws of the various jurisdictions in which the Placement Shares are being offered by the Agent; i. each of the Company and the Subsidiaries has all necessary licenses, authorizations, consents and approvals and has made all necessary filings required under any Law, and has obtained all necessary authorizations, consents and approvals from other persons, required in order to conduct their respective businesses as described in the Registration Statement and the Prospectus, except to the extent that any failure to have any such licenses, authorizations, consents or approvals, to make any such filings or to obtain any such authorizations, consents or approvals would not, individually or in the aggregate, have a Material Adverse Effect; neither the Company nor any of the Subsidiaries is required by any applicable law to obtain accreditation or certification from any governmental agency or authority in order to provide the products and services which it currently provides or which it proposes to provide as set forth in the Registration Statement and the Prospectus; neither the Company, nor any of the Subsidiaries is in violation of, in default under, or has received any notice regarding a possible violation, default or revocation of any such license, authorization, consent or approval or any federal, state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Company or any of the Subsidiaries the effect of which could result in a Material Adverse Change; and no such license, authorization, consent or approval contains a materially burdensome restriction that is not adequately disclosed in each of the Registration Statement and the Prospectus; j. the Company meets the requirements for use of Form S-3 under the Securities Act; the Registration Statement has become effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Company, are contemplated or threatened by the Commission; and the Company has complied to the Commission’s satisfaction with any request on the part of the Commission for additional information; k. the Registration Statement as of each effective date (including each deemed effective date with respect to the Agent pursuant to Rule 430B or otherwise under the Securities Act) and as of the date hereof, complied or will comply, and the Prospectus and any further amendments or supplements to the Registration Statement or the Prospectus at the time they were filed with the Commission, were, or will, when they become effective or are filed with the Commission, as the case may be, comply, in all material respects with the requirements of the Securities Act, including Rule 415; the documents incorporated by reference in the Registration Statement and the Prospectus, when they became effective or at the time they were or hereafter are filed with the Commission, complied and will comply in all material respects with the requirements of the Exchange Act; l. the Registration Statement, as of each effective date (including each deemed effective date with respect to the Agent pursuant to Rule 430B or otherwise under the Securities Act), and as of the date hereof, and at each Settlement Date, did not, and does not or will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and the Prospectus or any amendment or supplement thereto will not, as of its issue date, as of the applicable filing date, as of the date hereof and at each Settlement Date, contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no warranty or representation with respect to any statement contained in or omitted from the Registration Statement or the Prospectus in reliance upon and in conformity with the information concerning the Agent and furnished in writing by or on behalf of the Agent to the Company expressly for use therein; the documents incorporated by reference in the Registration Statement and the Prospectus, at the time the Registration Statement became effective or when such documents incorporated by reference were filed with the Commission, as the case may be, when read together with the other information in the Registration Statement or the Prospectus, as the case may be, did not and will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; m. as of the issue date or date of first use and at all subsequent times through each Settlement Date, each Issuer Free Writing Prospectus did not, and at the time of each sale of Placement Shares and at the Settlement date, each such Issuer Free Writing Prospectus will not, contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; n. each Issuer Free Writing Prospectus, if any, as of its issue date and at all subsequent times through the completion of the public offer and sale of the Placement Shares did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein, and any other prospectus deemed to be a part thereof that has not been superseded or modified; o. the Company is eligible to use Free Writing Prospectuses in connection with this offering pursuant to Rules 164 and 433 under the Securities Act; any Free Writing Prospectus that the Company is required to file pursuant to Rule 433(d) has been, or will be, filed with the Commission in accordance with the requirements of the Securities Act; and each Free Writing Prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d) or that was prepared by or on behalf of or used by the Company complies or will comply in all material respects with the requirements of the Securities Act; p. except for any Issuer Free Writing Prospectuses, the Company has not prepared, used or referred to, and will not, without the prior consent of the Agent, prepare, use or refer to, any Free Writing Prospectus; q. the Prospectus and any Issuer Free Writing Prospectuses (to the extent any such Issuer Free Writing Prospectus was required to be filed with the Commission) delivered to the Agent for use in connection with the public offering of the Placement Shares contemplated herein have been and will be identical to the versions of such documents transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T under the Securities Act; r. the Company filed the Registration Statement with the Commission before using any Issuer Free Writing Prospectus; s. there are no actions, suits, proceedings, inquiries or investigations pending or, to the knowledge of the Company or the Operating Partnership, threatened against the Company or any Subsidiary or any of their respective officers and directors or to which the properties, assets or rights of any such entity are subject, at law or in equity, before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority, arbitral panel or agency which could result in a judgment, decree, award or order having a Material Adverse Effect; t. the consolidated financial statements, including the notes thereto, included in each of the Registration Statement and the Prospectus present fairly the consolidated financial position of the Company and its subsidiaries as of the dates indicated and their consolidated results of operations and changes in financial position an
Appears in 3 contracts
Sources: At the Market Issuance Sales Agreement (Great Ajax Corp.), At the Market Issuance Sales Agreement (Great Ajax Corp.), At the Market Issuance Sales Agreement (Great Ajax Corp.)
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, represent and warrant to, and agree with the Agent as of the date of this Agreement, as of each Representation Date (as defined below), as of the time of each sale of Placement Shares pursuant to this Agreement and as of each Settlement Date, unless such representation, warranty or agreement specifies a different date or time:
a. the Company has the authorized and outstanding capitalization as set forth in the Registration Statement and the Prospectus; the outstanding shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable. All of the outstanding shares of capital stock, partnership interests and membership interests, as the case may be, of the subsidiaries of the Company identified on Schedule 4 hereto (each, a “Subsidiary”) have been duly authorized and are validly issued, fully paid and non-assessable securities thereof and, except as disclosed in the Prospectus, all of the outstanding shares of capital stock, partnership interest or membership interests, as the case may be, of the Subsidiaries are directly or indirectly owned of record and beneficially by the Company; except as disclosed in the Prospectus, there are no outstanding (i) securities or obligations of the Company or any of the Subsidiaries convertible into or exchangeable for any capital stock of the Company or any such Subsidiary, (ii) warrants, rights or options to subscribe for or purchase from the Company or any such Subsidiary any such capital stock or any such convertible or exchangeable securities or obligations, or (iii) obligations of the Company or any such Subsidiary to issue any shares of capital stock, any such convertible or exchangeable securities or obligation, or any such warrants, rights or options; all issued and outstanding units of partnership interest in the Operating Partnership (“Units”) owned by the Company are owned free and clear of any perfected security interest or any other security interests, claims, liens or encumbrances;
b. each of the Company and each of the Subsidiaries has been duly incorporated, formed or organized and is validly existing as a corporation, general or limited partnership or limited liability company in good standing under the laws of its respective jurisdiction of incorporation, formation or organization with full power and authority to own its respective properties and to conduct its respective businesses as described in each of the Registration Statement and the Prospectus, and, in the case of the Company and the Operating Partnership, to execute and deliver this Agreement and to consummate the transactions contemplated herein and to perform its obligations under the Amended and Restated Management Agreement, dated October 27, 2015, by and among the Company, the Operating Partnership and the Manager (the “Management Agreement”);
c. the Company and each of the Subsidiaries is duly qualified or licensed and in good standing in each jurisdiction in which it conducts its businesses or in which it owns or leases real property or otherwise maintains an office and in which the failure, individually or in the aggregate, to be so qualified or licensed would have a material adverse effect on the assets, business, operations, earnings, prospects, properties or condition (financial or otherwise) of the Company and the Subsidiaries taken as a whole, (any such effect or change, where the context so requires, is hereinafter called a “Material Adverse Effect” or “Material Adverse Change”); except as disclosed in the Prospectus, no Subsidiary is prohibited or restricted, directly or indirectly, from paying dividends to the Company, or from making any other distribution with respect to such Subsidiary’s capital stock or from repaying to the Company or any other Subsidiary any amounts which may from time to time become due under any loans or advances to such Subsidiary from the Company or such other Subsidiary, or from transferring any such Subsidiary’s property or assets to the Company or to any other Subsidiary; other than as disclosed in the Prospectus, the Company and the Operating Partnership do not own, directly or indirectly, any capital stock or other equity securities of any other corporation or any ownership interest in any partnership, joint venture or other association;
d. the Company and the Subsidiaries are in compliance in all material respects with all applicable laws, rules, regulations, orders, decrees and judgments, including those relating to transactions with affiliates;
e. neither the Company nor any Subsidiary is in breach of or in default under (nor has any event occurred which with notice, lapse of time, or both would constitute a breach of, or default under), (i) its respective charter, bylaws, agreement of limited partnership, operating agreement or other similar organizational documents (the “Organizational Documents”), (ii) the performance or observance of any obligation, agreement, covenant or condition contained in any license, indenture, mortgage, deed of trust, loan or credit agreement or other agreement or instrument to which the Company or any Subsidiary is a party or by which any of them or their respective properties is bound, or (iii) any federal, state, local or foreign law, regulation or rule or any decree, judgment, permit or order (each, a “Law”) applicable to the Company or any Subsidiary, except, in the case of clauses (ii) and (iii) above, for such breaches or defaults which would not, individually or in the aggregate, have a Material Adverse Effect;
f. the execution, delivery and performance of this Agreement, and consummation of the transactions contemplated herein will not (A) conflict with, or result in any breach of, or constitute a default under (nor constitute any event which with notice, lapse of time, or both would constitute a breach of, or default under), (i) any provision of the Organizational Documents of the Company or any Subsidiary, or (ii) any provision of any license, indenture, mortgage, deed of trust, loan or credit agreement or other agreement or instrument to which the Company or any Subsidiary is a party or by which any of them or their respective properties may be bound or affected, or under any Law applicable to the Company or any Subsidiary, except in the case of this clause (ii) for such breaches or defaults which would not, individually or in the aggregate, have a Material Adverse Effect; or (B) result in the creation or imposition of any lien, charge, claim or encumbrance upon any property or asset of the Company or any Subsidiary;
g. this Agreement and the Management Agreement have been duly authorized, executed and delivered by the Company and the Operating Partnership and each is a legal, valid and binding agreement of the Company and the Operating Partnership enforceable in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, and by general equitable principles, and except to the extent that the indemnification and contribution provisions of Section 12 hereof may be limited by federal or state securities laws and public policy considerations in respect thereof;
h. no approval, authorization, consent or order of or filing with any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency is required in connection with the execution, delivery and performance of this Agreement by the Company or the Operating Partnership, their consummation of the transactions contemplated herein, and the Company’s sale and delivery of the Placement Shares, other than (A) such as have been obtained, or will have been obtained at the relevant Settlement Date, under the Securities Act and the Exchange Act, (B) such approvals as have been obtained in connection with the approval of the listing of the Placement Shares on the Exchange, (C) such as have been obtained or made under the rules and regulations of the Financial Industry Regulatory Authority (“FINRA”) and (D) any necessary qualification under the securities or blue sky laws of the various jurisdictions in which the Placement Shares are being offered by the Agent;
i. each of the Company and the Subsidiaries has all necessary licenses, authorizations, consents and approvals and has made all necessary filings required under any Law, and has obtained all necessary authorizations, consents and approvals from other persons, required in order to conduct their respective businesses as described in the Registration Statement and the Prospectus, except to the extent that any failure to have any such licenses, authorizations, consents or approvals, to make any such filings or to obtain any such authorizations, consents or approvals would not, individually or in the aggregate, have a Material Adverse Effect; neither the Company nor any of the Subsidiaries is required by any applicable law to obtain accreditation or certification from any governmental agency or authority in order to provide the products and services which it currently provides or which it proposes to provide as set forth in the Registration Statement and the Prospectus; neither the Company, nor any of the Subsidiaries is in violation of, in default under, or has received any notice regarding a possible violation, default or revocation of any such license, authorization, consent or approval or any federal, state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Company or any of the Subsidiaries the effect of which could result in a Material Adverse Change; and no such license, authorization, consent or approval contains a materially burdensome restriction that is not adequately disclosed in each of the Registration Statement and the Prospectus;
j. the Company meets the requirements for use of Form S-3 under the Securities Act; the Registration Statement has become effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Company, are contemplated or threatened by the Commission; and the Company has complied to the Commission’s satisfaction with any request on the part of the Commission for additional information;
k. the Registration Statement as of each effective date (including each deemed effective date with respect to the Agent pursuant to Rule 430B or otherwise under the Securities Act) and as of the date hereof, complied or will comply, and the Prospectus and any further amendments or supplements to the Registration Statement or the Prospectus at the time they were filed with the Commission, were, or will, when they become effective or are filed with the Commission, as the case may be, comply, in all material respects with the requirements of the Securities Act, including Rule 415; the documents incorporated by reference in the Registration Statement and the Prospectus, when they became effective or at the time they were or hereafter are filed with the Commission, complied and will comply in all material respects with the requirements of the Exchange Act;
l. the Registration Statement, as of each effective date (including each deemed effective date with respect to the Agent pursuant to Rule 430B or otherwise under the Securities Act), and as of the date hereof, and at each Settlement Date, did not, and does not or will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and the Prospectus or any amendment or supplement thereto will not, as of its issue date, as of the applicable filing date, as of the date hereof and at each Settlement Date, contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no warranty or representation with respect to any statement contained in or omitted from the Registration Statement or the Prospectus in reliance upon and in conformity with the information concerning the Agent and furnished in writing by or on behalf of the Agent to the Company expressly for use therein; the documents incorporated by reference in the Registration Statement and the Prospectus, at the time the Registration Statement became effective or when such documents incorporated by reference were filed with the Commission, as the case may be, when read together with the other information in the Registration Statement or the Prospectus, as the case may be, did not and will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
m. as of the issue date or date of first use and at all subsequent times through each Settlement Date, each Issuer Free Writing Prospectus did not, and at the time of each sale of Placement Shares and at the Settlement date, each such Issuer Free Writing Prospectus will not, contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
n. each Issuer Free Writing Prospectus, if any, as of its issue date and at all subsequent times through the completion of the public offer and sale of the Placement Shares did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein, and any other prospectus deemed to be a part thereof that has not been superseded or modified;
o. the Company is eligible to use Free Writing Prospectuses in connection with this offering pursuant to Rules 164 and 433 under the Securities Act; any Free Writing Prospectus that the Company is required to file pursuant to Rule 433(d) has been, or will be, filed with the Commission in accordance with the requirements of the Securities Act; and each Free Writing Prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d) or that was prepared by or on behalf of or used by the Company complies or will comply in all material respects with the requirements of the Securities Act;
p. except for any Issuer Free Writing Prospectuses, the Company has not prepared, used or referred to, and will not, without the prior consent of the Agent, prepare, use or refer to, any Free Writing Prospectus;
q. the Prospectus and any Issuer Free Writing Prospectuses (to the extent any such Issuer Free Writing Prospectus was required to be filed with the Commission) delivered to the Agent for use in connection with the public offering of the Placement Shares contemplated herein have been and will be identical to the versions of such documents transmitted to the Commission for filing via ▇E▇▇▇▇, except to the extent permitted by Regulation S-T under the Securities ActT;
r. the Company filed the Registration Statement with the Commission before using any Issuer Free Writing Prospectus;
s. there are no actions, suits, proceedings, inquiries or investigations pending or, to the knowledge of the Company or the Operating Partnership, threatened against the Company or any Subsidiary or any of their respective officers and directors or to which the properties, assets or rights of any such entity are subject, at law or in equity, before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority, arbitral panel or agency which could result in a judgment, decree, award or order having a Material Adverse Effect;
t. the consolidated financial statements, including the notes thereto, included in each of the Registration Statement and the Prospectus present fairly the consolidated financial position of the Company and its subsidiaries as of the dates indicated and their consolidated results of operations and changes in financial position anand cash flows for the peri
Appears in 3 contracts
Sources: At the Market Issuance Sales Agreement (Great Ajax Corp.), At the Market Issuance Sales Agreement (Great Ajax Corp.), At the Market Issuance Sales Agreement (Great Ajax Corp.)
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, represent and warrant to, and agree with the Agent as of the date of this Agreement, as of each Representation Date (as defined below), as of the time of each sale of Placement Shares pursuant to this Agreement and as of each Settlement Date, unless such representation, warranty or agreement specifies a different date or time:
a. the Company has the authorized and outstanding capitalization as set forth in the Registration Statement and the Prospectus; the outstanding shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable. All of the outstanding shares of capital stock, partnership interests and membership interests, as the case may be, of the subsidiaries of the Company identified on Schedule 4 hereto (each, a “Subsidiary”) have been duly authorized and are validly issued, fully paid and non-assessable securities thereof and, except as disclosed in the Prospectus, all of the outstanding shares of capital stock, partnership interest or membership interests, as the case may be, of the Subsidiaries are directly or indirectly owned of record and beneficially by the Company; except as disclosed in the Prospectus, there are no outstanding (i) securities or obligations of the Company or any of the Subsidiaries convertible into or exchangeable for any capital stock of the Company or any such Subsidiary, (ii) warrants, rights or options to subscribe for or purchase from the Company or any such Subsidiary any such capital stock or any such convertible or exchangeable securities or obligations, or (iii) obligations of the Company or any such Subsidiary to issue any shares of capital stock, any such convertible or exchangeable securities or obligation, or any such warrants, rights or options; all issued and outstanding units of partnership interest in the Operating Partnership (“Units”) owned by the Company are owned free and clear of any perfected security interest or any other security interests, claims, liens or encumbrances;
b. each of the Company and each of the Subsidiaries has been duly incorporated, formed or organized and is validly existing as a corporation, general or limited partnership or limited liability company in good standing under the laws of its respective jurisdiction of incorporation, formation or organization with full power and authority to own its respective properties and to conduct its respective businesses as described in each of the Registration Statement and the Prospectus, and, in the case of the Company and the Operating Partnership, to execute and deliver this Agreement and to consummate the transactions contemplated herein and to perform its obligations under the Third Amended and Restated Management Agreement, dated October 27April 28, 2015, 2020 by and among the Company, the Operating Partnership and the Manager Manager, as amended from time to time, including by the First Amendment to the Third Amended and Restated Management Agreement, dated as of March 1, 2023 (as so amended, the “Management Agreement”);
c. the Company and each of the Subsidiaries is duly qualified or licensed and in good standing in each jurisdiction in which it conducts its businesses or in which it owns or leases real property or otherwise maintains an office and in which the failure, individually or in the aggregate, to be so qualified or licensed would have a material adverse effect on the assets, business, operations, earnings, prospects, properties or condition (financial or otherwise) of the Company and the Subsidiaries taken as a whole, (any such effect or change, where the context so requires, is hereinafter called a “Material Adverse Effect” or “Material Adverse Change”); except as disclosed in the Prospectus, no Subsidiary is prohibited or restricted, directly or indirectly, from paying dividends to the Company, or from making any other distribution with respect to such Subsidiary’s capital stock or from repaying to the Company or any other Subsidiary any amounts which may from time to time become due under any loans or advances to such Subsidiary from the Company or such other Subsidiary, or from transferring any such Subsidiary’s property or assets to the Company or to any other Subsidiary; other than as disclosed in the Prospectus, the Company and the Operating Partnership do not own, directly or indirectly, any capital stock or other equity securities of any other corporation or any ownership interest in any partnership, joint venture or other association;
d. the Company and the Subsidiaries are in compliance in all material respects with all applicable laws, rules, regulations, orders, decrees and judgments, including those relating to transactions with affiliates;
e. neither the Company nor any Subsidiary is in breach of or in default under (nor has any event occurred which with notice, lapse of time, or both would constitute a breach of, or default under), (i) its respective charter, bylaws, agreement of limited partnership, operating agreement or other similar organizational documents (the “Organizational Documents”), (ii) the performance or observance of any obligation, agreement, covenant or condition contained in any license, indenture, mortgage, deed of trust, loan or credit agreement or other agreement or instrument to which the Company or any Subsidiary is a party or by which any of them or their respective properties is bound, or (iii) any federal, state, local or foreign law, regulation or rule or any decree, judgment, permit or order (each, a “Law”) applicable to the Company or any Subsidiary, except, in the case of clauses (ii) and (iii) above, for such breaches or defaults which would not, individually or in the aggregate, have a Material Adverse Effect;
f. the execution, delivery and performance of this Agreement, and consummation of the transactions contemplated herein will not (A) conflict with, or result in any breach of, or constitute a default under (nor constitute any event which with notice, lapse of time, or both would constitute a breach of, or default under), (i) any provision of the Organizational Documents of the Company or any Subsidiary, or (ii) any provision of any license, indenture, mortgage, deed of trust, loan or credit agreement or other agreement or instrument to which the Company or any Subsidiary is a party or by which any of them or their respective properties may be bound or affected, or under any Law applicable to the Company or any Subsidiary, except in the case of this clause (ii) for such breaches or defaults which would not, individually or in the aggregate, have a Material Adverse Effect; or (B) result in the creation or imposition of any lien, charge, claim or encumbrance upon any property or asset of the Company or any Subsidiary;
g. this Agreement and the Management Agreement have been duly authorized, executed and delivered by the Company and the Operating Partnership and each is a legal, valid and binding agreement of the Company and the Operating Partnership enforceable in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, and by general equitable principles, and except to the extent that the indemnification and contribution provisions of Section 12 hereof may be limited by federal or state securities laws and public policy considerations in respect thereof;
h. no approval, authorization, consent or order of or filing with any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency is required in connection with the execution, delivery and performance of this Agreement by the Company or the Operating Partnership, their consummation of the transactions contemplated herein, and the Company’s sale and delivery of the Placement Shares, other than (A) such as have been obtained, or will have been obtained at the relevant Settlement Date, under the Securities Act and the Exchange Act, (B) such approvals as have been obtained in connection with the approval of the listing of the Placement Shares on the Exchange, (C) such as have been obtained or made under the rules and regulations of the Financial Industry Regulatory Authority (“FINRA”) and (D) any necessary qualification under the securities or blue sky laws of the various jurisdictions in which the Placement Shares are being offered by the Agent;
i. each of the Company and the Subsidiaries has all necessary licenses, authorizations, consents and approvals and has made all necessary filings required under any Law, and has obtained all necessary authorizations, consents and approvals from other persons, required in order to conduct their respective businesses as described in the Registration Statement and the Prospectus, except to the extent that any failure to have any such licenses, authorizations, consents or approvals, to make any such filings or to obtain any such authorizations, consents or approvals would not, individually or in the aggregate, have a Material Adverse Effect; neither the Company nor any of the Subsidiaries is required by any applicable law to obtain accreditation or certification from any governmental agency or authority in order to provide the products and services which it currently provides or which it proposes to provide as set forth in the Registration Statement and the Prospectus; neither the Company, nor any of the Subsidiaries is in violation of, in default under, or has received any notice regarding a possible violation, default or revocation of any such license, authorization, consent or approval or any federal, state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Company or any of the Subsidiaries the effect of which could result in a Material Adverse Change; and no such license, authorization, consent or approval contains a materially burdensome restriction that is not adequately disclosed in each of the Registration Statement and the Prospectus;
j. the Company meets the requirements for use of Form S-3 under the Securities Act; the Registration Statement has become effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Company, are contemplated or threatened by the Commission; and the Company has complied to the Commission’s satisfaction with any request on the part of the Commission for additional information;
k. the Registration Statement as of each effective date (including each deemed effective date with respect to the Agent pursuant to Rule 430B or otherwise under the Securities Act) and as of the date hereof, complied or will comply, and the Prospectus and any further amendments or supplements to the Registration Statement or the Prospectus at the time they were filed with the Commission, were, or will, when they become effective or are filed with the Commission, as the case may be, comply, in all material respects with the requirements of the Securities Act, including Rule 415; the documents incorporated by reference in the Registration Statement and the Prospectus, when they became effective or at the time they were or hereafter are filed with the Commission, complied and will comply in all material respects with the requirements of the Exchange Act;
l. the Registration Statement, as of each effective date (including each deemed effective date with respect to the Agent pursuant to Rule 430B or otherwise under the Securities Act), and as of the date hereof, and at each Settlement Date, did not, and does not or will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and the Prospectus or any amendment or supplement thereto will not, as of its issue date, as of the applicable filing date, as of the date hereof and at each Settlement Date, contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no warranty or representation with respect to any statement contained in or omitted from the Registration Statement or the Prospectus in reliance upon and in conformity with the information concerning the Agent and furnished in writing by or on behalf of the Agent to the Company expressly for use therein; the documents incorporated by reference in the Registration Statement and the Prospectus, at the time the Registration Statement became effective or when such documents incorporated by reference were filed with the Commission, as the case may be, when read together with the other information in the Registration Statement or the Prospectus, as the case may be, did not and will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
m. as of the issue date or date of first use and at all subsequent times through each Settlement Date, each Issuer Free Writing Prospectus did not, and at the time of each sale of Placement Shares and at the Settlement date, each such Issuer Free Writing Prospectus will not, contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
n. each Issuer Free Writing Prospectus, if any, as of its issue date and at all subsequent times through the completion of the public offer and sale of the Placement Shares did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein, and any other prospectus deemed to be a part thereof that has not been superseded or modified;
o. the Company is eligible to use Free Writing Prospectuses in connection with this offering pursuant to Rules 164 and 433 under the Securities Act; any Free Writing Prospectus that the Company is required to file pursuant to Rule 433(d) has been, or will be, filed with the Commission in accordance with the requirements of the Securities Act; and each Free Writing Prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d) or that was prepared by or on behalf of or used by the Company complies or will comply in all material respects with the requirements of the Securities Act;
p. except for any Issuer Free Writing Prospectuses, the Company has not prepared, used or referred to, and will not, without the prior consent of the Agent, prepare, use or refer to, any Free Writing Prospectus;
q. the Prospectus and any Issuer Free Writing Prospectuses (to the extent any such Issuer Free Writing Prospectus was required to be filed with the Commission) delivered to the Agent for use in connection with the public offering of the Placement Shares contemplated herein have been and will be identical to the versions of such documents transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T under the Securities Act;
r. the Company filed the Registration Statement with the Commission before using any Issuer Free Writing Prospectus;
s. there are no actions, suits, proceedings, inquiries or investigations pending or, to the knowledge of the Company or the Operating Partnership, threatened against the Company or any Subsidiary or any of their respective officers and directors or to which the properties, assets or rights of any such entity are subject, at law or in equity, before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority, arbitral panel or agency which could result in a judgment, decree, award or order having a Material Adverse Effect;
t. the consolidated financial statements, including the notes thereto, included in each of the Registration Statement and the Prospectus present fairly the consolidated financial position of the Company and its subsidiaries as of the dates indicated and their consolidated results of operations and changes in financial position anconsolidate
Appears in 2 contracts
Sources: At the Market Issuance Sales Agreement (Great Ajax Corp.), At the Market Issuance Sales Agreement (Great Ajax Corp.)
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, represent and warrant toto the Underwriters, and agree with the Agent as of the date of this Agreement, as of each Representation Date (as defined below)hereof, as of the time of each sale of Placement Shares pursuant to this Agreement Closing Time and as of each Settlement Dateany Date of Delivery, unless such representation, warranty or agreement specifies a different date or timethat:
a. (i) the Company has the an authorized and outstanding capitalization as set forth in both the Registration Statement Prospectus and the ProspectusDisclosure Package; the outstanding shares of capital stock of the Company and NRFC Sub-REIT Corp., a Maryland corporation and a subsidiary of the Operating Partnership (the “Private REIT”), have been duly and validly authorized and issued and are fully paid and non-assessable. All nonassessable;
(ii) the outstanding partnership interests of the outstanding shares of capital stock, partnership interests and membership interests, as the case may be, of the subsidiaries of the Company identified on Schedule 4 hereto (each, a “Subsidiary”) Operating Partnership have been duly and validly authorized and are validly issued, fully paid and non-assessable securities thereof and, except as disclosed in the Prospectus, ; all of the outstanding shares of capital stock, partnership interest or membership interests, as the case may be, stock of the Subsidiaries Private REIT are directly or and indirectly owned of record and beneficially by the Operating Partnership and the Company; , respectively;
(iii) except as disclosed in both the ProspectusProspectus and the Disclosure Package, there are no outstanding (iA) securities or obligations of the Company or any the subsidiaries of the Subsidiaries Company required to be set forth in Exhibit 21.1 to the Company’s Form 10-K for the fiscal year ended December 31, 2012 (the “Subsidiaries”), convertible into or exchangeable for any capital stock of or partnership interests, membership interests or other equity interests, as the case may be, in the Company or any such Subsidiary, (iiB) warrants, rights or options to subscribe for or purchase from the Company or any such Subsidiary any such capital stock or any such convertible or exchangeable securities or obligations, or (iiiC) obligations of the Company or any such Subsidiary to issue any shares of capital stocksecurities or obligations, any such convertible or exchangeable securities or obligationobligations, or any such warrants, rights or options; all issued options the existence of which, in each case of (A), (B) and outstanding units of partnership interest (C), is required to be disclosed in the Operating Partnership (“Units”) owned by Prospectus and the Company Disclosure Package and are owned free and clear of any perfected security interest or any other security interests, claims, liens or encumbrancesnot so disclosed;
b. (iv) each of the Company and each of the Subsidiaries has been duly incorporated, formed incorporated or organized and is validly existing as a corporation, general or limited partnership or limited liability company company, as the case may be, except to the extent, in the case of the Subsidiaries, that the failure to be so organized would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect and is in good standing under the laws of its respective jurisdiction of incorporation, formation incorporation or organization with full power except to the extent that the failure to be so qualified or in good standing would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
(v) each of the Company and the Subsidiaries has the corporate, partnership or limited liability company power, as the case may be, and authority to own its their respective properties and to conduct its their respective businesses businesses, each as described in each of the Registration Statement Statement, the Prospectus and the ProspectusDisclosure Package except to the extent that the failure to have such power or authority would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, and, in the case of the Company and the Operating Partnership, to execute and deliver this Agreement and to consummate the transactions contemplated herein and to perform its obligations under the Amended and Restated Management described in this Agreement, dated October 27, 2015, by and among the Company, the Operating Partnership and the Manager (the “Management Agreement”);
c. (vi) the Company and each of the Subsidiaries is are duly qualified or licensed and in good standing in each jurisdiction in which it conducts its businesses where such qualification or in which it owns or leases real property or otherwise maintains an office and in which license is required except where the failure, individually or in the aggregate, to be so qualified or licensed would not reasonably be expected to have a material adverse effect on the assets, business, operations, earnings, prospects, properties or condition (financial or otherwise) of the Company and the Subsidiaries taken as a whole, (any such effect or change, where the context so requires, is hereinafter called a “Material Adverse Effect” or “Material Adverse Change”); ;
(vii) except as disclosed in both the ProspectusProspectus and the Disclosure Package, no Subsidiary the Operating Partnership is neither contractually prohibited or nor contractually restricted, directly or indirectly, from paying dividends to the Company, or from making any other distribution with respect to such Subsidiarythe Operating Partnership’s partnership interests or from repaying to the Company or another subsidiary of the Company any amounts which may from time to time become due under any loans or advances to the Operating Partnership from the Company or another subsidiary of the Company, or from transferring the Operating Partnership’s property or assets to the Company or another subsidiary of the Company;
(viii) except as disclosed in both the Prospectus and the Disclosure Package, the Private REIT is neither contractually prohibited nor contractually restricted, directly or indirectly, from paying dividends to the Operating Partnership, or from making any other distribution with respect to the Private REIT’s shares of capital stock or from repaying to the Company, the Operating Partnership or another subsidiary of the Company any amounts which may from time to time become due under any loans or advances to the Private REIT from the Company, the Operating Partnership or another subsidiary of the Company, or from transferring the Private REIT’s property or assets to the Company, the Operating Partnership or another subsidiary of the Company;
(ix) except as disclosed in both the Prospectus and the Disclosure Package, no Subsidiary (other than the Operating Partnership and the Private REIT, which are covered above) is contractually prohibited or restricted, directly or indirectly, from paying dividends to the Operating Partnership or the Private REIT, to the extent such Subsidiary is a direct subsidiary of the Operating Partnership or the Private REIT, or from making any other distribution with respect to the outstanding membership interests of such Subsidiary or from repaying to the Company, the Operating Partnership or another subsidiary of the Company any amounts which may from time to time become due under any loans or advances to such Subsidiary from the Company Company, the Operating Partnership or such other Subsidiaryanother subsidiary of the Company, or from transferring any such Subsidiary’s property or assets to the Company, the Operating Partnership or another subsidiary of the Company except for any such prohibitions and restrictions that would not individually or in the aggregate reasonably be expected to have a Material Adverse Effect or to the extent that any other Subsidiary; other than such restriction would currently materially limit the Company’s ability to pay dividends or that would be reasonably likely to materially limit the future payment of dividends on Common Stock;
(x) the Agreement of Limited Partnership of the Operating Partnership, dated as of October 19, 2004, as amended (the “Partnership Agreement”), has been duly and validly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally or by general principles of equity, and except to the extent that the indemnification and contribution provisions thereof may be limited by federal or state securities laws and public policy considerations in respect thereof;
(xi) the Company is the sole general partner of the Operating Partnership and owns units of partnership interest in the Operating Partnership (“OP Units”) representing an ownership interest in the Operating Partnership in the percentage set forth in both the Prospectus and the Disclosure Package, and, except as disclosed in the Prospectus, the Company Prospectus and the Operating Partnership do not ownDisclosure Package, directly or indirectlysuch ownership interest is free and clear of any pledge, any capital stock lien, encumbrance, security interest or other equity securities of claim except for any other corporation or any ownership pledge, lien, encumbrance, security interest in any partnership, joint venture or other associationclaim that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
d. the Company and the Subsidiaries are in compliance in all material respects with all applicable laws, rules, regulations, orders, decrees and judgments, including those relating to transactions with affiliates;
e. (xii) neither the Company nor any Subsidiary is in breach of or in default under (nor has any event occurred which with notice, lapse of time, or both would constitute a breach of, or default under), (i) its respective charterorganizational documents, bylaws, agreement of limited partnership, operating agreement or other similar organizational documents (the “Organizational Documents”), (ii) in the performance or observance of any obligation, agreement, covenant or condition contained in any license, indenture, mortgage, deed of trust, loan or credit agreement or other agreement or instrument to which the Company or any Subsidiary is a party or by which any of them or their respective properties or assets is bound, or (iii) any federal, state, local or foreign law, regulation or rule or any decree, judgment, permit or order (each, a “Law”) applicable to the Company or any Subsidiary, except, in the case of clauses (ii) and (iii) above, except for such breaches or defaults which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
f. (xiii) the execution, delivery and performance of this Agreement, Agreement and consummation of the transactions contemplated herein will not (A) conflict with, or result in any breach of, or constitute a default under (nor constitute any event which with notice, lapse of time, or both would constitute a breach of, or default under), ): (i1) any provision of the Organizational Documents organizational documents of the Company or any Subsidiary, or (ii2) any provision of any license, indenture, mortgage, deed of trust, loan or credit agreement or other agreement or instrument to which the Company or any Subsidiary is a party or by which any of them or their respective assets or properties may be bound or affected, or under any Law federal, state, local or foreign law, regulation or rule or any decree, judgment or order applicable to the Company or any Subsidiary, except in the case of this clause (ii2) for such breaches or defaults which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse EffectEffect and which would not reasonably be expected to have a material adverse effect on the Company and the Operating Partnership’s ability to perform their agreed upon obligations under the Agreement; or (B) result in the creation or imposition of any lien, charge, claim or encumbrance upon any property or asset of the Company or any Subsidiary, except for such liens, charges, claims or encumbrances which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
g. (xiv) this Agreement and the Management Agreement have has been duly authorized, executed and delivered by each of the Company and the Operating Partnership and each is a legal, valid and binding agreement of each of the Company and the Operating Partnership enforceable against the Company and the Operating Partnership in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, and by general equitable principles, and except to the extent that the indemnification and contribution provisions of Section 12 9 hereof may be limited by federal or state securities laws and public policy considerations in respect thereof;
h. (xv) no approval, authorization, consent or order of or filing with any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency is required in connection with the Company’s or the Operating Partnership’s execution, delivery and performance of this Agreement Agreement, the consummation of the transactions contemplated herein by the Company or the Operating Partnership, their consummation of the transactions contemplated herein, and including the Company’s issuance, sale and delivery of the Placement Shares, other than (A) such as have been obtained, or will have been obtained at the Closing Time or the relevant Settlement DateDate of Delivery, as the case may be, under the Securities Act and the Exchange Act, (B) such approvals as have been obtained in connection with the approval of the listing of the Placement Shares on the Exchange, (C) such as have been obtained or made under the rules and regulations of the Financial Industry Regulatory Authority (“FINRA”) and (D) any necessary qualification under the securities or “blue sky sky” laws of the various jurisdictions in which the Placement Shares are being offered by the AgentUnderwriters, or (C) any such approvals, authorizations, consents, orders, or filings that if not obtained or made, would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect and which would not reasonably be expected to have a material adverse effect on the Company and the Operating Partnership’s ability to perform their agreed upon obligations under this Agreement;
i. (xvi) each of the Company and the Subsidiaries has all necessary licenses, authorizations, consents and approvals and has made all necessary filings required under any Lawfederal, state, local or foreign law, regulation or rule, and has obtained all necessary authorizations, consents and approvals from other persons, required in order to conduct their respective businesses as described in both the Registration Statement Prospectus and the ProspectusDisclosure Package, except to the extent that any failure to have any such licenses, authorizations, consents or approvals, to make any such filings or to obtain any such authorizations, consents or approvals would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; neither the Company nor any of the Subsidiaries is required by any applicable law to obtain accreditation or certification from any governmental agency or authority in order to provide the products and services which it currently provides or which it proposes to provide as set forth in the Registration Statement and the Prospectus; neither the Company, nor any of the Subsidiaries is in violation of, in default under, or has received any notice regarding a possible violation, default or revocation of any such license, authorization, consent or approval or any federal, state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Company or any of the Subsidiaries the effect of which could would reasonably be expected to result in a Material Adverse Change; and no such license;
(A) at the time of filing the Original Registration Statement, authorization, consent or approval contains a materially burdensome restriction that is not adequately disclosed in each (B) at the time of the most recent amendment to the Registration Statement for the purposes of complying with Section 10(a)(3) of the Securities 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) and the Prospectus;
j. (C) at any time the Company meets or any person acting on its behalf (within the requirements meaning, for use this clause only, of Form S-3 under Rule 163(c) of the Securities ActAct Regulations) made any offer relating to the Shares in reliance on the exemption of Rule 163 of the Securities Act Regulations (“Rule 163”), the Company was and is a “well-known seasoned issuer” as defined in Rule 405, including not having been and not being an “ineligible issuer” as defined in Rule 405; the Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 and the Shares, since their registration on the Registration Statement, have been and remain eligible for registration by the Company on a Rule 405 “automatic shelf registration statement”; and the Company has become effective under not received from the Commission any notice pursuant to Rule 401(g)(2) of the Securities Act Regulations objecting to the use of the automatic shelf registration statement form;
(xviii) the Original Registration Statement became effective upon filing under Rule 462(e) on February 19, 2013, and any post-effective amendment thereto also became effective upon filing under Rule 462(e); no stop order suspending the effectiveness or the use of the Registration Statement has been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Company, are contemplated or threatened by the Commission; , and the Company has complied to the Commission’s satisfaction with any request on the part of the Commission for additional informationinformation have been complied with;
k. (xix) any offer that is a written communication relating to the Shares made by the Company or any person acting on its behalf (within the meaning, for this sentence only, of Rule 163(c)) prior to the filing of the Original Registration Statement as has been filed with the Commission in accordance with Rule 163 and otherwise complied with the requirements of Rule 163, including without limitation the legending requirement, to qualify such offer for the exemption from Section 5(c) of the Securities Act provided by Rule 163;
(xx) at the respective times the Original Registration Statement became effective and each effective date (including amendment thereto became effective, at each deemed effective date with respect to the Agent Underwriters pursuant to Rule 430B or otherwise under 430B(f)(2) of the Securities Act) Act Regulations and as of the date hereof, complied or will comply, and the Prospectus and any further amendments or supplements to the Registration Statement or the Prospectus at the time they were filed with the Commission, were, or will, when they become effective or are filed with the Commission, as the case may be, comply, in all material respects with the requirements of the Securities Act, including Rule 415; the documents incorporated by reference in the Registration Statement and the Prospectus, when they became effective or at the time they were or hereafter are filed with the Commission, any amendments thereto complied and will comply in all material respects with the requirements of the Exchange Act;
l. the Registration Statement, as of each effective date (including each deemed effective date with respect to the Agent pursuant to Rule 430B or otherwise under Securities Act and the Securities Act)Act Regulations, and as of the date hereof, and at each Settlement Date, did not, and does not or will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and the Prospectus or any amendment or supplement thereto will not, as of its issue date, as of the applicable filing date, as of the date hereof and at each Settlement Date, contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no warranty or representation with respect to any statement contained in or omitted from the Registration Statement or the Prospectus any amendment thereto in reliance upon and in conformity with the information concerning the Agent Underwriters and furnished in writing by or on behalf of the Agent to the Company expressly for use therein; the documents incorporated by reference in the Registration Statement and the Prospectus, at the time the Registration Statement became effective or when such documents incorporated by reference were filed with the Commission, as the case may be, when read together with the other information in the Registration Statement or the Prospectus, as the case may be, did not and will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
m. as of the issue date or date of first use and at all subsequent times through each Settlement Date, each Issuer Free Writing Prospectus did not, and at the time of each sale of Placement Shares and at the Settlement date, each such Issuer Free Writing Prospectus will not, contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
n. each Issuer Free Writing Prospectus, if any, as of its issue date and at all subsequent times through the completion of the public offer and sale of the Placement Shares did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein, and any other prospectus deemed to be a part thereof that has not been superseded or modified;
o. the Company is eligible to use Free Writing Prospectuses in connection with this offering pursuant to Rules 164 and 433 under the Securities Act; any Free Writing Prospectus that the Company is required to file pursuant to Rule 433(d) has been, or will be, filed with the Commission in accordance with the requirements of the Securities Act; and each Free Writing Prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d) or that was prepared by or on behalf of or used by the Company complies or will comply in all material respects with the requirements of the Securities Act;
p. except for any Issuer Free Writing Prospectuses, the Company has not prepared, used or referred to, and will not, without the prior consent of the Agent, prepare, use or refer to, any Free Writing Prospectus;
q. the Prospectus and any Issuer Free Writing Prospectuses (to the extent any such Issuer Free Writing Prospectus was required to be filed with the Commission) delivered to the Agent for use in connection with the public offering of the Placement Shares contemplated herein have been and will be identical to the versions of such documents transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T under the Securities Act;
r. the Company filed the Registration Statement with the Commission before using any Issuer Free Writing Prospectus;
s. there are no actions, suits, proceedings, inquiries or investigations pending or, to the knowledge of the Company or the Operating Partnership, threatened against the Company or any Subsidiary or any of their respective officers and directors or to which the properties, assets or rights of any such entity are subject, at law or in equity, before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority, arbitral panel or agency which could result in a judgment, decree, award or order having a Material Adverse Effect;
t. the consolidated financial statements, including the notes thereto, included in each of the Registration Statement and the Prospectus present fairly the consolidated financial position of the Company and its subsidiaries as of the dates indicated and their consolidated results of operations and changes in financial position anUnderwriters throug
Appears in 2 contracts
Sources: Underwriting Agreement (Northstar Realty Finance Corp.), Underwriting Agreement (Northstar Realty Finance Corp.)
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, represent and warrant toto the Underwriters, and agree with the Agent as of the date of this Agreement, as of each Representation Date (as defined below)hereof, as of the time of each sale of Placement Shares pursuant to this Agreement Closing Time and as of each Settlement Dateany Date of Delivery, unless such representation, warranty or agreement specifies a different date or timethat:
a. (i) the Company has the an authorized and outstanding capitalization as set forth in both the Registration Statement Prospectus and the ProspectusDisclosure Package; the outstanding shares of capital stock of the Company and NRFC Sub-REIT Corp., a Maryland corporation and a subsidiary of the Operating Partnership (the “Private REIT”), have been duly and validly authorized and issued and are fully paid and non-assessable. All nonassessable;
(ii) the outstanding partnership interests of the outstanding shares of capital stock, partnership interests and membership interests, as the case may be, of the subsidiaries of the Company identified on Schedule 4 hereto (each, a “Subsidiary”) Operating Partnership have been duly and validly authorized and are validly issued, fully paid and non-assessable securities thereof and, except as disclosed in the Prospectus, ; all of the outstanding shares of capital stock, partnership interest or membership interests, as the case may be, stock of the Subsidiaries Private REIT are directly or and indirectly owned of record and beneficially by the Operating Partnership and the Company; , respectively;
(iii) except as disclosed in both the ProspectusProspectus and the Disclosure Package, there are no outstanding (iA) securities or obligations of the Company or any the subsidiaries of the Subsidiaries Company required to be set forth in Exhibit 21.1 to the Company’s Form 10-K for the fiscal year ended December 31, 2011 (the “Subsidiaries”), convertible into or exchangeable for any capital stock of or partnership interests, membership interests or other equity interests, as the case may be, in the Company or any such Subsidiary, (iiB) warrants, rights or options to subscribe for or purchase from the Company or any such Subsidiary any such capital stock or any such convertible or exchangeable securities or obligations, or (iiiC) obligations of the Company or any such Subsidiary to issue any shares of capital stocksecurities or obligations, any such convertible or exchangeable securities or obligationobligations, or any such warrants, rights or options; all issued options the existence of which, in each case of (A), (B) and outstanding units of partnership interest (C), is required to be disclosed in the Operating Partnership (“Units”) owned by Prospectus and the Company Disclosure Package and are owned free and clear of any perfected security interest or any other security interests, claims, liens or encumbrancesnot so disclosed;
b. (iv) each of the Company and each of the Subsidiaries has been duly incorporated, formed incorporated or organized and is validly existing as a corporation, general or limited partnership or limited liability company company, as the case may be, except to the extent, in the case of the Subsidiaries, that the failure to be so organized would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect and is in good standing under the laws of its respective jurisdiction of incorporation, formation incorporation or organization with full power except to the extent that the failure to be so qualified or in good standing would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
(v) each of the Company and the Subsidiaries have the corporate, partnership or limited liability company power, as the case may be, and authority to own its their respective properties and to conduct its their respective businesses businesses, each as described in each of the Registration Statement Statement, the Prospectus and the ProspectusDisclosure Package except to the extent that the failure to have such power or authority would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, and, in the case of the Company and the Operating Partnership, to execute and deliver this Agreement and to consummate the transactions contemplated herein and to perform its obligations under the Amended and Restated Management described in this Agreement, dated October 27, 2015, by and among the Company, the Operating Partnership and the Manager (the “Management Agreement”);
c. (vi) the Company and each of the Subsidiaries is are duly qualified or licensed and in good standing in each jurisdiction in which it conducts its businesses where such qualification or in which it owns or leases real property or otherwise maintains an office and in which license is required except where the failure, individually or in the aggregate, to be so qualified or licensed would not reasonably be expected to have a material adverse effect on the assets, business, operations, earnings, prospects, properties or condition (financial or otherwise) of the Company and the Subsidiaries taken as a whole, (any such effect or change, where the context so requires, is hereinafter called a “Material Adverse Effect” or “Material Adverse Change”); ;
(vii) except as disclosed in both the ProspectusProspectus and the Disclosure Package, no Subsidiary the Operating Partnership is neither contractually prohibited or nor contractually restricted, directly or indirectly, from paying dividends to the Company, or from making any other distribution with respect to such Subsidiarythe Operating Partnership’s partnership interests or from repaying to the Company or another subsidiary of the Company any amounts which may from time to time become due under any loans or advances to the Operating Partnership from the Company or another subsidiary of the Company, or from transferring the Operating Partnership’s property or assets to the Company or another subsidiary of the Company;
(viii) except as disclosed in both the Prospectus and the Disclosure Package, the Private REIT is neither contractually prohibited nor contractually restricted, directly or indirectly, from paying dividends to the Operating Partnership, or from making any other distribution with respect to the Private REIT’s shares of capital stock or from repaying to the Company, the Operating Partnership or another subsidiary of the Company any amounts which may from time to time become due under any loans or advances to the Private REIT from the Company, the Operating Partnership or another subsidiary of the Company, or from transferring the Private REIT’s property or assets to the Company, the Operating Partnership or another subsidiary of the Company;
(ix) except as disclosed in both the Prospectus and the Disclosure Package, no Subsidiary (other than the Operating Partnership and the Private REIT, which are covered above) is contractually prohibited or restricted, directly or indirectly, from paying dividends to the Operating Partnership or the Private REIT, to the extent such Subsidiary is a direct subsidiary of the Operating Partnership or the Private REIT, or from making any other distribution with respect to the outstanding membership interests of such Subsidiary or from repaying to the Company, the Operating Partnership or another subsidiary of the Company any amounts which may from time to time become due under any loans or advances to such Subsidiary from the Company Company, the Operating Partnership or such other Subsidiaryanother subsidiary of the Company, or from transferring any such Subsidiary’s property or assets to the Company, the Operating Partnership or another subsidiary of the Company except for any such prohibitions and restrictions that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect or to the extent that any other Subsidiary; other than such restriction would currently materially limit the Company’s ability to pay dividends or that would be reasonably likely to materially limit the future payment of dividends on Preferred Stock;
(x) the Agreement of Limited Partnership of the Operating Partnership, dated as of October 19, 2004, as amended (the “Partnership Agreement”), has been duly and validly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally or by general principles of equity, and except to the extent that the indemnification and contribution provisions thereof may be limited by federal or state securities laws and public policy considerations in respect thereof;
(xi) the Company is the sole general partner of the Operating Partnership and owns units of partnership interest in the Operating Partnership (“OP Units”) representing an ownership interest in the Operating Partnership in the percentage set forth in both the Prospectus and the Disclosure Package, and, except as disclosed in the Prospectus, the Company Prospectus and the Operating Partnership do not ownDisclosure Package, directly or indirectlysuch ownership interest is free and clear of any pledge, any capital stock lien, encumbrance, security interest or other equity securities of claim except for any other corporation or any ownership pledge, lien, encumbrance, security interest in any partnership, joint venture or other associationclaim that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
d. the Company and the Subsidiaries are in compliance in all material respects with all applicable laws, rules, regulations, orders, decrees and judgments, including those relating to transactions with affiliates;
e. (xii) neither the Company nor any Subsidiary is in breach of or in default under (nor has any event occurred which with notice, lapse of time, or both would constitute a breach of, or default under), (i) its respective charterorganizational documents, bylaws, agreement of limited partnership, operating agreement or other similar organizational documents (the “Organizational Documents”), (ii) in the performance or observance of any obligation, agreement, covenant or condition contained in any license, indenture, mortgage, deed of trust, loan or credit agreement or other agreement or instrument to which the Company or any Subsidiary is a party or by which any of them or their respective properties or assets is bound, or (iii) any federal, state, local or foreign law, regulation or rule or any decree, judgment, permit or order (each, a “Law”) applicable to the Company or any Subsidiary, except, in the case of clauses (ii) and (iii) above, except for such breaches or defaults which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
f. (xiii) the execution, delivery and performance of this Agreement, Agreement and consummation of the transactions contemplated herein will not (A) conflict with, or result in any breach of, or constitute a default under (nor constitute any event which with notice, lapse of time, or both would constitute a breach of, or default under), ): (i1) any provision of the Organizational Documents organizational documents of the Company or any Subsidiary, or (ii2) any provision of any license, indenture, mortgage, deed of trust, loan or credit agreement or other agreement or instrument to which the Company or any Subsidiary is a party or by which any of them or their respective assets or properties may be bound or affected, or under any Law federal, state, local or foreign law, regulation or rule or any decree, judgment or order applicable to the Company or any Subsidiary, except in the case of this clause (ii2) for such breaches or defaults which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse EffectEffect and which would not reasonably be expected to have a material adverse effect on the Company and the Operating Partnership’s ability to perform their agreed upon obligations under the Agreement; or (B) result in the creation or imposition of any lien, charge, claim or encumbrance upon any property or asset of the Company or any Subsidiary, except for such liens, charges, claims or encumbrances which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
g. (xiv) this Agreement and the Management Agreement have has been duly authorized, executed and delivered by each of the Company and the Operating Partnership and each is a legal, valid and binding agreement of each of the Company and the Operating Partnership enforceable against the Company and the Operating Partnership in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, and by general equitable principles, and except to the extent that the indemnification and contribution provisions of Section 12 9 hereof may be limited by federal or state securities laws and public policy considerations in respect thereof;
h. (xv) no approval, authorization, consent or order of or filing with any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency is required in connection with the Company’s or the Operating Partnership’s execution, delivery and performance of this Agreement Agreement, the consummation of the transactions contemplated herein by the Company or the Operating Partnership, their consummation of the transactions contemplated herein, and including the Company’s issuance, sale and delivery of the Placement Shares, other than (A) such as have been obtained, or will have been obtained at the Closing Time or the relevant Settlement DateDate of Delivery, as the case may be, under the Securities Act and the Exchange Act, or (B) such approvals as have been obtained in connection with the approval of the listing of the Placement Shares on the Exchange, (C) such as have been obtained or made under the rules and regulations of the Financial Industry Regulatory Authority (“FINRA”) and (D) any necessary qualification under the securities or “blue sky sky” laws of the various jurisdictions in which the Placement Shares are being offered by the AgentUnderwriters, or (C), any such approvals, authorizations, consents, orders, or filings that if not obtained or made, would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect and which would not reasonably be expected to have a material adverse effect on the Company and the Operating Partnership’s ability to perform their agreed upon obligations under this Agreement;
i. (xvi) each of the Company and the Subsidiaries has all necessary licenses, authorizations, consents and approvals and has made all necessary filings required under any Lawfederal, state, local or foreign law, regulation or rule, and has obtained all necessary authorizations, consents and approvals from other persons, required in order to conduct their respective businesses as described in both the Registration Statement Prospectus and the ProspectusDisclosure Package, except to the extent that any failure to have any such licenses, authorizations, consents or approvals, to make any such filings or to obtain any such authorizations, consents or approvals would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; neither the Company nor any of the Subsidiaries is required by any applicable law to obtain accreditation or certification from any governmental agency or authority in order to provide the products and services which it currently provides or which it proposes to provide as set forth in the Registration Statement and the Prospectus; neither the Company, nor any of the Subsidiaries is in violation of, in default under, or has received any notice regarding a possible violation, default or revocation of any such license, authorization, consent or approval or any federal, state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Company or any of the Subsidiaries the effect of which could would reasonably be expected to result in a Material Adverse Change; and no such license, authorization, consent or approval contains a materially burdensome restriction that is not adequately disclosed in each of the Registration Statement and the Prospectus;
j. the Company meets the requirements for use of Form S-3 under the Securities Act; (xvii) the Registration Statement has become been declared effective under the Securities Act and by the Commission; the Rule 462(b) Registration Statement, if any, is effective; no stop order suspending the effectiveness or the use of the Registration Statement Statement, including any Rule 462(b) Registration Statement, has been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Company, are contemplated or threatened by the Commission; and the Company has complied to the Commission’s satisfaction with any request on the part of the Commission for additional information;
k. (xviii) the Registration Statement Preliminary Prospectus, as of each effective its date (including each deemed effective date with respect to the Agent pursuant to Rule 430B or otherwise under the Securities Act) and as of the date hereof, complied or complies, the Registration Statement, as of each effective date and as of the date hereof, complied, complies or will complycomply in all material respects, and the Prospectus as of its date and any further amendments or supplements to the Registration Statement Statement, the Preliminary Prospectus or the Prospectus at the time they were filed with the Commission, were, or willwill comply in all material respects, when they become effective or are filed with the Commission, as the case may be, comply, in all material respects with the requirements of the Securities Act, including Rule 415; the documents incorporated by reference in the Registration Statement Act and the Prospectus, when they became effective or at the time they were or hereafter are filed with the Commission, complied and will comply in all material respects with the requirements of the Exchange Act;
l. Securities Act Regulations; the Registration Statement, as of each effective date (including each deemed effective date with respect to the Agent pursuant to Rule 430B or otherwise under the Securities Act), and as of the date hereof, and at each Settlement Datedate, did not, and does not or will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; the Preliminary Prospectus, as of its date, did not contain and the Prospectus or any amendment or supplement thereto will notthereto, as of its issue datetheir respective dates, as of the applicable filing date, as of the date hereof hereof, the Closing Time and at on each Settlement DateDate of Delivery (if any), will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no warranty or representation with respect to any statement contained in or omitted from the Registration Statement Statement, the Preliminary Prospectus or the Prospectus or any amendment or supplement to any of the foregoing in reliance upon and in conformity with the information concerning the Agent Underwriters and furnished in writing by or on behalf of the Agent Underwriters through the Representative to the Company expressly for use thereintherein (that information being limited to that described in the penultimate sentence of the first paragraph of Section 9(b) hereof);
(xix) for the purposes of this Agreement, the “Applicable Time” is 6:48 p.m. (New York City time) on the date of this Agreement; the documents incorporated by reference in Disclosure Package as of the Registration Statement and the Prospectus, at the time the Registration Statement became effective or when such documents incorporated by reference were filed with the Commission, as the case may be, when read together with the other information in the Registration Statement or the Prospectus, as the case may beApplicable Time, did not and will not include an any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
m. as of the issue date or date of first use and at all subsequent times through each Settlement Date, each Issuer Free Writing Prospectus did not, and at the time of each sale of Placement Shares and at the Settlement date, each such Issuer Free Writing Prospectus will not, contain an untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
n. ; and each Issuer Free Writing Prospectus, if any, as of its issue date and at all subsequent times through Prospectus included in the completion of the public offer and sale of the Placement Shares did not, Disclosure Package does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein, and any other prospectus deemed to be a part thereof that has not been superseded or modified;
o. the Company is eligible to use Free Writing Prospectuses in connection with this offering pursuant to Rules 164 and 433 under the Securities Act; any Free Writing Prospectus that the Company is required to file pursuant to Rule 433(d) has been, or will be, filed with the Commission in accordance with the requirements of the Securities Act; and each Free Writing Prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d) or that was prepared by or on behalf of or used by the Company complies or will comply in all material respects with the requirements of the Securities Act;
p. except for any Issuer Free Writing ProspectusesStatement, the Company has not prepared, used Preliminary Prospectus or referred to, and will not, without the prior consent of the Agent, prepare, use or refer to, any Free Writing Prospectus;
q. the Prospectus and any Issuer Free Writing Prospectuses (to the extent any each such Issuer Free Writing Prospectus was required to be filed Prospectus, as supplemented by and taken together with the Commission) delivered to other information comprising the Agent for use in connection with the public offering of the Placement Shares contemplated herein have been and will be identical to the versions of such documents transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T under the Securities Act;
r. the Company filed the Registration Statement with the Commission before using any Issuer Free Writing Prospectus;
s. there are no actions, suits, proceedings, inquiries or investigations pending or, to the knowledge of the Company or the Operating Partnership, threatened against the Company or any Subsidiary or any of their respective officers and directors or to which the properties, assets or rights of any such entity are subject, at law or in equity, before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority, arbitral panel or agency which could result in a judgment, decree, award or order having a Material Adverse Effect;
t. the consolidated financial statements, including the notes thereto, included in each of the Registration Statement and the Prospectus present fairly the consolidated financial position of the Company and its subsidiaries Disclosure Package as of the dates indicated and their consolidated results Applicable Time, did not include any untrue statement of operations and changes a material fact or omit to state any material fact necessary in financial position anorder to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided,
Appears in 1 contract
Sources: Underwriting Agreement (Northstar Realty Finance Corp.)
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, represent and warrant to, and agree with to the Agent as of the date of this Agreement, as of each Representation Date (as defined below), as of the time of each sale of Placement Shares pursuant to this Agreement and as of each Settlement Date, unless such representation, warranty or agreement specifies a different date or timeUnderwriters that:
a. (a) the Company has an authorized capitalization, and will have immediately after the authorized Closing Time for the purchase and outstanding capitalization sale of the Initial Shares, an actual capitalization, as set forth in the Registration Statement and the Prospectus; the outstanding shares of capital stock or, as applicable, partnership or membership interests, of the Company have been duly and validly authorized and issued and are fully paid and non-assessable. All each subsidiary of the outstanding shares of capital stockCompany, partnership interests including the Operating Partnership and membership interests, as the case may be, of the its subsidiaries of the Company identified on Schedule 4 hereto (each, a “Subsidiary” and collectively, the “Subsidiaries”) ), have been duly authorized and validly issued and are validly issued, fully paid and, with respect to shares of capital stock, membership interests and limited partnership interests, non- assessable (except to the extent such non-assessable securities thereof assessability may be affected by Section 17-607 of the Delaware Revised Uniform Limited Partnership Act or Section 18-607 of the Delaware Limited Liability Company Act), and, except as disclosed in the Prospectus, all of the outstanding shares of capital stock, stock or partnership interest or membership interests, as the case may be, interests of the Subsidiaries are directly or indirectly owned of record and beneficially by the Company; , free and clear of any pledge, lien, encumbrance, security interest or other claim, and, except as disclosed in the Prospectus, there are no outstanding (i) securities or obligations of the Company or any of the Subsidiaries convertible into or exchangeable or redeemable for any capital stock or other equity interests of the Company or any such Subsidiary, (ii) warrants, rights or options to subscribe for or purchase from the Company or any such Subsidiary any such capital stock or other equity interests or any such convertible or exchangeable securities or obligations, or (iii) obligations of the Company or any such Subsidiary to issue any shares of capital stockstock or other equity interests, any such convertible or exchangeable or redeemable securities or obligationobligations, or any such warrants, rights or options; all issued and outstanding units of partnership interest in the Operating Partnership (“Units”) owned by the Company are owned free and clear of any perfected security interest or any other security interests, claims, liens or encumbrances;
b. (b) each of the Company and each of the Subsidiaries (all of which Subsidiaries are named in Exhibit 21.1 to the Registration Statement) has been duly incorporated, formed incorporated or organized and is validly existing as a corporation, general or limited partnership or limited liability company company, as applicable, in good standing under the laws of its respective jurisdiction of incorporation, formation incorporation or organization with full corporate or other power and authority to own its respective properties assets and to conduct its respective businesses business as described in each of the Registration Statement and the Prospectus, Prospectus and, in the case of each of the Company and the Operating Partnership, to execute and deliver this Agreement and the Formation Agreements to which it is a party and to consummate the transactions contemplated herein and to perform its obligations under the Amended and Restated Management Agreement, dated October 27, 2015, by and among the Company, the Operating Partnership and the Manager (the “Management Agreement”)therein;
c. (c) each of the Company and each of the Subsidiaries is duly qualified or licensed and is in good standing in each jurisdiction in which it conducts the nature or conduct of its businesses or in which it owns or leases real property or otherwise maintains an office business requires such qualification and in which the failure, individually or in the aggregate, to be so qualified or licensed would could reasonably be expected to have a material adverse effect on (i) the performance of this Agreement or the consummation of the transactions contemplated hereby (including, without limitation, the consummation of the Formation Transactions), (ii) the assets, business, operations, earnings, prospects, properties prospects or condition (financial or otherwise) of the Company and the Subsidiaries taken as a whole, or (any such effect iii) the assets to be acquired upon consummation of the Formation Agreements, taken as a whole, or change, where the context so requires, is hereinafter called operations or earnings thereof (a “Material Adverse Effect” or “Material Adverse Change”); except as (i) disclosed in the Prospectus, (ii) in accordance with the terms of the indebtedness proposed to be assumed by the Company in connection with its proposed acquisition of the Initial Properties or (iii) as may be required by law, no Subsidiary is prohibited or restricted, directly or indirectly, from paying dividends to the Company, or from making any other distribution with respect to such Subsidiary’s capital stock or other equity interests or from repaying to the Company or any other Subsidiary any amounts which that may from time to time become due under any loans or advances to such Subsidiary from the Company or such other Subsidiary, or from transferring any such Subsidiary’s property or assets to the Company or to any other Subsidiary; other than as disclosed in the ProspectusProspectus and other than the Subsidiaries, the Company and the Operating Partnership do does not own, directly or indirectly, any capital stock or other equity securities of any other corporation or any ownership interest in any limited liability company, partnership, joint venture or other association;
d. (d) the agreement of limited partnership of the Operating Partnership (the “Partnership Agreement”) has been duly and validly authorized, executed and delivered by or on behalf of Midlantic Office Properties, LLC, as the general partner of the Operating Partnership (the “General Partner”), and the Company as a limited partner of the Operating Partnership and constitutes a legal, valid and binding agreement of such parties thereto, enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally or by general principles of equity;
(e) upon completion of the offering of the Shares, (i) the Company will be a holder of Units representing a limited partner interest in the Operating Partnership in the amount described in the Prospectus, (ii) the General Partner will be the holder of the sole general partner interest in the Operating Partnership, free and clear of any pledge, lien, encumbrance, security interest or other claim, and (iii) the Company will own a 100% membership interest in the General Partner, free and clear of any pledge, lien, encumbrance, security interest or other claim;
(f) the Company and the Subsidiaries are are, and will be upon consummation of the Formation Transactions, in compliance in all material respects with all applicable federal, state, local or foreign laws, regulations, rules, regulationsdecrees, judgments and orders, decrees and judgments, including those relating to transactions with affiliatesaffiliates except where any failures to be in compliance could not reasonably be expected to have a Material Adverse Effect;
e. (g) the conduct of business by the Company and the Subsidiaries as presently and proposed to be conducted is not subject to continuing supervision or examination by any governmental official or body of the United States or any other jurisdiction wherein the Company or the Subsidiaries conducts or proposes to conduct such business, except (i) as described in the Prospectus or (ii) such supervision and examinations as is applicable to commercial enterprises and public companies generally.
(h) neither the Company nor any Subsidiary is in breach of or in default under (nor has any event occurred which that with notice, lapse of time, or both would constitute a breach of, or default under), (i) its respective charterorganizational documents, bylaws, agreement of limited partnership, operating agreement or other similar organizational documents (the “Organizational Documents”), (ii) in the performance or observance of any obligation, agreement, covenant or condition contained in any license, indenture, mortgage, deed of trust, loan or credit agreement or other agreement or instrument to which the Company or any Subsidiary is a party or by which any of them or their respective properties assets is bound, or (iii) any federal, state, local or foreign law, regulation or rule or any decree, judgment, permit or order (each, a “Law”) applicable to the Company or any Subsidiary, except, in the case of clauses (ii) and (iii) above, except for such breaches or defaults which would notthat, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect;
f. (i) the execution, delivery and performance of this AgreementAgreement and the Formation Agreements, and consummation of the transactions contemplated herein or therein will not (Ai) conflict with, or result in any breach of, or constitute a default under (nor constitute any event which that with notice, lapse of time, or both would constitute a breach of, or default under), (iA) any provision of the Organizational Documents organizational documents of the Company or any Subsidiary, or (iiB) any provision of any license, indenture, mortgage, deed of trust, loan or credit agreement or other agreement or instrument to which the Company or any Subsidiary is a party or by which any of them or their respective properties assets (including those to be acquired upon consummation of the Formation Transactions) may be bound or affected, or under any Law federal, state, local or foreign law, regulation or rule or any decree, judgment or order applicable to the Company or any Subsidiary, except in the case of this clause (iiB) for such conflicts, breaches or defaults which would notthat, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect; or (Bii) except as disclosed in the Prospectus, result in the creation or imposition of any material lien, charge, claim or encumbrance upon any property or asset of the Company or any SubsidiarySubsidiary or any of the assets to be acquired pursuant to the Formation Agreements;
g. (j) this Agreement and the Management Agreement have has been duly authorized, executed and delivered by the Company and the Operating Partnership and each is a legal, valid and binding agreement of the Company and the Operating Partnership enforceable in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, and by general equitable principles, and except to the extent that the indemnification and contribution provisions of Section 12 9 hereof may be limited by federal or state securities laws and public policy considerations in respect thereof;
h. (k) the execution and delivery and performance of the Formation Agreements and each of the documents, agreements and instruments executed and delivered in connection therewith, and the consummation of the transactions contemplated by the foregoing, has been duly authorized by all necessary corporate or other action by the Company and the Subsidiaries including, but not limited to, any vote of the stockholders or other holders of equity interests that may be required by applicable organizational document, state law or the requirements of the New York Stock Exchange; the Formation Agreements are in full force and effect on the date hereof and are the legal, valid and binding agreements of the parties thereto enforceable in accordance with their respective terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and by general equitable principles, and neither the Company or any of the Subsidiaries nor, to the knowledge of the Company, any of the other parties thereto is in breach or default of its obligations thereunder (nor has any event occurred that with notice, lapse of time, or both would constitute a breach of, or default thereunder, by the Company or, to the knowledge of the Company, any of the other parties thereto); the Formation Agreements and documents contemplated thereby are sufficient to effect the valid transfer to the Operating Partnership of all real property and other assets described in the Prospectus as being transferred to the Operating Partnership in connection with the Formation Transactions, upon payment of the consideration therefor;
(l) no approval, authorization, consent or order of or filing with any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency or any other third party is required in connection with the Company’s or the Operating Partnership’s execution, delivery and performance of this Agreement, their consummation of the transactions contemplated herein or the Company’s sale and delivery of the Shares or in connection with the execution, delivery and performance of this Agreement by the Company Formation Agreements or the Operating Partnership, their consummation of the transactions contemplated hereintherein by the Company or any Subsidiary party thereto, and or, to the knowledge of the Company’s sale and delivery of the Placement Shares, any other party thereto, other than (Ai) such as have been obtained, or will have been obtained at the Initial Closing Time or the relevant Settlement DateOption Closing Time, as the case may be, under the Securities Act and the Securities Exchange Act of 1934 (the “Exchange Act”), (Bii) such approvals as have been obtained in connection with the approval of the listing of the Placement Shares on the New York Stock Exchange, (C) such as have been obtained or made under the rules and regulations of the Financial Industry Regulatory Authority (“FINRA”) and (Diii) any necessary qualification under the securities or blue sky laws of the various jurisdictions in which the Placement Shares are being offered by the AgentUnderwriters, and (iv) such approvals, authorizations, consents or orders or filings, the absence of which could not reasonably be expected to have a Material Adverse Effect, individually or in the aggregate;
i. (m) each of the Company and the Subsidiaries has has, and will have upon consummation of the Formation Transactions, all necessary licenses, authorizations, consents and approvals and has made all necessary filings required under any Lawfederal, state, local or foreign law, regulation or rule, and has obtained all necessary authorizations, consents and approvals from other persons, required in order to conduct their respective businesses as described in the Registration Statement and the Prospectus, except to the extent that any failure to have any such licenses, authorizations, consents or approvals, to make any such filings or to obtain any such authorizations, consents or approvals would could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; neither the Company nor any of the Subsidiaries is required by any applicable law to obtain accreditation or certification from any governmental agency or authority in order to provide the products and services which it currently provides or which it proposes to provide as set forth in the Registration Statement and the Prospectus; neither the Company, nor any of the Subsidiaries is in violation of, in default under, or has received any notice regarding a possible violation, default or revocation of any such license, authorization, consent or approval or any federal, state, local or foreign law, regulation or rule or any decree, judgment or order or judgment applicable to the Company or any of the Subsidiaries Subsidiaries, the effect of which could reasonably be expected to result in a Material Adverse ChangeEffect; and no such license, authorization, consent or approval contains a materially burdensome restriction that is not adequately disclosed in each of the Registration Statement and the Prospectus;
j. the Company meets the requirements for use of Form S-3 under the Securities Act; (n) the Registration Statement has become effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Company, are contemplated or threatened by the Commission; and , and, to the knowledge of the Company, the Company has complied to the Commission’s satisfaction with any request on the part of the Commission for additional information;
k. (o) the Preliminary Prospectus and the Registration Statement as of each effective date (including each deemed effective date with respect to the Agent pursuant to Rule 430B or otherwise under the Securities Act) and as of the date hereof, complied or will comply, and the Prospectus and any further amendments or supplements to the Registration Statement or the Prospectus at the time they were filed with the Commission, were, or will, when they become as of their effective date or are filed with the Commissionissue date, as the case may be, comply, in all material respects with the requirements of the Securities Act, including Rule 415Act and the Securities Act Regulations; the documents incorporated by reference in the Registration Statement and the Prospectus, when they became effective or at the time they were or hereafter are filed with the Commission, complied and will comply in all material respects with the requirements of the Exchange Act;
l. the Registration Statement, as of each effective date (including each deemed effective date with respect to the Agent pursuant to Rule 430B or otherwise under the Securities Act), and as of the date hereof, and at each Settlement Date, did not, and does not or any amendment thereto will not not, in each case as of the applicable effective date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and the Preliminary Prospectus or does not, and the Prospectus and any amendment or supplement thereto will not, as of its issue date, as of the applicable filing date, as of issue date and at the date hereof Initial Closing Time and at each Settlement DateOption Closing Time (if any), contain include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no warranty or representation with respect to any statement contained in or omitted from the Registration Statement Statement, the Preliminary Prospectus or the Prospectus in reliance upon and in conformity with the information concerning the Agent Underwriters and furnished in writing by or on behalf of the Agent Underwriters through the Representative to the Company expressly for use therein; the documents incorporated by reference in the Registration Statement Statement, the Preliminary Prospectus or the Prospectus (that information being limited to that described in the penultimate sentence of the first paragraph of Section 9(b) hereof);
(p) the Preliminary Prospectus was and the Prospectus, at the time the Registration Statement became effective or when such documents incorporated by reference were filed with the Commission, as the case may be, when read together with the other information in the Registration Statement or the Prospectus, as the case may be, did not and will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
m. as of the issue date or date of first use and at all subsequent times through each Settlement Date, each Issuer Free Writing Prospectus did not, and at the time of each sale of Placement Shares and at the Settlement date, each such Issuer Free Writing Prospectus will not, contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
n. each Issuer Free Writing Prospectus, if any, as of its issue date and at all subsequent times through the completion of the public offer and sale of the Placement Shares did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein, and any other prospectus deemed further amendments or supplements thereto delivered to be a part thereof that has not been superseded or modified;
o. the Company is eligible to Underwriters for use Free Writing Prospectuses in connection with this offering pursuant to Rules 164 and 433 under the Securities Act; any Free Writing Prospectus that the Company is required to file pursuant to Rule 433(d) has been, or will be, filed with the Commission in accordance with the requirements of the Securities Act; and each Free Writing Prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d) or that was prepared by or on behalf of or used by the Company complies or will comply in all material respects with the requirements of the Securities Act;
p. except for any Issuer Free Writing Prospectuses, the Company has not prepared, used or referred to, and will not, without the prior consent of the Agent, prepare, use or refer to, any Free Writing Prospectus;
q. the Prospectus and any Issuer Free Writing Prospectuses (to the extent any such Issuer Free Writing Prospectus was required to be filed with the Commission) delivered to the Agent for use in connection with the public offering of the Placement Shares contemplated herein have been and will be identical to the versions of such documents transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T under the Securities Act;
r. the Company filed the Registration Statement with the Commission before using any Issuer Free Writing Prospectus;
s. there are no actions, suits, proceedings, inquiries or investigations pending or, to the knowledge respective version of the Company or the Operating PartnershipPreliminary Prospectus, threatened against the Company or any Subsidiary or any of their respective officers and directors or to which the properties, assets or rights of any such entity are subject, at law or in equity, before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority, arbitral panel or agency which could result in a judgment, decree, award or order having a Material Adverse Effect;
t. the consolidated financial statements, including the notes thereto, included in each of the Registration Statement and the Prospectus present fairly the consolidated financial position of the Company and its subsidiaries as of the dates indicated and their consolidated results of operations and changes in financial position anProspect
Appears in 1 contract
Sources: Underwriting Agreement (Midlantic Office Trust, Inc.)
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, represent and warrant to, and agree with to the Agent as of the date of this Agreement, as of each Representation Date (as defined below), as of the time of each sale of Placement Shares pursuant to this Agreement and as of each Settlement Date, unless such representation, warranty or agreement specifies a different date or timeUnderwriters that:
a. (a) the Company has the an authorized capitalization of 200 million shares of common stock, par value $.01 per share (“Common Stock”), and outstanding capitalization as set forth in the Registration Statement and the Prospectus50 million shares of preferred stock, par value $.01 per share; the outstanding shares of capital stock or, as applicable partnership or membership interests, of the Company and each subsidiary of the Company, including the Operating Partnership and its subsidiaries (each, a “Subsidiary” and collectively, the “Subsidiaries”), have been duly and validly authorized and issued and are fully paid and non-assessable. All of the outstanding and, with respect to shares of capital stock, partnership membership interests and membership limited partnership interests, as the case may be, of the subsidiaries of the Company identified on Schedule 4 hereto (each, a “Subsidiary”) have been duly authorized and are validly issued, fully paid and non-assessable securities thereof (except to the to the extent such non-assessability may be affected by Section 17-607 of the Delaware Revised Uniform Limited Partnership Act or Section 18-607 of the Delaware Limited Liability Company Act), and, except as disclosed in the Prospectus, all of the outstanding shares of capital stock, stock or partnership interest or membership interests, as the case may be, interests of the Subsidiaries are directly or indirectly owned of record and beneficially by the Company; , free and clear of any pledge, lien, encumbrance, security interest or other claim, and, except as disclosed in the Prospectus, there are no outstanding (i) securities or obligations of the Company or any of the Subsidiaries convertible into or exchangeable or redeemable for any capital stock or other equity interests of the Company or any such Subsidiary, (ii) warrants, rights or options to subscribe for or purchase from the Company or any such Subsidiary any such capital stock or other equity interests or any such convertible or exchangeable securities or obligations, or (iii) obligations of the Company or any such Subsidiary to issue any shares of capital stockstock or other equity interests, any such convertible or exchangeable or redeemable securities or obligation, or any such warrants, rights or options; all issued and outstanding units of partnership interest in the Operating Partnership (“Units”) owned by the Company are owned free and clear of any perfected security interest or any other security interests, claims, liens or encumbrances;
b. (b) each of the Company and each of the Subsidiaries (all of which Subsidiaries are named in Exhibit 21.1 to the Registration Statement) has been duly incorporated, formed incorporated or organized and is validly existing as a corporation, general or limited partnership or limited liability company company, as applicable, in good standing under the laws of its respective jurisdiction of incorporation, formation incorporation or organization with full corporate or other power and authority to own its respective properties and to conduct its respective businesses as described in each of the Registration Statement and the Prospectus, Prospectus and, in the case of each of the Company and the Operating Partnership, to execute and deliver this Agreement and to consummate the transactions contemplated herein and to perform its obligations under the Amended and Restated Management Agreement, dated October 27, 2015, by and among the Company, the Operating Partnership and the Manager (the “Management Agreement”)herein;
c. (c) each of the Company and each of the Subsidiaries is duly qualified or licensed and is in good standing in each jurisdiction in which it conducts the nature or conduct of its businesses business requires such qualification or in which it owns or leases real property or otherwise maintains an office license and in which the failure, individually or in the aggregate, to be so qualified or licensed would could reasonably be expected to have a material adverse effect on the assets, business, operations, earnings, prospects, properties or condition (financial or otherwise) of the Company and the Subsidiaries taken as a whole, whole (any such effect or change, where the context so requires, is hereinafter called a “Material Adverse Effect” or “Material Adverse Change”); except as disclosed in the Prospectus, no Subsidiary is prohibited or restricted, directly or indirectly, from paying dividends to the Company, or from making any other distribution with respect to such Subsidiary’s capital stock or other equity interests or from repaying to the Company or any other Subsidiary any amounts which that may from time to time become due under any loans or advances to such Subsidiary from the Company or such other Subsidiary, or from transferring any such Subsidiary’s property or assets to the Company or to any other Subsidiary; other than as disclosed in the Prospectus, the Company and the Operating Partnership do does not own, directly or indirectly, any capital stock or other equity securities of any other corporation or any ownership interest in any partnership, joint venture or other association;
d. (d) the Agreement of Limited Partnership of the Operating Partnership (the “Partnership Agreement”) has been duly and validly authorized, executed and delivered by or on behalf of the partners of the Operating Partnership and constitutes a valid and binding agreement of the parties thereto, enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally or by general principles of equity;
(i) Ashford OP Limited Partner, LLC (the “Limited Partner”) is a holder of units of limited partnership interest in the Operating Partnership (“Units”) representing an ownership interest in the Operating Partnership in the amount described in the Prospectus, (ii) Ashford OP General Partner, LLC (the “General Partner”) is the holder of the sole general partner interest in the Operating Partnership, and (iii) the Company owns a 100% membership interest in the General Partner and in the Limited Partner, in each case free and clear of any pledge, lien, encumbrance, security interest or other claim;
(f) the Company and the Subsidiaries are in compliance in all material respects with all applicable federal, state, local or foreign laws, regulations, rules, regulationsdecrees, judgments and orders, decrees and judgments, including those relating to transactions with affiliates, except where any failures to be in compliance could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
e. (g) neither the Company nor any Subsidiary is in breach of or in default under (nor has any event occurred which with notice, lapse of time, or both would constitute a breach of, or default under), (i) its respective charterorganizational documents, bylaws, agreement of limited partnership, operating agreement or other similar organizational documents (the “Organizational Documents”), (ii) in the performance or observance of any obligation, agreement, covenant or condition contained in any license, indenture, mortgage, deed of trust, loan or credit agreement or other agreement or instrument to which the Company or any Subsidiary is a party or by which any of them or their respective properties is bound, or (iii) any federal, state, local or foreign law, regulation or rule or any decree, judgment, permit or order (each, a “Law”) applicable to the Company or any Subsidiary, except, in the case of clauses (ii) and (iii) above, except for such breaches or defaults which would notthat, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect;
f. (h) the execution, delivery and performance of this Agreement, Agreement and consummation of the transactions contemplated herein will not (A) conflict with, or result in any breach of, or constitute a default under (nor constitute any event which with notice, lapse of time, or both would constitute a breach of, or default under), (i) any provision of the Organizational Documents organizational documents of the Company or any Subsidiary, or (ii) any provision of any license, indenture, mortgage, deed of trust, loan or credit agreement or other agreement or instrument to which the Company or any Subsidiary is a party or by which any of them or their respective assets or properties may be bound or affected, or under any Law federal, state, local or foreign law, regulation or rule or any decree, judgment or order applicable to the Company or any Subsidiary, except in the case of this clause (ii) for such breaches or defaults which would notthat, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect; or (B) result in the creation or imposition of any lien, charge, claim or encumbrance upon any property or asset of the Company or any Subsidiary;
g. (i) this Agreement and the Management Agreement have has been duly authorized, executed and delivered by the Company and the Operating Partnership and each is a legal, valid and binding agreement of the Company and the Operating Partnership enforceable in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, and by general equitable principles, and except to the extent that the indemnification and contribution provisions of Section 12 9 hereof may be limited by federal or state securities laws and public policy considerations in respect thereof;
h. (j) no approval, authorization, consent or order of or filing with any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency or any other third party is required in connection with the Company’s or the Operating Partnership’s execution, delivery and performance of this Agreement by the Company or the Operating PartnershipAgreement, their consummation of the transactions contemplated herein, and herein or the Company’s sale and delivery of the Placement Shares, other than (Ai) such as have been obtained, or will have been obtained at the Closing Time or the relevant Settlement DateDate of Delivery, as the case may be, under the Securities Act and the Securities Exchange Act of 1934 (the “Exchange Act”), (Bii) such approvals as have been obtained in connection with the approval of the listing of the Placement Shares on the New York Stock Exchange, (C) such as have been obtained or made under the rules and regulations of the Financial Industry Regulatory Authority (“FINRA”) and (Diii) any necessary qualification under the securities or blue sky laws of the various jurisdictions in which the Placement Shares are being offered by the AgentUnderwriters, and (iv) such approvals, authorizations, consents or orders or filings, the absence of which could not reasonably be expected to have a Material Adverse Effect, individually or in the aggregate;
i. (k) each of the Company and the Subsidiaries has all necessary licenses, authorizations, consents and approvals and has made all necessary filings required under any Lawfederal, state, local or foreign law, regulation or rule, and has obtained all necessary authorizations, consents and approvals from other persons, required in order to conduct their respective businesses as described in the Registration Statement and the Prospectus, except to the extent that any failure to have any such licenses, authorizations, consents or approvals, to make any such filings or to obtain any such authorizations, consents or approvals would could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; neither the Company nor any of the Subsidiaries is required by any applicable law to obtain accreditation or certification from any governmental agency or authority in order to provide the products and services which it currently provides or which it proposes to provide as set forth in the Registration Statement and the Prospectus; neither the Company, nor any of the Subsidiaries is in violation of, in default under, or has received any notice regarding a possible violation, default or revocation of any such license, authorization, consent or approval or any federal, state, local or foreign law, regulation or rule or any decree, judgment or order or judgment applicable to the Company or any of the Subsidiaries Subsidiaries, the effect of which could reasonably be expected to result in a Material Adverse ChangeEffect; and no such license, authorization, consent or approval contains a materially burdensome restriction that is not adequately disclosed in each of the Registration Statement and the Prospectus; neither the Company nor any of the Subsidiaries is required by any applicable law to obtain accreditation or certification from any governmental agency or authority in order to provide the products and services that it currently provides or that it proposes to provide as set forth in the Prospectus except to the extent that any failure to have such accreditation or certification could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
j. (l) the Company meets and the transactions contemplated by this Agreement meet the requirements for the use of Form S-3 under the Securities Act; each of the Registration Statement and any Rule 462(b) Registration Statement has become effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement or any Rule 462(b) Registration Statement has been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Company, are contemplated or threatened by the Commission; and , and, to the knowledge of the Company, the Company has complied to the Commission’s satisfaction with any request on the part of the Commission for additional information;
k. (m) the Preliminary Prospectus and the Registration Statement as of each effective date (including each deemed effective date with respect to the Agent pursuant to Rule 430B or otherwise under the Securities Act) and as of the date hereof, complied or will comply, and the Prospectus and any further amendments or supplements to the Registration Statement or the Prospectus at the time they were filed with the Commission, were, or thereto will, when they have become effective or are filed with the Commission, as the case may be, comply, in all material respects with the requirements of the Securities Act, including Rule 415Act and the Securities Act Regulations; the documents incorporated by reference in the Registration Statement and the Prospectus, when they became effective or at the time they were or hereafter are filed with the Commission, complied and will comply in all material respects with the requirements of the Exchange Act;
l. the Registration Statement, as of each effective date (including each deemed effective date with respect to the Agent pursuant to Rule 430B or otherwise under the Securities Act), and as of the date hereof, and at each Settlement Date, did not, and does not or any amendment thereto will not not, in each case as of the applicable effective date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading; and each Preliminary Prospectus does not, and the Prospectus or any amendment or supplement thereto will not, as of its issue date, as of the applicable filing date, as of the date hereof and at the Closing Time and on each Settlement DateDate of Delivery (if any), contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no warranty or representation with respect to any statement contained in or omitted from the Registration Statement Statement, the Preliminary Prospectus or the Prospectus Prospectus, in reliance upon and in conformity with the information concerning the Agent Underwriters and furnished in writing by or on behalf of the Agent Underwriters through the Representatives to the Company expressly for use therein; in the documents Registration Statement, the Preliminary Prospectus or the Prospectus (that information being limited to that described in the penultimate sentence of the first paragraph of Section 9(b) hereof);
(n) each document incorporated by reference in the Prospectus or the Registration Statement (the “Incorporated Documents”), when it became effective or was filed with the Commission, as the case may be, conformed in all material respects to the requirements of the Securities Act or the Exchange Act, as applicable, and the Securities Act Regulations and the Exchange Act Regulations, and none of such documents contained or will contain an untrue statement of a material fact or omitted or will omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and, when read together with the other information in the Prospectus, at the time the Registration Statement became effective and at the Closing Date, each such incorporated document did not or when such documents incorporated by reference were filed with the Commissionwill not, as the case may be, when read together with the other information in the Registration Statement or the Prospectus, as the case may be, did not and will not include contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
m. as of (o) the issue date or date of first Preliminary Prospectus was and the Prospectus delivered to the Underwriters for use and at all subsequent times through each Settlement Date, each Issuer Free Writing Prospectus did not, and at the time of each sale of Placement Shares and at the Settlement date, each such Issuer Free Writing Prospectus will not, contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
n. each Issuer Free Writing Prospectus, if any, as of its issue date and at all subsequent times through the completion of the public offer and sale of the Placement Shares did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein, and any other prospectus deemed to be a part thereof that has not been superseded or modified;
o. the Company is eligible to use Free Writing Prospectuses in connection with this offering pursuant to Rules 164 and 433 under the Securities Act; any Free Writing Prospectus that the Company is required to file pursuant to Rule 433(d) has been, or will be, filed with the Commission in accordance with the requirements of the Securities Act; and each Free Writing Prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d) or that was prepared by or on behalf of or used by the Company complies or will comply in all material respects with the requirements of the Securities Act;
p. except for any Issuer Free Writing Prospectuses, the Company has not prepared, used or referred to, and will not, without the prior consent of the Agent, prepare, use or refer to, any Free Writing Prospectus;
q. the Prospectus and any Issuer Free Writing Prospectuses (to the extent any such Issuer Free Writing Prospectus was required to be filed with the Commission) delivered to the Agent for use in connection with the public offering of the Placement Shares contemplated herein have been and will be identical to the versions respective version of such documents the Preliminary Prospectus or Prospectus created to be transmitted to the Commission under the Securities Act for filing via the Electronic Data Gathering Analysis and Retrieval System (“E▇▇▇▇▇”), except to the extent permitted by Regulation S-T under the Securities ActT;
r. the Company filed the Registration Statement with the Commission before using any Issuer Free Writing Prospectus;
s. (p) there are no actions, suits, proceedings, inquiries or investigations pending or, to the knowledge of the Company or the Operating PartnershipCompany, threatened against the Company or any Subsidiary or any of their respective officers and directors or to which the properties, assets or rights of any such entity are subject, at law or in equity, before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority, arbitral panel or agency which agency, where in any such case (A) there is a reasonable possibility that such action, suit or proceeding will be determined adversely to the Company or such Subsidiary and (B) if so determined adversely, could reasonably be expected to result in a judgment, decree, award or order having a Material Adverse Effect;
t. (q) the consolidated financial statements, including the related supporting schedules and notes thereto, included (or incorporated by reference into) in each of the Registration Statement and the Prospectus present fairly the consolidated financial position of the Company and its subsidiaries entities to which such financial statements relate (the “Covered Entities”) as of the dates indicated and their the consolidated results of operations and changes in financial position anand cash flows of the Covered Entities for the periods specified; such financial statements have been prepared in conformity with generally accepted accounting principles as applied in the United States and on a consistent basi
Appears in 1 contract
Sources: Underwriting Agreement (Ashford Hospitality Trust Inc)
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, represent and warrant toto the Underwriters, and agree with the Agent as of the date of this Agreement, as of each Representation Date (as defined below)hereof, as of the time of each sale of Placement Shares pursuant to this Agreement Closing Time and as of each Settlement Dateany Date of Delivery, unless such representation, warranty or agreement specifies a different date or timethat:
a. (i) the Company has the an authorized and outstanding capitalization as set forth in both the Registration Statement Prospectus and the ProspectusDisclosure Package; the outstanding shares of capital stock of the Company and NRFC Sub-REIT Corp., a Maryland corporation and a subsidiary of the Operating Partnership (the “Private REIT”), have been duly and validly authorized and issued and are fully paid and non-assessable. All nonassessable;
(ii) the outstanding partnership interests of the outstanding shares of capital stock, partnership interests and membership interests, as the case may be, of the subsidiaries of the Company identified on Schedule 4 hereto (each, a “Subsidiary”) Operating Partnership have been duly and validly authorized and are validly issued, fully paid and non-assessable securities thereof and, except as disclosed in the Prospectus, ; all of the outstanding shares of capital stock, partnership interest or membership interests, as the case may be, stock of the Subsidiaries Private REIT are directly or and indirectly owned of record and beneficially by the Operating Partnership and the Company; , respectively;
(iii) except as disclosed in both the ProspectusProspectus and the Disclosure Package, there are no outstanding (iA) securities or obligations of the Company or any the subsidiaries of the Subsidiaries Company required to be set forth in Exhibit 21.1 to the Company’s Form 10-K for the fiscal year ended December 31, 2011 (the “Subsidiaries”), convertible into or exchangeable for any capital stock of or partnership interests, membership interests or other equity interests, as the case may be, in the Company or any such Subsidiary, (iiB) warrants, rights or options to subscribe for or purchase from the Company or any such Subsidiary any such capital stock or any such convertible or exchangeable securities or obligations, or (iiiC) obligations of the Company or any such Subsidiary to issue any shares of capital stocksecurities or obligations, any such convertible or exchangeable securities or obligationobligations, or any such warrants, rights or options; all issued options the existence of which, in each case of (A), (B) and outstanding units of partnership interest (C), is required to be disclosed in the Operating Partnership (“Units”) owned by Prospectus and the Company Disclosure Package and are owned free and clear of any perfected security interest or any other security interests, claims, liens or encumbrancesnot so disclosed;
b. (iv) each of the Company and each of the Subsidiaries has been duly incorporated, formed incorporated or organized and is validly existing as a corporation, general or limited partnership or limited liability company company, as the case may be, except to the extent, in the case of the Subsidiaries, that the failure to be so organized would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect and is in good standing under the laws of its respective jurisdiction of incorporation, formation incorporation or organization with full power except to the extent that the failure to be so qualified or in good standing would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
(v) each of the Company and the Subsidiaries has the corporate, partnership or limited liability company power, as the case may be, and authority to own its their respective properties and to conduct its their respective businesses businesses, each as described in each of the Registration Statement Statement, the Prospectus and the ProspectusDisclosure Package except to the extent that the failure to have such power or authority would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, and, in the case of the Company and the Operating Partnership, to execute and deliver this Agreement and to consummate the transactions contemplated herein and to perform its obligations under the Amended and Restated Management described in this Agreement, dated October 27, 2015, by and among the Company, the Operating Partnership and the Manager (the “Management Agreement”);
c. (vi) the Company and each of the Subsidiaries is are duly qualified or licensed and in good standing in each jurisdiction in which it conducts its businesses where such qualification or in which it owns or leases real property or otherwise maintains an office and in which license is required except where the failure, individually or in the aggregate, to be so qualified or licensed would not reasonably be expected to have a material adverse effect on the assets, business, operations, earnings, prospects, properties or condition (financial or otherwise) of the Company and the Subsidiaries taken as a whole, (any such effect or change, where the context so requires, is hereinafter called a “Material Adverse Effect” or “Material Adverse Change”); ;
(vii) except as disclosed in both the ProspectusProspectus and the Disclosure Package, no Subsidiary the Operating Partnership is neither contractually prohibited or nor contractually restricted, directly or indirectly, from paying dividends to the Company, or from making any other distribution with respect to such Subsidiarythe Operating Partnership’s partnership interests or from repaying to the Company or another subsidiary of the Company any amounts which may from time to time become due under any loans or advances to the Operating Partnership from the Company or another subsidiary of the Company, or from transferring the Operating Partnership’s property or assets to the Company or another subsidiary of the Company;
(viii) except as disclosed in both the Prospectus and the Disclosure Package, the Private REIT is neither contractually prohibited nor contractually restricted, directly or indirectly, from paying dividends to the Operating Partnership, or from making any other distribution with respect to the Private REIT’s shares of capital stock or from repaying to the Company, the Operating Partnership or another subsidiary of the Company any amounts which may from time to time become due under any loans or advances to the Private REIT from the Company, the Operating Partnership or another subsidiary of the Company, or from transferring the Private REIT’s property or assets to the Company, the Operating Partnership or another subsidiary of the Company;
(ix) except as disclosed in both the Prospectus and the Disclosure Package, no Subsidiary (other than the Operating Partnership and the Private REIT, which are covered above) is contractually prohibited or restricted, directly or indirectly, from paying dividends to the Operating Partnership or the Private REIT, to the extent such Subsidiary is a direct subsidiary of the Operating Partnership or the Private REIT, or from making any other distribution with respect to the outstanding membership interests of such Subsidiary or from repaying to the Company, the Operating Partnership or another subsidiary of the Company any amounts which may from time to time become due under any loans or advances to such Subsidiary from the Company Company, the Operating Partnership or such other Subsidiaryanother subsidiary of the Company, or from transferring any such Subsidiary’s property or assets to the Company, the Operating Partnership or another subsidiary of the Company except for any such prohibitions and restrictions that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect or to the extent that any other Subsidiary; other than such restriction would currently materially limit the Company’s ability to pay dividends or that would be reasonably likely to materially limit the future payment of dividends on Preferred Stock;
(x) the Agreement of Limited Partnership of the Operating Partnership, dated as of October 19, 2004, as amended (the “Partnership Agreement”), has been duly and validly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally or by general principles of equity, and except to the extent that the indemnification and contribution provisions thereof may be limited by federal or state securities laws and public policy considerations in respect thereof;
(xi) the Company is the sole general partner of the Operating Partnership and owns units of partnership interest in the Operating Partnership (“OP Units”) representing an ownership interest in the Operating Partnership in the percentage set forth in both the Prospectus and the Disclosure Package, and, except as disclosed in the Prospectus, the Company Prospectus and the Operating Partnership do not ownDisclosure Package, directly or indirectlysuch ownership interest is free and clear of any pledge, any capital stock lien, encumbrance, security interest or other equity securities of claim except for any other corporation or any ownership pledge, lien, encumbrance, security interest in any partnership, joint venture or other associationclaim that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
d. the Company and the Subsidiaries are in compliance in all material respects with all applicable laws, rules, regulations, orders, decrees and judgments, including those relating to transactions with affiliates;
e. (xii) neither the Company nor any Subsidiary is in breach of or in default under (nor has any event occurred which with notice, lapse of time, or both would constitute a breach of, or default under), (i) its respective charterorganizational documents, bylaws, agreement of limited partnership, operating agreement or other similar organizational documents (the “Organizational Documents”), (ii) in the performance or observance of any obligation, agreement, covenant or condition contained in any license, indenture, mortgage, deed of trust, loan or credit agreement or other agreement or instrument to which the Company or any Subsidiary is a party or by which any of them or their respective properties or assets is bound, or (iii) any federal, state, local or foreign law, regulation or rule or any decree, judgment, permit or order (each, a “Law”) applicable to the Company or any Subsidiary, except, in the case of clauses (ii) and (iii) above, except for such breaches or defaults which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
f. (xiii) the execution, delivery and performance of this Agreement, Agreement and consummation of the transactions contemplated herein will not (A) conflict with, or result in any breach of, or constitute a default under (nor constitute any event which with notice, lapse of time, or both would constitute a breach of, or default under), ): (i1) any provision of the Organizational Documents organizational documents of the Company or any Subsidiary, or (ii2) any provision of any license, indenture, mortgage, deed of trust, loan or credit agreement or other agreement or instrument to which the Company or any Subsidiary is a party or by which any of them or their respective assets or properties may be bound or affected, or under any Law federal, state, local or foreign law, regulation or rule or any decree, judgment or order applicable to the Company or any Subsidiary, except in the case of this clause (ii2) for such breaches or defaults which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse EffectEffect and which would not reasonably be expected to have a material adverse effect on the Company and the Operating Partnership’s ability to perform their agreed upon obligations under the Agreement; or (B) result in the creation or imposition of any lien, charge, claim or encumbrance upon any property or asset of the Company or any Subsidiary, except for such liens, charges, claims or encumbrances which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
g. (xiv) this Agreement and the Management Agreement have has been duly authorized, executed and delivered by each of the Company and the Operating Partnership and each is a legal, valid and binding agreement of each of the Company and the Operating Partnership enforceable against the Company and the Operating Partnership in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, and by general equitable principles, and except to the extent that the indemnification and contribution provisions of Section 12 9 hereof may be limited by federal or state securities laws and public policy considerations in respect thereof;
h. (xv) no approval, authorization, consent or order of or filing with any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency is required in connection with the Company’s or the Operating Partnership’s execution, delivery and performance of this Agreement Agreement, the consummation of the transactions contemplated herein by the Company or the Operating Partnership, their consummation of the transactions contemplated herein, and including the Company’s issuance, sale and delivery of the Placement Shares, other than (A) such as have been obtained, or will have been obtained at the Closing Time or the relevant Settlement DateDate of Delivery, as the case may be, under the Securities Act and the Exchange Act, or (B) such approvals as have been obtained in connection with the approval of the listing of the Placement Shares on the Exchange, (C) such as have been obtained or made under the rules and regulations of the Financial Industry Regulatory Authority (“FINRA”) and (D) any necessary qualification under the securities or “blue sky sky” laws of the various jurisdictions in which the Placement Shares are being offered by the AgentUnderwriters, or (C), any such approvals, authorizations, consents, orders, or filings that if not obtained or made, would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect and which would not reasonably be expected to have a material adverse effect on the Company and the Operating Partnership’s ability to perform their agreed upon obligations under this Agreement;
i. (xvi) each of the Company and the Subsidiaries has all necessary licenses, authorizations, consents and approvals and has made all necessary filings required under any Lawfederal, state, local or foreign law, regulation or rule, and has obtained all necessary authorizations, consents and approvals from other persons, required in order to conduct their respective businesses as described in both the Registration Statement Prospectus and the ProspectusDisclosure Package, except to the extent that any failure to have any such licenses, authorizations, consents or approvals, to make any such filings or to obtain any such authorizations, consents or approvals would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; neither the Company nor any of the Subsidiaries is required by any applicable law to obtain accreditation or certification from any governmental agency or authority in order to provide the products and services which it currently provides or which it proposes to provide as set forth in the Registration Statement and the Prospectus; neither the Company, nor any of the Subsidiaries is in violation of, in default under, or has received any notice regarding a possible violation, default or revocation of any such license, authorization, consent or approval or any federal, state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Company or any of the Subsidiaries the effect of which could would reasonably be expected to result in a Material Adverse Change; and no such license, authorization, consent or approval contains a materially burdensome restriction that is not adequately disclosed in each of the Registration Statement and the Prospectus;
j. the Company meets the requirements for use of Form S-3 under the Securities Act; (xvii) the Registration Statement has become been declared effective under the Securities Act and by the Commission; the Rule 462(b) Registration Statement, if any, is effective; no stop order suspending the effectiveness or the use of the Registration Statement Statement, including any Rule 462(b) Registration Statement, has been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Company, are contemplated or threatened by the Commission; and the Company has complied to the Commission’s satisfaction with any request on the part of the Commission for additional information;
k. (xviii) the Registration Statement Preliminary Prospectus, as of each effective its date (including each deemed effective date with respect to the Agent pursuant to Rule 430B or otherwise under the Securities Act) and as of the date hereof, complied or complies, the Registration Statement, as of each effective date and as of the date hereof, complied, complies or will complycomply in all material respects, and the Prospectus as of its date and any further amendments or supplements to the Registration Statement Statement, the Preliminary Prospectus or the Prospectus at the time they were filed with the Commission, were, or willwill comply in all material respects, when they become effective or are filed with the Commission, as the case may be, comply, in all material respects with the requirements of the Securities Act, including Rule 415; the documents incorporated by reference in the Registration Statement Act and the Prospectus, when they became effective or at the time they were or hereafter are filed with the Commission, complied and will comply in all material respects with the requirements of the Exchange Act;
l. Securities Act Regulations; the Registration Statement, as of each effective date (including each deemed effective date with respect to the Agent pursuant to Rule 430B or otherwise under the Securities Act), and as of the date hereof, and at each Settlement Datedate, did not, and does not or will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; the Preliminary Prospectus, as of its date, did not contain and the Prospectus or any amendment or supplement thereto will notthereto, as of its issue datetheir respective dates, as of the applicable filing date, as of the date hereof hereof, the Closing Time and at on each Settlement DateDate of Delivery (if any), will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no warranty or representation with respect to any statement contained in or omitted from the Registration Statement Statement, the Preliminary Prospectus or the Prospectus or any amendment or supplement to any of the foregoing in reliance upon and in conformity with the information concerning the Agent Underwriters and furnished in writing by or on behalf of the Agent Underwriters through the Representatives to the Company expressly for use thereintherein (that information being limited to that described in the penultimate sentence of the first paragraph of Section 9(b) hereof);
(xix) for the purposes of this Agreement, the “Applicable Time” is 5:30 p.m. (New York City time) on the date of this Agreement; the documents incorporated by reference in Disclosure Package as of the Registration Statement and the Prospectus, at the time the Registration Statement became effective or when such documents incorporated by reference were filed with the Commission, as the case may be, when read together with the other information in the Registration Statement or the Prospectus, as the case may beApplicable Time, did not and will not include an any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
m. as of the issue date or date of first use and at all subsequent times through each Settlement Date, each Issuer Free Writing Prospectus did not, and at the time of each sale of Placement Shares and at the Settlement date, each such Issuer Free Writing Prospectus will not, contain an untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
n. ; and each Issuer Free Writing Prospectus, if any, as of its issue date and at all subsequent times through Prospectus included in the completion of the public offer and sale of the Placement Shares did not, Disclosure Package does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein, and any other prospectus deemed to be a part thereof that has not been superseded or modified;
o. the Company is eligible to use Free Writing Prospectuses in connection with this offering pursuant to Rules 164 and 433 under the Securities Act; any Free Writing Prospectus that the Company is required to file pursuant to Rule 433(d) has been, or will be, filed with the Commission in accordance with the requirements of the Securities Act; and each Free Writing Prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d) or that was prepared by or on behalf of or used by the Company complies or will comply in all material respects with the requirements of the Securities Act;
p. except for any Issuer Free Writing ProspectusesStatement, the Company has not prepared, used Preliminary Prospectus or referred to, and will not, without the prior consent of the Agent, prepare, use or refer to, any Free Writing Prospectus;
q. the Prospectus and any Issuer Free Writing Prospectuses (to the extent any each such Issuer Free Writing Prospectus was required to be filed Prospectus, as supplemented by and taken together with the Commission) delivered to other information comprising the Agent for use in connection with the public offering of the Placement Shares contemplated herein have been and will be identical to the versions of such documents transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T under the Securities Act;
r. the Company filed the Registration Statement with the Commission before using any Issuer Free Writing Prospectus;
s. there are no actions, suits, proceedings, inquiries or investigations pending or, to the knowledge of the Company or the Operating Partnership, threatened against the Company or any Subsidiary or any of their respective officers and directors or to which the properties, assets or rights of any such entity are subject, at law or in equity, before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority, arbitral panel or agency which could result in a judgment, decree, award or order having a Material Adverse Effect;
t. the consolidated financial statements, including the notes thereto, included in each of the Registration Statement and the Prospectus present fairly the consolidated financial position of the Company and its subsidiaries Disclosure Package as of the dates indicated and their consolidated results Applicable Time, did not include any untrue statement of operations and changes a material fact or omit to state any material fact necessary in financial position anorder to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided,
Appears in 1 contract
Sources: Underwriting Agreement (Northstar Realty Finance Corp.)
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, represent and warrant to, and agree with to the Agent Underwriters as of the date of this Agreementhereof, as of each Representation Date the Initial Sale Time (as defined below), as of the time of Closing Time, and agrees with each sale of Placement Shares pursuant to this Agreement and as of each Settlement DateUnderwriter, unless such representation, warranty or agreement specifies a different date or timethat:
a. (a) the Company has the authorized and outstanding capitalization as set forth in the Registration Statement Statement, the Prospectus and the ProspectusDisclosure Package under the section captioned “Capitalization”; the outstanding shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessablenonassessable. All of the outstanding shares of capital stock, partnership interests and membership interests, as the case may be, of the subsidiaries of the Company identified on Schedule 4 IV hereto (each, a “Subsidiary”) have been duly authorized and are validly issued, fully paid and non-assessable nonassessable securities thereof and, except as disclosed in the ProspectusRegistration Statement, the Prospectus and the Disclosure Package, all of the outstanding shares of capital stock, partnership interest or membership interests, as the case may be, of the Subsidiaries are directly or indirectly owned of record and beneficially by the Company; except as disclosed in the ProspectusRegistration Statement, the Prospectus and the Disclosure Package, there are no outstanding (i) securities or obligations of the Company or any of the Subsidiaries convertible into or exchangeable for any capital stock of the Company or any such Subsidiary, (ii) warrants, rights or options to subscribe for or purchase from the Company or any such Subsidiary any such capital stock or any such convertible or exchangeable securities or obligations, or (iii) obligations of the Company or any such Subsidiary to issue any shares of capital stock, any such convertible or exchangeable securities or obligation, or any such warrants, rights or options; all issued and outstanding units of partnership interest in the Operating Partnership (“Units”) owned by the Company are owned free and clear of any perfected security interest or any other security interests, claims, liens or encumbrances;
b. (b) each of the Company and each of the Subsidiaries has been duly incorporated, formed or organized and is validly existing as a corporation, general or limited partnership or limited liability company in good standing under the laws of its respective jurisdiction of incorporation, formation or organization with full power and authority to own its respective properties and to conduct its respective businesses as described in each of the Registration Statement Statement, the Prospectus and the ProspectusDisclosure Package, and, in the case of the Company and the Operating Partnership, to execute and deliver this Agreement the Transaction Documents (as defined below), as applicable, and to consummate the transactions contemplated herein therein and to perform its the obligations of the Company and the Operating Partnership, as applicable, under the Amended and Restated Management Agreement, dated October 27, 2015, by and among the Company, the Operating Partnership and the Manager (the “Management Agreement”);
c. (c) the Company and each of the Subsidiaries is duly qualified or licensed and in good standing in each jurisdiction in which it conducts its businesses or in which it owns or leases real property or otherwise maintains an office and in which the failure, individually or in the aggregate, to be so qualified or licensed would have a material adverse effect on the assets, business, operations, earnings, prospects, properties or condition (financial or otherwise) of the Company and the Subsidiaries taken as a whole, (any such effect or change, where the context so requires, is hereinafter called a “Material Adverse Effect” or “Material Adverse Change”); except as disclosed in the ProspectusRegistration Statement, the Prospectus and the Disclosure Package, no Subsidiary is prohibited or restricted, directly or indirectly, from paying dividends to the Company, or from making any other distribution with respect to such Subsidiary’s capital stock or from repaying to the Company or any other Subsidiary any amounts which may from time to time become due under any loans or advances to such Subsidiary from the Company or such other Subsidiary, or from transferring any such Subsidiary’s property or assets to the Company or to any other Subsidiary; other than as disclosed in the ProspectusRegistration Statement, the Prospectus and the Disclosure Package, the Company and the Operating Partnership do not own, directly or indirectly, any capital stock or other equity securities of any other corporation or any ownership interest in any partnership, joint venture or other association;
d. (d) the Company and the Subsidiaries are in compliance in all material respects with all applicable laws, rules, regulations, orders, decrees and judgments, including those relating to transactions with affiliates;
e. (e) neither the Company nor any Subsidiary is in breach of or in default under (nor has any event occurred which with notice, lapse of time, or both would constitute a breach of, or default under), (i) its respective charter, bylaws, agreement of limited partnership, operating agreement or other similar organizational documents (the “Organizational Documents”), (ii) the performance or observance of any obligation, agreement, covenant or condition contained in any license, indenture, mortgage, deed of trust, loan or credit agreement or other agreement or instrument to which the Company or any Subsidiary is a party or by which any of them or their respective properties is bound, or (iii) any federal, state, local or foreign law, regulation or rule or any decree, judgment, permit or order (each, a “Law”) applicable to the Company or any Subsidiary, except, in the case of clauses (ii) and (iii) above, for such breaches or defaults which would not, individually or in the aggregate, have a Material Adverse Effect;
f. (f) the issuance and sale of the Notes, the execution, delivery and performance of this Agreement, the Indenture and the Notes (collectively, the “Transaction Documents”) and the consummation of the transactions contemplated herein and thereunder (including the issuance of the Conversion Shares upon conversion of the Notes) will not (A) conflict with, or result in any breach of, or constitute a default under (nor constitute any event which with notice, lapse of time, or both would constitute a breach of, or default under), (i) any provision of the Organizational Documents of the Company or any Subsidiary, or (ii) any provision of any license, indenture, mortgage, deed of trust, loan or credit agreement or other agreement or instrument to which the Company or any Subsidiary is a party or by which any of them or their respective properties may be bound or affected, or under any Law applicable to the Company or any Subsidiary, except in the case of this clause (ii) for such breaches or defaults which would not, individually or in the aggregate, have a Material Adverse Effect; or (B) result in the creation or imposition of any lien, charge, claim or encumbrance upon any property or asset of the Company or any Subsidiary;
g. (g) this Agreement and the Management Agreement have been duly authorized, executed and delivered by the Company and the Operating Partnership and each is a legal, valid and binding agreement of the Company and the Operating Partnership enforceable in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, and by general equitable principles, and except to the extent that the indemnification and contribution provisions of Section 12 10 hereof may be limited by federal or state securities laws and public policy considerations in respect thereof;
h. (h) the Commission has not issued any order preventing or suspending the use of any Preliminary Prospectus;
(i) (i) no approval, authorization, consent or order of or filing with any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency is required in connection with the execution, delivery and performance of this Agreement the Transaction Documents by the Company or the Operating Partnership, as applicable, their consummation of the transactions contemplated herein, and herein or thereunder (including the Company’s sale and delivery of the Placement SharesNotes and the Company’s issuance of the Conversion Shares upon conversion thereof), other than (A) such as have been obtained, or will have been obtained at the relevant Settlement Date, Closing Time under the Securities Act, the Trust Indenture Act (as defined below) and the Exchange Act, (B) such approvals as have been obtained in connection with the approval of the listing of the Placement Shares Securities on the Exchange, New York Stock Exchange (the “NYSE”) (C) such as have been obtained or made under the rules and regulations of the Financial Industry Regulatory Authority (“FINRA”) and (D) any necessary qualification under the securities or blue sky laws of the various jurisdictions in which the Placement Shares Securities are being offered by the AgentUnderwriters;
i. (j) each of the Company and the Subsidiaries has all necessary licenses, authorizations, consents and approvals and has made all necessary filings required under any Law, and has obtained all necessary authorizations, consents and approvals from other persons, required in order to conduct their respective businesses as described in the Registration Statement Statement, Prospectus and the ProspectusDisclosure Package, except to the extent that any failure to have any such licenses, authorizations, consents or approvals, to make any such filings or to obtain any such authorizations, consents or approvals would not, individually or in the aggregate, have a Material Adverse Effect; neither the Company nor any of the Subsidiaries is required by any applicable law to obtain accreditation or certification from any governmental agency or authority in order to provide the products and services which it currently provides or which it proposes to provide as set forth in the Registration Statement Statement, Prospectus and the ProspectusDisclosure Package; neither the Company, nor any of the Subsidiaries is in violation of, in default under, or has received any notice regarding a possible violation, default or revocation of any such license, authorization, consent or approval or any federal, state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Company or any of the Subsidiaries the effect of which could result in a Material Adverse Change; and no such license, authorization, consent or approval contains a materially burdensome restriction that is not adequately disclosed in each of the Registration Statement Statement, the Prospectus and the ProspectusDisclosure Package;
j. (k) the Company meets the requirements for use of Form S-3 under the Securities Act; each of the Registration Statement and any Rule 462(b) Registration Statement has become effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement or any Rule 462(b) Registration Statement has been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Company, are contemplated or threatened by the Commission; and the Company has complied to the Commission’s satisfaction with any request on the part of the Commission for additional information;
k. (l) the Preliminary Prospectus when filed and the Registration Statement as of each effective date (including each deemed effective date with respect to the Agent Underwriters pursuant to Rule 430B or otherwise under the Securities Act) and as of the date hereof, complied or will comply, and the Prospectus and any further amendments or supplements to the Registration Statement Statement, the Preliminary Prospectus or the Prospectus at the time they were filed with the Commission, were, or will, when they become effective or are filed with the Commission, as the case may be, comply, in all material respects with the requirements of the Securities Act and the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission thereunder (the “Trust Indenture Act, including Rule 415”); the documents incorporated by reference in the Registration Statement and the Prospectus, when they became effective or at the time they were or hereafter are filed with the Commission, complied and will comply in all material respects with the requirements of the Exchange Act;
l. (m) the Registration Statement, as of each effective date (including each deemed effective date with respect to the Agent Underwriters pursuant to Rule 430B or otherwise under the Securities Act), ) and as of the date hereof, hereof and at each Settlement Datethe Closing Time, did not, and does not or will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and the Preliminary Prospectus does not, and the Prospectus or any amendment or supplement thereto will not, as of its issue date, as of the applicable filing date, as of the date hereof and at each Settlement Date, the Closing Time contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no warranty or representation with respect to any statement contained in or omitted from the Registration Statement Statement, the Preliminary Prospectus or the Prospectus in reliance upon and in conformity with the information concerning the Agent Underwriters and furnished in writing by or on behalf of the Agent Underwriters by the Representatives to the Company expressly for use thereintherein (that information being limited to that described in the last sentence of the first paragraph of Section 10(b) hereof); the documents incorporated by reference in the Registration Statement Statement, the Prospectus and the ProspectusDisclosure Package, at the time the Registration Statement became effective or when such documents incorporated by reference were filed with the Commission, as the case may be, when read together with the other information in the Registration Statement or Statement, the ProspectusProspectus and the Disclosure Package, as the case may be, did not and will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
m. (n) as of 6:30 p.m. (Eastern time) on August 14, 2017 (the “Initial Sale Time”), the Disclosure Package did not, and at the time of each sale of Notes and at the Closing Time, the Disclosure Package will not, contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; as of the issue date or date of first use and at all subsequent times through each Settlement Datethe Initial Sale Time, each Issuer Free Writing Prospectus did not, and at the time of each sale of Placement Shares Notes and at the Settlement dateClosing Time, each such Issuer Free Writing Prospectus will not, contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no warranty or representation with respect to any statement contained in or omitted from the Disclosure Package in reliance upon and in conformity with the information concerning the Underwriters and furnished in writing by or on behalf of the Underwriters by the Representatives to the Company expressly for use therein (that information being limited to that described in the last sentence of the first paragraph of Section 10(b) hereof);
n. (o) each Issuer Free Writing ProspectusProspectus (including the Final Term Sheet), if any, as of its issue date and at all subsequent times through the completion of the public offer and sale of the Placement Shares Notes did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement Statement, Preliminary Prospectus or the Prospectus, including any document incorporated by reference therein, and any preliminary or other prospectus deemed to be a part thereof that has not been superseded or modified;
o. (p) the Company is eligible to use Free Writing Prospectuses in connection with this offering pursuant to Rules 164 and 433 under the Securities Act; any Free Writing Prospectus that the Company is required to file pursuant to Rule 433(d) has been, or will be, filed with the Commission in accordance with the requirements of the Securities Act; and each Free Writing Prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d) or that was prepared by or on behalf of or used by the Company complies or will comply in all material respects with the requirements of the Securities Act;
p. except for any Issuer Free Writing Prospectuses, the Company has not prepared, used or referred to, and will not, without the prior consent of the Agent, prepare, use or refer to, any Free Writing Prospectus;
q. the Prospectus and any Issuer Free Writing Prospectuses (to the extent any such Issuer Free Writing Prospectus was required to be filed with the Commission) delivered to the Agent for use in connection with the public offering of the Placement Shares contemplated herein have been and will be identical to the versions of such documents transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T under the Securities Act;
r. the Company filed the Registration Statement with the Commission before using any Issuer Free Writing Prospectus;
s. there are no actions, suits, proceedings, inquiries or investigations pending or, to the knowledge of the Company or the Operating Partnership, threatened against the Company or any Subsidiary or any of their respective officers and directors or to which the properties, assets or rights of any such entity are subject, at law or in equity, before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority, arbitral panel or agency which could result in a judgment, decree, award or order having a Material Adverse Effect;
t. the consolidated financial statements, including the notes thereto, included in each of the Registration Statement and the Prospectus present fairly the consolidated financial position of the Company and its subsidiaries as of the dates indicated and their consolidated results of operations and changes in financial position ant
Appears in 1 contract
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, represent and warrant to, and agree with to the Agent as of the date of this Agreement, as of each Representation Date (as defined below), as of the time of each sale of Placement Shares pursuant to this Agreement and as of each Settlement Date, unless such representation, warranty or agreement specifies a different date or timeUnderwriters that:
a. (a) the Company has the authorized an authorized, issued and outstanding capitalization as set forth in the Registration Statement and Prospectus under the Prospectuscaption “Capitalization”; the outstanding shares of capital stock of in the Company and the outstanding shares of capital stock, limited liability company interests, and partnership interests in each other entity in which the Company holds, directly or indirectly, any interest, all of which entities and interests are listed in Schedule 2 hereto (each of such entities, including the Operating Partnership, a “Subsidiary”), have been duly authorized and validly authorized and issued and and, in the case of capital stock, are fully paid and non-assessable. All of the outstanding shares of capital stock, partnership interests and membership interests, as the case may be, of the subsidiaries of the Company identified on Schedule 4 hereto (each, a “Subsidiary”) have been duly authorized and are validly issued, fully paid and non-assessable securities thereof and, except as disclosed in the Prospectus, all of the outstanding shares of capital stock, limited liability company interests and partnership interest or membership interests, as the case may be, interests of the Subsidiaries set forth in Schedule 2, are directly or indirectly owned of record and beneficially by the Company; except as disclosed in the Prospectus, there are no outstanding (i) securities or obligations of the Company or any of the Subsidiaries convertible into or exchangeable for any capital stock of of, or equity interest in, the Company or any such Subsidiary, (ii) warrants, rights or options to subscribe for or purchase from the Company or any such Subsidiary any such capital stock or equity interest or any such convertible or exchangeable securities or obligations, or (iii) obligations of the Company or any such Subsidiary to issue any shares of capital stockstock or equity interest, any such convertible or exchangeable securities or obligation, or any such warrants, rights or options; all issued the descriptions of the Company’s share option, bonus and outstanding units of partnership interest other share plans or arrangements, and the options or other rights granted thereunder, set forth in the Operating Partnership (“Units”) owned by Prospectus, accurately and fairly present the Company are owned free information required to be disclosed with respect to such plans, arrangements, options and clear of any perfected security interest or any other security interests, claims, liens or encumbrancesrights;
b. (b) each of the Company and each of the Subsidiaries has been duly incorporated, formed incorporated or organized and is validly existing as a corporation, limited liability company or general or limited partnership or limited liability company in good standing under the laws of its respective jurisdiction of incorporation, formation incorporation or organization with full corporate, limited liability company or partnership power and authority authority, as applicable, to own its respective assets and properties and to conduct its respective businesses as described in each of the Registration Statement and the Prospectus, Prospectus and, in the case of the Company and the Operating Partnership, to execute and deliver this Agreement and the Formation Transaction Agreements (as defined below) to which it is a party and to consummate the transactions contemplated herein and therein, and, in the case of the Company, as general partner of the Operating Partnership to cause the Operating Partnership to execute and deliver this Agreement and to perform its obligations under this Agreement and under each of the Amended Formation Transaction Agreements to which it is a party and Restated Management to consummate the transactions contemplated herein and therein; the Company is the sole general partner of the Operating Partnership and, as of the initial Date of Delivery, the aggregate percentage interests of the Company and the limited partners in the Operating Partnership will be as set forth in the Prospectus; provided, that to the extent any portion of the Option Shares are sold, the percentage interest of the Company and of such limited partners will be adjusted accordingly; as used in this Agreement, dated October 27the term “Formation Transaction Agreements” means, 2015collectively, (i) the Agreement of Limited Partnership of the Operating Partnership (as amended, the “Partnership Agreement”) filed as Exhibit 10.2 to the Registration Statement, (ii) that certain Master Contribution Agreement by and among the Company, the Operating Partnership and the Manager various contributing entities and persons named therein providing for the contribution of properties or interests therein and certain other assets to the Operating Partnership filed as Exhibit 10.3 to the Registration Statement (the “Management Contribution Agreement”), (iii) those certain Employment Agreements between the Company and the Operating Partnership, on the one hand, and each of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇, on the other hand (collectively, the “Key Officers”) filed as Exhibits 10.7, 10.8, 10.9, 10.10 and 10.11 to the Registration Statement (the “Employment Agreements”), (iv) those certain Noncompetition Agreements between the Company and the Operating Partnership, on the one hand, and each of the Key Officers, on the other hand, filed as Exhibit B to the Employment Agreements (the “Noncompetition Agreements”), and (v) those certain Nondisclosure Agreements between the Company and the Operating Partnership, on the one hand, and each of the Key Officers, on the other hand, filed as Exhibit C to the Employment Agreements (the “Nondisclosure Agreements”).
(c) the OP Units to be issued in connection with the Formation Transactions have been duly authorized for issuance by the Operating Partnership to the prospective holders thereof, and at the First Closing Date will be validly issued and fully paid; the issuance of the OP Units in the Formation Transactions will be exempt from registration or qualification under the Securities Act and applicable state securities laws; none of the OP Units to be issued in the Formation Transactions will be issued in violation of the preemptive or other similar rights of any security holder of the Operating Partnership; except for OP Units to be issued in the Formation Transactions and restricted incentive units to be issued under the Company’s equity incentive plan as described in the Prospectus, there are no outstanding options, rights (preemptive or otherwise) or warrants to purchase or subscribe for OP Units or other securities of the Operating Partnership or in any other Subsidiary;
c. (d) the Company and each of the Subsidiaries is are duly qualified or licensed and are in good standing in each jurisdiction in which it conducts its they conduct their respective businesses or in which it owns they own or leases lease real property or otherwise maintains maintain an office and in which the failure, individually or in the aggregate, to be so qualified or licensed would could have a material adverse effect on the assets, business, operations, earnings, prospects, properties or condition (financial or otherwise) ), present or prospective, of the Company and the Subsidiaries taken as a whole, (any such effect or change, where the context so requires, is hereinafter called a “Material Adverse Effect” or “Material Adverse Change”); except as disclosed in the Prospectus, no Subsidiary is prohibited or restricted, directly or indirectly, from paying dividends to the Company, or from making any other distribution with respect to such Subsidiary’s capital stock or equity interests or from repaying to the Company or any other Subsidiary any amounts which may from time to time become due under any loans or advances to such Subsidiary from the Company or such other Subsidiary, or from transferring any such Subsidiary’s property or assets to the Company or to any other Subsidiary; other than as disclosed in the Prospectus, the Company and the Operating Partnership do does not own, directly or indirectly, any capital stock or other equity securities of any other corporation or any ownership interest in any partnership, limited liability company, joint venture or other association;
d. (e) the Company has delivered to the Representatives two complete manually signed copies of the Registration Statement and of each consent and certificate of experts, if any, filed as a part thereof, and conformed copies of the Registration Statement (without exhibits) and the Preliminary Prospectus, as amended or supplemented, in such quantities and at such places as the Representatives have reasonably requested for each of the Underwriters;
(f) the Company has not distributed and will not distribute, prior to the later of the last Date of Delivery or the completion of the Underwriters’ distribution of the Shares, any offering material in connection with the offering and sale of the Shares other than a Preliminary Prospectus, the Prospectus and the Registration Statement;
(g) the Company and each of the Subsidiaries are in compliance in all material respects with all applicable laws, rules, regulations, orders, decrees and judgments, including those relating to transactions with affiliates, except where the failure to be in compliance could not, individually or in the aggregate, be reasonably be expected to have a Material Adverse Effect;
e. (h) neither the Company nor any Subsidiary is in breach of or in default under (nor has any event occurred which with notice, lapse of time, or both would constitute a breach of, or default under), (i) its respective charterorganizational documents, bylaws, agreement of limited partnership, operating agreement or other similar organizational documents (the “Organizational Documents”), (ii) in the performance or observance of any obligation, agreement, covenant or condition contained in any license, indenture, mortgage, deed of trust, loan or credit agreement or other agreement or instrument to which the Company or any Subsidiary is a party or by which any of them or their respective properties is bound, or (iii) any federal, state, local or foreign law, regulation or rule or any decree, judgment, permit or order (each, a “Law”) applicable to the Company or any Subsidiary, except, in the case of clauses (ii) and (iii) above, except for such breaches or defaults which would could not, individually or in the aggregate, be reasonably be expected to have a Material Adverse Effect;
f. (i) the execution, delivery and performance of this Agreement, Agreement and the Formation Transaction Agreements and consummation of the transactions contemplated herein and therein will not (A) conflict with, or result in any breach of, or constitute a default under (nor constitute any event which with notice, lapse of time, or both would constitute a breach of, or default under), (i) any provision of the Organizational Documents Certificate of Incorporation, as amended, or Bylaws of the Company Company, any provision of the Certificate of Limited Partnership of the Operating Partnership or the Partnership Agreement, or any provision of any of the organizational documents of any Subsidiary, or (ii) any provision of any license, indenture, mortgage, deed of trust, loan or credit agreement or other agreement or instrument to which the Company or any Subsidiary is a party or by which any of them or their respective properties may be bound or affected, or under any Law federal, state, local or foreign law, regulation or rule or any decree, judgment or order applicable to the Company or any Subsidiary, except in the case of this clause (ii) for such breaches or defaults which would not, individually or in the aggregate, could not have a Material Adverse Effect; or (B) result in the creation or imposition of any lien, charge, claim or encumbrance upon any property or asset of the Company or any Subsidiary;
g. (j) the Company has the corporate power to issue, sell and deliver the Shares as provided herein; this Agreement and the Management Agreement Formation Transaction Agreements to which the Company is a party have been duly authorized, executed and delivered by the Company and the Operating Partnership and each of such agreements is a legal, valid and binding agreement of the Company and the Operating Partnership enforceable in accordance with its respective terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, and by general equitable principles, and except to the extent that the enforceability of the indemnification and contribution provisions of Section 12 9 hereof may be limited by federal or state securities laws and public policy considerations in respect thereof;
h. (k) this Agreement and each of the Formation Transaction Agreements have been duly authorized, executed and delivered by the Operating Partnership and each such agreement constitutes the valid and binding agreement of the Operating Partnership enforceable against the Operating Partnership in accordance with its respective terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, and by general equitable principles, and except to the extent that the enforceability of the indemnification and contribution provisions of Section 9 hereof may be limited by federal or state securities laws and public policy considerations in respect thereof; the Formation Transaction Agreements and all other instruments, documents and agreements to be delivered pursuant thereto are sufficient to effect the transfer to the Company or Operating Partnership of all direct or indirect interests in the properties and other assets specified therein and as described in the Prospectus upon payment of the consideration therefor as set forth therein;
(l) no approval, authorization, consent or order of or registration or filing with any federal, state, state or local or foreign governmental or regulatory commission, board, body, authority or agency is required in connection with the Company’s or the Operating Partnership’s execution, delivery and performance of this Agreement by or any of the Company or the Operating PartnershipFormation Transaction Agreements to which it is a party, their its consummation of the transactions contemplated hereinherein or therein, and including the Company’s sale and delivery of the Placement Shares, the sale and issuance of the Limited Voting Stock and the consummation of the Formation Transactions, other than (A) such as have been obtained, or will have been obtained at the Closing Time or the relevant Settlement DateDate of Delivery, as the case may be, under the Securities Act and the Securities Exchange Act of 1934 (the “Exchange Act”), (B) such approvals as have been obtained in connection with the approval of the listing quotation of the Placement Shares on the ExchangeNasdaq National Market, (C) such as have been obtained or made under the rules and regulations of the Financial Industry Regulatory Authority (“FINRA”) and (D) any necessary qualification under the securities or blue sky laws of the various jurisdictions in which the Placement Shares are being offered by the AgentUnderwriters, all of which have been obtained or will be obtained within the statutory period proscribed therefor, (D) filings to perfect the transfers contemplated by the Formation Transaction Agreements, including without limitation the filing of deeds, UCC financing statements and amendments to partnership and limited liability company organizational documents, all of which will have been made as of the Closing Time, and (E) such approvals, authorizations, consents or orders or filings, the absence of which could not, individually or in the aggregate, have a Material Adverse Effect;
i. each of (m) the Company and each of the Subsidiaries has all necessary licenses, permits, authorizations, consents and approvals and has made all necessary filings required under any Lawfederal, state or local law, regulation or rule, and has obtained all necessary authorizations, consents and approvals from other persons, required in order to conduct their respective businesses as described in the Registration Statement and the Prospectus, except to the extent that any failure to have any such licenses, permits, authorizations, consents or approvals, to make any such filings or to obtain any such authorizations, consents or approvals would could not, individually or in the aggregate, have a Material Adverse Effect; neither the Company nor any of the Subsidiaries is required by any applicable law to obtain accreditation or certification from any governmental agency or authority in order to provide the products and services which it currently provides or which it proposes to provide as set forth in the Registration Statement and Prospectus except for accreditation or certification required to be obtained in the Prospectusordinary course of business including investment advisor registration to be obtained by one of the Subsidiaries; neither the Company, Company nor any of the Subsidiaries is in violation of, in default under, or has received any notice regarding a possible violation, default or revocation of any such license, permit, authorization, consent or approval or any federal, state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Company or any of the Subsidiaries the effect of which could reasonably be expected, either individually or in the aggregate, to result in a Material Adverse Change; and no such license, permit, authorization, consent or approval contains a materially burdensome restriction that is not adequately disclosed in each of the Registration Statement and the Prospectus;
j. (n) each of the Company meets the requirements for use of Form S-3 under the Securities Act; the Registration Statement and any Rule 462(b) Registration Statement has become effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Company, are contemplated or threatened by the Commission; and the Company has complied to the Commission’s satisfaction with any request on the part of the Commission for additional information;
k. the Registration Statement as of each effective date (including each deemed effective date with respect to the Agent pursuant to Rule 430B or otherwise under the Securities Act) and as of the date hereof, complied or will comply, and the Prospectus and any further amendments or supplements to the Registration Statement or the Prospectus at the time they were filed with the Commission, were, or will, when they become effective or are filed with the Commission, as the case may be, comply, in all material respects with the requirements of the Securities Act, including Rule 415; the documents incorporated by reference in the Registration Statement and the Prospectus, when they became effective or at the time they were or hereafter are filed with the Commission, complied and will comply in all material respects with the requirements of the Exchange Act;
l. the Registration Statement, as of each effective date (including each deemed effective date with respect to the Agent pursuant to Rule 430B or otherwise under the Securities Act), and as of the date hereof, and at each Settlement Date, did not, and does not or will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and the Prospectus or any amendment or supplement thereto will not, as of its issue date, as of the applicable filing date, as of the date hereof and at each Settlement Date, contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no warranty or representation with respect to any statement contained in or omitted from the Registration Statement or the Prospectus in reliance upon and in conformity with the information concerning the Agent and furnished in writing by or on behalf of the Agent to the Company expressly for use therein; the documents incorporated by reference in the Registration Statement and the Prospectus, at the time the Registration Statement became effective or when such documents incorporated by reference were filed with the Commission, as the case may be, when read together with the other information in the Registration Statement or the Prospectus, as the case may be, did not and will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
m. as of the issue date or date of first use and at all subsequent times through each Settlement Date, each Issuer Free Writing Prospectus did not, and at the time of each sale of Placement Shares and at the Settlement date, each such Issuer Free Writing Prospectus will not, contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
n. each Issuer Free Writing Prospectus, if any, as of its issue date and at all subsequent times through the completion of the public offer and sale of the Placement Shares did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein, and any other prospectus deemed to be a part thereof that has not been superseded or modified;
o. the Company is eligible to use Free Writing Prospectuses in connection with this offering pursuant to Rules 164 and 433 under the Securities Act; any Free Writing Prospectus that the Company is required to file pursuant to Rule 433(d) has been, or will be, filed with the Commission in accordance with the requirements of the Securities Act; and each Free Writing Prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d) or that was prepared by or on behalf of or used by the Company complies or will comply in all material respects with the requirements of the Securities Act;
p. except for any Issuer Free Writing Prospectuses, the Company has not prepared, used or referred to, and will not, without the prior consent of the Agent, prepare, use or refer to, any Free Writing Prospectus;
q. the Prospectus and any Issuer Free Writing Prospectuses (to the extent any such Issuer Free Writing Prospectus was required to be filed with the Commission) delivered to the Agent for use in connection with the public offering of the Placement Shares contemplated herein have been and will be identical to the versions of such documents transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T under the Securities Act;
r. the Company filed the Registration Statement with the Commission before using any Issuer Free Writing Prospectus;
s. there are no actions, suits, proceedings, inquiries or investigations pending or, to the knowledge of the Company or the Operating Partnership, threatened against the Company or any Subsidiary or any of their respective officers and directors or to which the properties, assets or rights of any such entity are subject, at law or in equity, before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority, arbitral panel or agency which could result in a judgment, decree, award or order having a Material Adverse Effect;
t. the consolidated financial statements, including the notes thereto, included in each of the Registration Statement and the Prospectus present fairly the consolidated financial position of the Company and its subsidiaries as of the dates indicated and their consolidated results of operations and changes in financial position anth
Appears in 1 contract
Sources: Underwriting Agreement (Thomas Properties Group Inc)
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, represent and warrant to, and agree with to the Agent Underwriters as of the date of this Agreementhereof, as of each Representation Date the Initial Sale Time (as defined below), as of the time of each sale of Placement Shares pursuant to this Agreement Closing Time and as of any Option Closing Time (if any), and agrees with each Settlement DateUnderwriter, unless such representation, warranty or agreement specifies a different date or timethat:
a. (a) the Company has the authorized and outstanding capitalization as set forth in the Registration Statement Statement, the Disclosure Package and the ProspectusProspectus under the section captioned “Capitalization”; the outstanding shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable. All of the outstanding shares of capital stock, partnership interests and membership interests, as the case may be, of the subsidiaries of the Company identified on Schedule 4 IV hereto (each, a “Subsidiary”) have been duly authorized and are validly issued, fully paid and non-assessable securities thereof and, except as disclosed in both the ProspectusProspectus and the Disclosure Package, all of the outstanding shares of capital stock, partnership interest or membership interests, as the case may be, of the Subsidiaries are directly or indirectly owned of record and beneficially by the Company; except as disclosed in both the ProspectusProspectus and the Disclosure Package, there are no outstanding (i) securities or obligations of the Company or any of the Subsidiaries convertible into or exchangeable for any capital stock of the Company or any such Subsidiary, (ii) warrants, rights or options to subscribe for or purchase from the Company or any such Subsidiary any such capital stock or any such convertible or exchangeable securities or obligations, or (iii) obligations of the Company or any such Subsidiary to issue any shares of capital stock, any such convertible or exchangeable securities or obligation, or any such warrants, rights or options; all issued and outstanding units of partnership interest in the Operating Partnership (“Units”) owned by the Company are owned free and clear of any perfected security interest or any other security interests, claims, liens or encumbrances;
b. (b) each of the Company and each of the Subsidiaries has been duly incorporated, formed or organized and is validly existing as a corporation, general or limited partnership or limited liability company in good standing under the laws of its respective jurisdiction of incorporation, formation or organization with full power and authority to own its respective properties and to conduct its respective businesses as described in each of the Registration Statement Statement, the Prospectus and the ProspectusDisclosure Package, and, in the case of the Company and the Operating Partnership, to execute and deliver this Agreement and to consummate the transactions contemplated herein and to perform its obligations under the Amended and Restated Management Agreement, dated October 27, 2015, by and among the Company, the Operating Partnership and the Manager (the “Management Agreement”);
c. (c) the Company and each of the Subsidiaries is duly qualified or licensed and in good standing in each jurisdiction in which it conducts its businesses or in which it owns or leases real property or otherwise maintains an office and in which the failure, individually or in the aggregate, to be so qualified or licensed would have a material adverse effect on the assets, business, operations, earnings, prospects, properties or condition (financial or otherwise) of the Company and the Subsidiaries taken as a whole, (any such effect or change, where the context so requires, is hereinafter called a “Material Adverse Effect” or “Material Adverse Change”); except as disclosed in both the ProspectusProspectus and the Disclosure Package, no Subsidiary is prohibited or restricted, directly or indirectly, from paying dividends to the Company, or from making any other distribution with respect to such Subsidiary’s capital stock or from repaying to the Company or any other Subsidiary any amounts which may from time to time become due under any loans or advances to such Subsidiary from the Company or such other Subsidiary, or from transferring any such Subsidiary’s property or assets to the Company or to any other Subsidiary; other than as disclosed in both the ProspectusProspectus and the Disclosure Package, the Company and the Operating Partnership do not own, directly or indirectly, any capital stock or other equity securities of any other corporation or any ownership interest in any partnership, joint venture or other association;
d. (d) the Company and the Subsidiaries are in compliance in all material respects with all applicable laws, rules, regulations, orders, decrees and judgments, including those relating to transactions with affiliates;
e. (e) neither the Company nor any Subsidiary is in breach of or in default under (nor has any event occurred which with notice, lapse of time, or both would constitute a breach of, or default under), (i) its respective charter, bylaws, agreement of limited partnership, operating agreement or other similar organizational documents (the “Organizational Documentsorganizational documents”), (ii) the performance or observance of any obligation, agreement, covenant or condition contained in any license, indenture, mortgage, deed of trust, loan or credit agreement or other agreement or instrument to which the Company or any Subsidiary is a party or by which any of them or their respective properties is bound, or (iii) any federal, state, local or foreign law, regulation or rule or any decree, judgment, permit or order (each, a “Law”) applicable to the Company or any Subsidiary, except, in the case of clauses (ii) and (iii) above, for such breaches or defaults which would not, individually or in the aggregate, have a Material Adverse Effect;
f. (f) the execution, delivery and performance of this Agreement, and consummation of the transactions contemplated herein will not (A) conflict with, or result in any breach of, or constitute a default under (nor constitute any event which with notice, lapse of time, or both would constitute a breach of, or default under), (i) any provision of the Organizational Documents organizational documents of the Company or any Subsidiary, or (ii) any provision of any license, indenture, mortgage, deed of trust, loan or credit agreement or other agreement or instrument to which the Company or any Subsidiary is a party or by which any of them or their respective properties may be bound or affected, or under any Law applicable to the Company or any Subsidiary, except in the case of this clause (ii) for such breaches or defaults which would not, individually or in the aggregate, have a Material Adverse Effect; or (B) result in the creation or imposition of any lien, charge, claim or encumbrance upon any property or asset of the Company or any Subsidiary;
g. (g) this Agreement and the Management Agreement have been duly authorized, executed and delivered by the Company and the Operating Partnership and each is a legal, valid and binding agreement of the Company and the Operating Partnership enforceable in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, and by general equitable principles, and except to the extent that the indemnification and contribution provisions of Section 12 10 hereof may be limited by federal or state securities laws and public policy considerations in respect thereof;
h. (h) the Commission has not issued any order preventing or suspending the use of any Preliminary Prospectus;
(i) no approval, authorization, consent or order of or filing with any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency is required in connection with the execution, delivery and performance of this Agreement by the Company or the Operating Partnership, their consummation of the transactions contemplated herein, and the Company’s sale and delivery of the Placement Shares, other than (A) such as have been obtained, or will have been obtained at the Closing Time or the relevant Settlement DateOption Closing Time, as the case may be, under the Securities Act and the Exchange Act, (B) such approvals as have been obtained in connection with the approval of the listing of the Placement Shares on the ExchangeNew York Stock Exchange (the “NYSE”), (C) such as have been obtained or made under the rules and regulations of the Financial Industry Regulatory Authority (“FINRA”) and (D) any necessary qualification under the securities or blue sky laws of the various jurisdictions in which the Placement Shares are being offered by the AgentUnderwriters;
i. (j) each of the Company and the Subsidiaries has all necessary licenses, authorizations, consents and approvals and has made all necessary filings required under any Law, and has obtained all necessary authorizations, consents and approvals from other persons, required in order to conduct their respective businesses as described in the Registration Statement Statement, Prospectus and the ProspectusDisclosure Package, except to the extent that any failure to have any such licenses, authorizations, consents or approvals, to make any such filings or to obtain any such authorizations, consents or approvals would not, individually or in the aggregate, have a Material Adverse Effect; neither the Company nor any of the Subsidiaries is required by any applicable law to obtain accreditation or certification from any governmental agency or authority in order to provide the products and services which it currently provides or which it proposes to provide as set forth in the Registration Statement Statement, Prospectus and the ProspectusDisclosure Package; neither the Company, nor any of the Subsidiaries is in violation of, in default under, or has received any notice regarding a possible violation, default or revocation of any such license, authorization, consent or approval or any federal, state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Company or any of the Subsidiaries the effect of which could result in a Material Adverse Change; and no such license, authorization, consent or approval contains a materially burdensome restriction that is not adequately disclosed in each of the Registration Statement Statement, the Prospectus and the ProspectusDisclosure Package;
j. (k) the Company meets the requirements for use of Form S-3 under the Securities Act; each of the Registration Statement and any Rule 462(b) Registration Statement has become effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement or any Rule 462(b) Registration Statement has been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Company, are contemplated or threatened by the Commission; and the Company has complied to the Commission’s satisfaction with any request on the part of the Commission for additional information;
k. (l) the Preliminary Prospectus when filed and the Registration Statement as of each effective date (including each deemed effective date with respect to the Agent Underwriters pursuant to Rule 430B or otherwise under the Securities Act) and as of the date hereof, hereof complied or will comply, and the Prospectus and any further amendments or supplements to the Registration Statement Statement, the Preliminary Prospectus or the Prospectus at the time they were filed with the Commission, were, or will, when they become effective or are filed with the Commission, as the case may be, comply, in all material respects with the requirements of the Securities Act, including Rule 415Act and the Securities Act Regulations; the documents incorporated by reference in the Registration Statement and the Prospectus, when they became effective or at the time they were or hereafter are filed with the Commission, complied and will comply in all material respects with the requirements of the Exchange ActAct and the rules and regulations of the Commission under the Exchange Act (the “Exchange Act Regulations”);
l. (m) the Registration Statement, as of each effective date (including each deemed effective date with respect to the Agent Underwriters pursuant to Rule 430B or otherwise under the Securities Act), ) and as of the date hereof, and at each Settlement Datethe Closing Time or any Option Closing Time, did not, and does not or will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and the Preliminary Prospectus does not, and the Prospectus or any amendment or supplement thereto will not, as of its issue date, as of the applicable filing date, as of the date hereof and at the Closing Time and on each Settlement DateOption Closing Time (if any), contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no warranty or representation with respect to any statement contained in or omitted from the Registration Statement Statement, the Preliminary Prospectus or the Prospectus in reliance upon and in conformity with the information concerning the Agent Underwriters and furnished in writing by or on behalf of the Agent Underwriters by the Representative to the Company expressly for use thereintherein (that information being limited to that described in the last sentence of the first paragraph of Section 10(b) hereof); the documents incorporated by reference in the Registration Statement Statement, the Disclosure Package and the Prospectus, at the time the Registration Statement became effective or when such documents incorporated by reference were filed with the Commission, as the case may be, when read together with the other information in the Registration Statement Statement, the Disclosure Package or the Prospectus, as the case may be, did not and will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
m. (n) as of 8:20 am (Eastern time) on June 10, 2016 (the “Initial Sale Time”), the Disclosure Package did not, and at the time of each sale of Shares and at the Closing Time and each Option Closing Time, the Disclosure Package will not, contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; as of the issue date or date of first use and at all subsequent times through each Settlement Datethe Initial Sale Time, each Issuer Free Writing Prospectus did not, and at the time of each sale of Placement Shares and at the Settlement dateClosing Time and each Option Closing Time, each such Issuer Free Writing Prospectus will not, contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no warranty or representation with respect to any statement contained in or omitted from the Disclosure Package in reliance upon and in conformity with the information concerning the Underwriters and furnished in writing by or on behalf of the Underwriters by the Representative to the Company expressly for use therein (that information being limited to that described in the last sentence of the first paragraph of Section 10(b) hereof);
n. (o) each Issuer Free Writing Prospectus, if any, as of its issue date and at all subsequent times through the completion of the public offer and sale of the Placement Shares did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement Statement, Preliminary Prospectus or the Prospectus, including any document incorporated by reference therein, and any preliminary or other prospectus deemed to be a part thereof that has not been superseded or modified;
o. (p) the Company is eligible to use Free Writing Prospectuses in connection with this offering pursuant to Rules 164 and 433 under the Securities Act; any Free Writing Prospectus that the Company is required to file pursuant to Rule 433(d) under the Securities Act Regulations has been, or will be, filed with the Commission in accordance with the requirements of the Securities ActAct and the Securities Act Regulations; and each Free Writing Prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d) or that was prepared by or on behalf of or used by the Company complies or will comply in all material respects with the requirements of the Securities Act;
p. except for any Issuer Free Writing Prospectuses, the Company has not prepared, used or referred to, and will not, without the prior consent of the Agent, prepare, use or refer to, any Free Writing Prospectus;
q. the Prospectus and any Issuer Free Writing Prospectuses (to the extent any such Issuer Free Writing Prospectus was required to be filed with the Commission) delivered to the Agent for use in connection with the public offering of the Placement Shares contemplated herein have been and will be identical to the versions of such documents transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T under the Securities Act;
r. the Company filed the Registration Statement with the Commission before using any Issuer Free Writing Prospectus;
s. there are no actions, suits, proceedings, inquiries or investigations pending or, to the knowledge of the Company or the Operating Partnership, threatened against the Company or any Subsidiary or any of their respective officers and directors or to which the properties, assets or rights of any such entity are subject, at law or in equity, before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority, arbitral panel or agency which could result in a judgment, decree, award or order having a Material Adverse Effect;
t. the consolidated financial statements, including the notes thereto, included in each of the Registration Statement and the Prospectus present fairly the consolidated financial position of the Company and its subsidiaries as of the dates indicated and their consolidated results of operations and changes in financial position anrequired
Appears in 1 contract
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, Partnership represent and warrant to, and agree with to each Underwriter that:
(a) the Agent as authorized shares of beneficial interest of the date of this Agreement, as of each Representation Date (as defined below), as of Company conform in all material respects to the time of each sale of Placement Shares pursuant to this Agreement and as of each Settlement Date, unless such representation, warranty or agreement specifies a different date or time:
a. description thereof contained in the Prospectus; the Company has the authorized an authorized, issued and outstanding capitalization as set forth in the Registration Statement and Prospectus under the caption “Capitalization” (other than for subsequent issuances, if any, pursuant to employee benefit plans described in the Prospectus or upon exercise of outstanding options or warrants described in the Prospectus); at the First Closing Date, 42,298,008 Common Shares will be issued and outstanding and no other shares of beneficial interest will be issued and outstanding; the outstanding shares of beneficial interest of the Company and the outstanding shares of beneficial interest and capital stock of each subsidiary of the Company Company, all of which are listed on Exhibit 21 to the Registration Statement (each, including the Operating Partnership, except where noted, a “Subsidiary” and, collectively, “Subsidiaries”) including Common Shares owned by Selling Shareholders have been duly and validly authorized and issued and are fully paid and non-assessable. All of the outstanding shares of capital stocknonassessable, partnership interests and membership interests, as in the case may beof limited liability company membership interests or units of limited partnership interest, of the subsidiaries of the Company identified on Schedule 4 hereto (each, a “Subsidiary”) have been duly and validly authorized and issued and are validly issuedfully paid, fully paid have been issued in compliance with federal and non-assessable state securities thereof andlaws, and except as disclosed in the ProspectusProspectus with respect to First States Partners II, L.P., all of the outstanding shares of beneficial interest, capital stock, units of limited partnership interest or and limited liability company membership interests, as the case may be, interests of the Subsidiaries Subsidiaries, excluding the Operating Partnership, are directly or indirectly owned of record and beneficially by the Company; except as disclosed in the Prospectus, there are no outstanding (i) securities or obligations of the Company or any of the Subsidiaries convertible into or exchangeable for any capital stock equity interests of the Company or any such Subsidiary, (ii) warrants, rights or options to subscribe for or purchase from the Company or any such Subsidiary any such capital stock equity interests or any such convertible or exchangeable securities or obligations, obligations or (iii) obligations of the Company or any such Subsidiary to issue any shares of capital stockequity interests, any such convertible or exchangeable securities or obligation, or any such warrants, rights or options; all issued the descriptions of the Company’s share option, bonus and outstanding units of partnership interest other share plans or arrangements, and the options or other rights granted thereunder, set forth in the Operating Partnership Prospectus accurately and fairly present the information required to be disclosed with respect to such plans, arrangements, options and rights.
(“Units”b) owned by the Company are owned free and clear of any perfected security interest or any other security interests, claims, liens or encumbrances;
b. each of the Company and each of the Subsidiaries has been duly incorporated, formed or organized and is validly existing as a corporation, general or limited partnership or limited liability company in good standing real estate investment trust under the laws of its respective jurisdiction the State of incorporationMaryland and is in good standing with the State Department of Assessments and Taxation of Maryland (the “SDAT”), formation or organization with full all requisite trust power and authority to own own, lease and operate its respective properties properties, and to conduct its respective businesses business as described in each of the Registration Statement and the Prospectus, and, in the case of the Company and the Operating Partnership, to execute and deliver this Agreement and to consummate the transactions contemplated herein and to perform its obligations under the Amended and Restated Management Agreement, dated October 27, 2015, by and among the Company, the Operating Partnership and the Manager (the “Management Agreement”);
c. the Company and each of the Subsidiaries is duly qualified as a foreign entity to transact business or licensed and is in good standing in each jurisdiction in which it conducts the nature or conduct of its businesses business requires such qualification or in which it owns or leases real property or otherwise maintains an office license and in which the failure, individually or in the aggregate, to be so qualified or licensed would could, individually or in the aggregate, reasonably be expected to have a material adverse effect on the assets, business, operations, earnings, prospects, properties or condition (financial or otherwise) ), of the Company and the Subsidiaries taken as a whole, whole (any such effect or change, where the context so requires, is hereinafter called a “Material Adverse Effect” or “Material Adverse Change”); except as disclosed in the Prospectus, all of the issued and outstanding shares of beneficial interest, capital stock, limited liability company membership interests or units of limited partnership interests of each Subsidiary are owned by the Company directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim; except as disclosed in the Prospectus, no Subsidiary is prohibited or restricted, directly or indirectly, from paying dividends to the Company, or from making any other distribution with respect to such Subsidiary’s capital stock or from repaying to the Company or any other Subsidiary any amounts which may from time to time become due under any loans or advances to such Subsidiary from the Company or such other Subsidiary, or from transferring any such Subsidiary’s property or assets to the Company or to any other Subsidiary; other than as disclosed in the ProspectusProspectus and the next paragraph, the Company and the Operating Partnership do does not own, directly or indirectly, any capital stock or other equity securities of any other corporation or any ownership interest in any partnership, joint venture or other association;.
d. (c) upon completion of the offering of the Shares (i) the Company will be a holder of units of limited partnership interest in the Operating Partnership (the “Units”) representing an approximate 95.7% interest in the Operating Partnership, (ii) First States Group, LLC (the “General Partner”) will be the holder of Units representing an approximate 0.50% interest in the Operating Partnership, as its sole general partner, and (iii) the Company will own a 100% membership interest in the General Partner; the Subsidiaries have been duly incorporated, formed or organized, as the case may be, and are validly existing as a corporation, limited liability company, general partnership or limited partnership, as the case may be, in good standing under the laws of their respective jurisdictions of incorporation, formation or organization, as applicable, with all requisite power and authority to own, lease and operate their respective properties and to conduct their respective business as described in the Registration Statement and the Prospectus; each Subsidiary is duly qualified to transact business or licensed as a foreign corporation, foreign limited partnership or foreign limited liability company, as applicable, and is in good standing in each jurisdiction in which the conduct or nature of their business requires such qualification or license, and in which the failure to be so qualified or licensed could, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(d) the Amended and Restated Agreement of Limited Partnership of the Operating Partnership, as further amended and/or restated (the “Partnership Agreement”), has been duly and validly authorized, executed and delivered by or on behalf of the partners of the Operating Partnership and constitutes a valid and binding agreement of the parties thereto, enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally or by general principles of equity.
(e) the Company has delivered to the Representatives two complete manually signed copies of the Registration Statement and of each consent and certificate of experts filed as a part thereof, and conformed copies of the Registration Statement (without exhibits) and the Preliminary Prospectus, as amended or supplemented, in such quantities and at such places as the Representatives have reasonably requested for each of the Underwriters.
(f) the Company has not distributed and will not distribute, prior to the later of the last Option Closing Date or the completion of the Underwriters’ distribution of the Shares, any offering material in connection with the offering and sale of the Shares other than a Preliminary Prospectus, the Prospectus and the Registration Statement.
(g) the Company and the Subsidiaries are in compliance in all material respects with all applicable laws, rules, regulations, orders, decrees and judgments, including those relating to transactions with affiliates;, except where any failures to be in compliance could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
e. (h) the Company is not in violation of its Amended and Restated Declaration of Trust, as amended or restated (the “Declaration of Trust”) or Bylaws; the Operating Partnership is not in violation of its Certificate of Limited Partnership or the Partnership Agreement, and, to our knowledge, no Subsidiary is in violation of its applicable organizational documents (including, without limitation, partnership and limited liability company agreements); neither the Company nor any Subsidiary is in breach of or default in default under (nor has any event occurred which with notice, lapse of time, or both would constitute a breach of, or default under), (i) its respective charter, bylaws, agreement of limited partnership, operating agreement or other similar organizational documents (the “Organizational Documents”), (iiin) the performance or observance by the Company or any Subsidiary, as the case may be, of any obligation, agreement, contract, franchise, covenant or condition contained in any license, indenture, mortgage, deed of trust, loan or credit agreement agreement, lease or other agreement or instrument to which the Company or any Subsidiary is a party or by which any of them or their respective properties is bound, or (iii) any federal, state, local or foreign law, regulation or rule or any decree, judgment, permit or order (each, a “Law”) applicable to the Company or any Subsidiary, except, in the case of clauses (ii) and (iii) above, except for such breaches or defaults which would notwhich, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect;.
f. (i) the execution, delivery and performance of this Agreement, the issuance, sale and delivery by the Company of the Shares and the consummation of the transactions contemplated herein will not (A) conflict with, or result in any breach of, or constitute a default under (nor constitute any event which with notice, lapse of time, or both would constitute a breach of, or default under), default) (i) by the Company of any provisions of its Declaration of Trust or Bylaws, by the Operating Partnership of any provisions under its Certificate of Limited Partnership or Partnership Agreement, by any Subsidiary (excluding the Operating Partnership) of any provision of the Organizational Documents of the Company or any Subsidiaryits applicable organizational documents, or (ii) of any provision of any obligation, agreement, contract, franchise, license, indenture, mortgage, deed of trust, loan or credit agreement agreement, lease or other agreement or instrument to which the Company or any Subsidiary is a party or by which any of them or their respective properties may be bound or affected, or (iii) under any Law federal, state, local or foreign law, regulation or rule or any decree, judgment or order applicable to the Company or any Subsidiary, except in the case of this clause (ii) for such breaches or defaults which would not, individually or in the aggregate, have a Material Adverse Effect; or (B) result in the creation or imposition of any lien, charge, claim or encumbrance upon any property or asset of the Company or any Subsidiary;.
g. (j) the Company has the full legal right, trust power and authority to enter into this Agreement and to consummate the Management transactions contemplated herein; the Company has the trust power to issue, sell and deliver the Shares as provided herein; this Agreement have has been duly authorized, executed and delivered by the Company and the Operating Partnership and each is a legal, valid and binding agreement of the Company and enforceable against the Operating Partnership enforceable Company in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, and by general equitable principles, and except to the extent that the indemnification and contribution provisions of Section 12 9 hereof may be limited by federal or state securities laws and public policy considerations in respect thereof;.
h. (k) the Operating Partnership has the full legal right, power and authority to enter into this Agreement and to consummate the transactions contemplated herein; this Agreement has been duly authorized, executed and delivered by the Operating Partnership and constitutes the valid and binding agreement of the Operating Partnership enforceable against the Operating Partnership in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, and by general equitable principles, and except to the extent that the indemnification and contribution provisions of Section 9 hereof may be limited by federal or state securities laws and public policy considerations in respect thereof.
(l) no approval, authorization, consent or order of of, or registration or filing with any federal, state, state or local or foreign governmental or regulatory commission, board, body, authority or agency is required in connection with for the Company’s or Operating Partnership’s execution, delivery and performance of this Agreement by and the Company Prospectus or the Operating Partnership, their consummation of the transactions contemplated herein, and including the Company’s sale and delivery of the Placement Shares, other than (A) such as have been obtained, or will have been obtained at before the relevant Settlement First Closing Date or the applicable Option Closing Date, as the case may be, under the Securities Act and the Securities Exchange Act of 1934, as amended (the “Exchange Act, (B) such approvals as have been obtained in connection with the approval of the listing of the Placement Shares on the Exchange, (C) such as have been obtained or made under the rules and regulations of the Financial Industry Regulatory Authority (“FINRA”) and (DB) any necessary qualification under the securities or blue sky laws of the various jurisdictions in which the Placement Shares are being offered by the Agent;Underwriters.
i. (m) each of the Company and the Subsidiaries has all necessary licenses, permits, authorizations, consents and approvals approvals, possess valid and current certificates, has made all necessary filings required under any Lawfederal, state or local law, regulation or rule, and has obtained all necessary authorizations, consents and approvals from other persons, required in order to conduct their respective businesses as described in the Registration Statement and the Prospectus, except to the extent that any failure to have any such licenses, permits, authorizations, consents or approvals, to make any such filings or to obtain any such authorizations, consents or approvals would could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; neither the Company nor any of the Subsidiaries is required by any applicable law to obtain accreditation or certification from any governmental agency or authority in order to provide the products and services which it currently provides or which it proposes to provide as set forth in the Registration Statement and the Prospectus; neither the Company, nor any of the Subsidiaries is in violation of, in default under, or has received any notice regarding a possible violation, default or revocation of any such certificate, license, permit, authorization, consent or approval or any federal, state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Company or any of the Subsidiaries the effect of which which, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Change; and no such license, permit, authorization, consent or approval contains a materially burdensome restriction that is not adequately disclosed in each of the Registration Statement and the Prospectus;.
j. the Company meets the requirements for use of Form S-3 under the Securities Act; (n) the Registration Statement has become been declared effective under the Securities Act by the Commission and no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the CompanyCompany and the Operating Partnership, are contemplated or threatened by the Commission; , and the Company has complied has, to the Commission’s satisfaction knowledge of the Company and the Operating Partnership, complied with any request on the part of the Commission for additional or supplemental information;.
k. (o) the Registration Statement as of each effective date (including each deemed effective date with respect to the Agent pursuant to Rule 430B or otherwise under the Securities Act) and as of the date hereof, complied or will complycomplies, and the Prospectus and any further amendments or supplements to the Registration Statement or the Prospectus at the time they were filed with the Commission, were, or thereto will, when they have become effective or are filed with the Commission, as the case may be, comply, in all material respects with the requirements of the Securities Act, including Rule 415Act and the Securities Act Regulations; the documents incorporated by reference in the Registration Statement and the Prospectus, when they became effective or at the time they were or hereafter are filed with the Commission, complied and will comply in all material respects with the requirements of the Exchange Act;
l. the Registration Statement, as of each effective date (including each deemed effective date with respect to the Agent pursuant to Rule 430B or otherwise under the Securities Act), and as of the date hereof, and at each Settlement Date, did not, and does not or any amendment thereto will not not, in each case as of the applicable effective date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and the Prospectus or any amendment or supplement thereto will not, as of its issue date, as of the applicable filing date, as of date and on the date hereof First Closing Date and at on each Settlement DateOption Closing Date (if any), contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no warranty or representation with respect to any statement contained in or omitted from the Registration Statement or the Prospectus in reliance upon and in conformity with the information concerning the Agent and furnished in writing by or on behalf of the Agent to the Company expressly for use therein; the documents incorporated by reference in the Registration Statement and the Prospectus, at the time the Registration Statement became effective or when such documents incorporated by reference were filed with the Commission, as the case may be, when read together with the other information in the Registration Statement or the Prospectus, as the case may be, did not and will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
m. as of the issue date or date of first use and at all subsequent times through each Settlement Date, each Issuer Free Writing Prospectus did not, and at the time of each sale of Placement Shares and at the Settlement date, each such Issuer Free Writing Prospectus will not, contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
n. each Issuer Free Writing Prospectus, if any, as of its issue date and at all subsequent times through the completion of the public offer and sale of the Placement Shares did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein, and any other prospectus deemed to be a part thereof that has not been superseded or modified;
o. the Company is eligible to use Free Writing Prospectuses in connection with this offering pursuant to Rules 164 and 433 under the Securities Act; any Free Writing Prospectus that the Company is required to file pursuant to Rule 433(d) has been, or will be, filed with the Commission in accordance with the requirements of the Securities Act; and each Free Writing Prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d) or that was prepared by or on behalf of or used by the Company complies or will comply in all material respects with the requirements of the Securities Act;
p. except for any Issuer Free Writing Prospectuses, the Company has not prepared, used or referred to, and will not, without the prior consent of the Agent, prepare, use or refer to, any Free Writing Prospectus;
q. the Prospectus and any Issuer Free Writing Prospectuses (to the extent any such Issuer Free Writing Prospectus was required to be filed with the Commission) delivered to the Agent for use in connection with the public offering of the Placement Shares contemplated herein have been and will be identical to the versions of such documents transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T under the Securities Act;
r. the Company filed the Registration Statement with the Commission before using any Issuer Free Writing Prospectus;
s. there are no actions, suits, proceedings, inquiries or investigations pending or, to the knowledge of the Company or the Operating Partnership, threatened against the Company or any Subsidiary or any of their respective officers and directors or to which the properties, assets or rights of any such entity are subject, at law or in equity, before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority, arbitral panel or agency which could result in a judgment, decree, award or order having a Material Adverse Effect;
t. the consolidated financial statements, including the notes thereto, included in each of the Registration Statement and the Prospectus present fairly the consolidated financial position of the Company and its subsidiaries as of the dates indicated and their consolidated results of operations and changes in financial position anProspect
Appears in 1 contract
Sources: Underwriting Agreement (American Financial Realty Trust)
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, represent and warrant to, and agree with to the Agent as of the date of this Agreement, as of each Representation Date (as defined below), as of the time of each sale of Placement Shares pursuant to this Agreement and as of each Settlement Date, unless such representation, warranty or agreement specifies a different date or timeUnderwriters that:
a. (a) the Company has an authorized capitalization of 200 million shares of common stock, par value $.01 per share, and 50 million shares of preferred stock, par value $.01 per share (the authorized and outstanding capitalization as set forth in the Registration Statement and the Prospectus“Preferred Stock”); the outstanding shares of capital stock or, as applicable partnership or membership interests, of the Company and each subsidiary of the Company, including the Operating Partnership and its subsidiaries (each, a “Subsidiary” and collectively, the “Subsidiaries”), have been duly and validly authorized and issued and are fully paid and non-assessable. All of the outstanding and, with respect to shares of capital stock, partnership membership interests and membership limited partnership interests, as the case may be, of the subsidiaries of the Company identified on Schedule 4 hereto (each, a “Subsidiary”) have been duly authorized and are validly issued, fully paid and non-assessable securities thereof (except to the extent such non-assessability may be affected by Section 17-607 of the Delaware Revised Uniform Limited Partnership Act or Section 18-607 of the Delaware Limited Liability Company Act), and, except as disclosed in Exhibit A to the ProspectusAgreement of Limited Partnership of the Operating Partnership (the “Partnership Agreement”), all of the outstanding shares of capital stock, stock or partnership interest or membership interests, as the case may be, interests of the Subsidiaries are directly or indirectly owned of record and beneficially by the Company; , free and clear of any pledge, lien, encumbrance, security interest or other claim, except for security interests in favor of lenders created pursuant to or in connection with loan documents disclosed in the Prospectus, and, except as disclosed in the Prospectus and pursuant to registration rights agreements entered into in connection with acquisitions disclosed in the Prospectus, there are no outstanding (i) securities or obligations of the Company or any of the Subsidiaries convertible into or exchangeable or redeemable for any capital stock or other equity interests of the Company or any such Subsidiary, (ii) warrants, rights or options to subscribe for or purchase from the Company or any such Subsidiary any such capital stock or other equity interests or any such convertible or exchangeable securities or obligations, or (iii) obligations of the Company or any such Subsidiary to issue any shares of capital stockstock or other equity interests, any such convertible or exchangeable or redeemable securities or obligation, or any such warrants, rights or options; all issued and outstanding units of partnership interest in the Operating Partnership (“Units”) owned by the Company are owned free and clear of any perfected security interest or any other security interests, claims, liens or encumbrances;
b. (b) each of the Company and each of the Subsidiaries (all of which Subsidiaries are named in Schedule II hereto) has been duly incorporated, formed incorporated or organized and is validly existing as a corporation, general or limited partnership or limited liability company company, as applicable, in good standing under the laws of its respective jurisdiction of incorporation, formation incorporation or organization with full corporate or other power and authority to own its respective properties and to conduct its respective businesses as described in each of the Registration Statement and the Prospectus, Prospectus and, in the case of each of the Company and the Operating Partnership, to execute and deliver this Agreement and to consummate the transactions contemplated herein and to perform its obligations under the Amended and Restated Management Agreement, dated October 27, 2015, by and among the Company, the Operating Partnership and the Manager (the “Management Agreement”)herein;
c. (c) each of the Company and each of the Subsidiaries is duly qualified or licensed and is in good standing in each jurisdiction in which it conducts the nature or conduct of its businesses business requires such qualification or in which it owns or leases real property or otherwise maintains an office license and in which the failure, individually or in the aggregate, to be so qualified or licensed would could reasonably be expected to have a material adverse effect on the assets, business, operations, earnings, prospects, properties or condition (financial or otherwise) of the Company and the Subsidiaries taken as a whole, whole (any such effect or change, where the context so requires, is hereinafter called a “Material Adverse Effect” or “Material Adverse Change”); except as disclosed in the Prospectus, no Subsidiary is prohibited or restricted, directly or indirectly, from paying dividends to the Company, or from making any other distribution with respect to such Subsidiary’s capital stock or other equity interests or from repaying to the Company or any other Subsidiary any amounts which that may from time to time become due under any loans or advances to such Subsidiary from the Company or such other Subsidiary, or from transferring any such Subsidiary’s property or assets to the Company or to any other Subsidiary; other than as disclosed in the Prospectus, the Company and the Operating Partnership do does not own, directly or indirectly, any capital stock or other equity securities of any other corporation or any ownership interest in any partnership, joint venture or other association;
d. (d) the Partnership Agreement has been duly and validly authorized, executed and delivered by or on behalf of the partners of the Operating Partnership and constitutes a valid and binding agreement of the parties thereto, enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally or by general principles of equity;
(i) Ashford OP Limited Partner, LLC (the “Limited Partner”) is a holder of Units representing an ownership interest in the Operating Partnership in the amount described in the Prospectus, (ii) Ashford OP General Partner, LLC (the “General Partner”) is the holder of the sole general partner interest in the Operating Partnership, and (iii) the Company owns a 100% membership interest in the General Partner and in the Limited Partner, in each case free and clear of any pledge, lien, encumbrance, security interest or other claim;
(f) the Company and the Subsidiaries are in compliance in all material respects with all applicable federal, state, local or foreign laws, regulations, rules, regulationsdecrees, judgments and orders, decrees and judgments, including those relating to transactions with affiliates, except where any failures to be in compliance could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
e. (g) neither the Company nor any Subsidiary is in breach of or in default under (nor has any event occurred which with notice, lapse of time, or both would constitute a breach of, or default under), (i) its respective charterorganizational documents, bylaws, agreement of limited partnership, operating agreement or other similar organizational documents (the “Organizational Documents”), (ii) in the performance or observance of any obligation, agreement, covenant or condition contained in any license, indenture, mortgage, deed of trust, loan or credit agreement or other agreement or instrument to which the Company or any Subsidiary is a party or by which any of them or their respective properties is bound, or (iii) any federal, state, local or foreign law, regulation or rule or any decree, judgment, permit or order (each, a “Law”) applicable to the Company or any Subsidiary, except, in the case of clauses (ii) and (iii) above, except for such breaches or defaults which would notthat, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect;
f. (h) the execution, delivery and performance of this Agreement, Agreement and consummation of the transactions contemplated herein will not (A) conflict with, or result in any breach of, or constitute a default under (nor constitute any event which with notice, lapse of time, or both would constitute a breach of, or default under), (i) any provision of the Organizational Documents organizational documents of the Company or any Subsidiary, or (ii) any provision of any license, indenture, mortgage, deed of trust, loan or credit agreement or other agreement or instrument to which the Company or any Subsidiary is a party or by which any of them or their respective assets or properties may be bound or affected, or under any Law federal, state, local or foreign law, regulation or rule or any decree, judgment or order applicable to the Company or any Subsidiary, except in the case of this clause (ii) for such breaches or defaults which would notthat, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect; or (B) result in the creation or imposition of any lien, charge, claim or encumbrance upon any property or asset of the Company or any Subsidiary;
g. (i) this Agreement and the Management Agreement have has been duly authorized, executed and delivered by the Company and the Operating Partnership and each is a legal, valid and binding agreement of the Company and the Operating Partnership enforceable in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, and by general equitable principles, and except to the extent that the indemnification and contribution provisions of Section 12 9 hereof may be limited by federal or state securities laws and public policy considerations in respect thereof;
h. (j) no approval, authorization, consent or order of or filing with any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency or any other third party is required in connection with the Company’s or the Operating Partnership’s execution, delivery and performance of this Agreement by the Company or the Operating PartnershipAgreement, their consummation of the transactions contemplated herein, and herein or the Company’s sale and delivery of the Placement Shares, other than (Ai) such as have been obtained, or will have been obtained at the Closing Time or the relevant Settlement DateDate of Delivery, as the case may be, under the Securities Act and the Securities Exchange Act of 1934 (the “Exchange Act”), (Bii) such approvals as have been obtained in connection with the approval of the listing of the Placement Shares on the New York Stock Exchange, (C) such as have been obtained or made under the rules and regulations of the Financial Industry Regulatory Authority (“FINRA”) and (Diii) any necessary qualification under the securities or blue sky laws of the various state jurisdictions in which the Placement Shares are being offered by the AgentUnderwriters, and (iv) such approvals, authorizations, consents or orders or filings, the absence of which could not reasonably be expected to have a Material Adverse Effect, individually or in the aggregate;
i. (k) each of the Company and the Subsidiaries has all necessary licenses, authorizations, consents and approvals and has made all necessary filings required under any Lawfederal, state, local or foreign law, regulation or rule, and has obtained all necessary authorizations, consents and approvals from other persons, required in order to conduct their respective businesses as described in the Registration Statement and the Prospectus, except to the extent that any failure to have any such licenses, authorizations, consents or approvals, to make any such filings or to obtain any such authorizations, consents or approvals would could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; neither the Company nor any of the Subsidiaries is required by any applicable law to obtain accreditation or certification from any governmental agency or authority in order to provide the products and services which it currently provides or which it proposes to provide as set forth in the Registration Statement and the Prospectus; neither the Company, nor any of the Subsidiaries is in violation of, in default under, or has received any notice regarding a possible violation, default or revocation of any such license, authorization, consent or approval or any federal, state, local or foreign law, regulation or rule or any decree, judgment or order or judgment applicable to the Company or any of the Subsidiaries Subsidiaries, the effect of which could reasonably be expected to result in a Material Adverse ChangeEffect; and no such license, authorization, consent or approval contains a materially burdensome restriction that is not adequately disclosed in each of the Registration Statement and the Prospectus; neither the Company nor any of the Subsidiaries is required by any applicable law to obtain accreditation or certification from any governmental agency or authority in order to provide the products and services that it currently provides or that it proposes to provide as set forth in the Prospectus except to the extent that any failure to have such accreditation or certification could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
j. (l) the Company meets and the transactions contemplated by this Agreement meet the requirements for the use of Form S-3 under the Securities Act; each of the Registration Statement and any Rule 462(b) Registration Statement has become effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement or any Rule 462(b) Registration Statement has been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Company, are contemplated or threatened by the Commission; and , and, to the knowledge of the Company, the Company has complied to the Commission’s satisfaction with any request on the part of the Commission for additional information;
k. (m) any Preliminary Prospectus and the Registration Statement as of each effective date (including each deemed effective date with respect to the Agent pursuant to Rule 430B or otherwise under the Securities Act) and as of the date hereof, complied or will comply, and the Prospectus and any further amendments or supplements to the Registration Statement or the Prospectus at the time they were filed with the Commission, were, or thereto will, when they have become effective or are filed with the Commission, as the case may be, comply, in all material respects with the requirements of the Securities Act, including Rule 415Act and the Securities Act Regulations; the documents incorporated by reference in the Registration Statement and the Prospectus, when they became effective or at the time they were or hereafter are filed with the Commission, complied and will comply in all material respects with the requirements of the Exchange Act;
l. the Registration Statement, as of each effective date (including each deemed effective date with respect to the Agent pursuant to Rule 430B or otherwise under the Securities Act), and as of the date hereof, and at each Settlement Date, did not, and does not or any amendment thereto will not not, in each case as of the applicable effective date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading; and each Preliminary Prospectus does not, and the Prospectus or any amendment or supplement thereto will not, as of its issue date, as of the applicable filing date, as of the date hereof and at the Closing Time and on each Settlement DateDate of Delivery (if any), contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no warranty or representation with respect to any statement contained in or omitted from the Registration Statement Statement, any Preliminary Prospectus or the Prospectus Prospectus, in reliance upon and in conformity with the information concerning the Agent Underwriters and furnished in writing by or on behalf of the Agent Underwriters through the Representatives to the Company expressly for use therein; in the documents Registration Statement, any Preliminary Prospectus or the Prospectus (that information being limited to that described in the penultimate sentence of the first paragraph of Section 9(b) hereof);
(n) each document incorporated by reference in the Prospectus or the Registration Statement (the “Incorporated Documents”), when it became effective or was filed with the Commission, as the case may be, conformed in all material respects to the requirements of the Securities Act or the Exchange Act, as applicable, and the Securities Act Regulations and the Exchange Act Regulations, and none of such documents contained or will contain an untrue statement of a material fact or omitted or will omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and, when read together with the other information in the Prospectus, at the time the Registration Statement became effective and at the Closing Date, each such incorporated document did not or when such documents incorporated by reference were filed with the Commissionwill not, as the case may be, when read together with the other information in the Registration Statement or the Prospectus, as the case may be, did not and will not include contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
m. as of (o) any Preliminary Prospectus was and the issue date or date of first Prospectus delivered to the Underwriters for use and at all subsequent times through each Settlement Date, each Issuer Free Writing Prospectus did not, and at the time of each sale of Placement Shares and at the Settlement date, each such Issuer Free Writing Prospectus will not, contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
n. each Issuer Free Writing Prospectus, if any, as of its issue date and at all subsequent times through the completion of the public offer and sale of the Placement Shares did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein, and any other prospectus deemed to be a part thereof that has not been superseded or modified;
o. the Company is eligible to use Free Writing Prospectuses in connection with this offering pursuant to Rules 164 and 433 under the Securities Act; any Free Writing Prospectus that the Company is required to file pursuant to Rule 433(d) has been, or will be, filed with the Commission in accordance with the requirements of the Securities Act; and each Free Writing Prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d) or that was prepared by or on behalf of or used by the Company complies or will comply in all material respects with the requirements of the Securities Act;
p. except for any Issuer Free Writing Prospectuses, the Company has not prepared, used or referred to, and will not, without the prior consent of the Agent, prepare, use or refer to, any Free Writing Prospectus;
q. the Prospectus and any Issuer Free Writing Prospectuses (to the extent any such Issuer Free Writing Prospectus was required to be filed with the Commission) delivered to the Agent for use in connection with the public offering of the Placement Shares contemplated herein have been and will be identical to the versions respective version of such documents any Preliminary Prospectus or Prospectus created to be transmitted to the Commission under the Securities Act for filing via the Electronic Data Gathering Analysis and Retrieval System (“E▇▇▇▇▇”), except to the extent permitted by Regulation S-T under the Securities ActT;
r. the Company filed the Registration Statement with the Commission before using any Issuer Free Writing Prospectus;
s. (p) there are no actions, suits, proceedings, inquiries or investigations pending or, to the knowledge of the Company or the Operating PartnershipCompany, threatened against the Company or any Subsidiary or any of their respective officers and directors or to which the properties, assets or rights of any such entity are subject, at law or in equity, before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority, arbitral panel or agency which agency, where in any such case (A) there is a reasonable possibility that such action, suit or proceeding will be determined adversely to the Company or such Subsidiary and (B) if so determined adversely, could reasonably be expected to result in a judgment, decree, award or order having a Material Adverse Effect;
t. (q) the consolidated financial statements, including the related supporting schedules and notes thereto, included in each of (or incorporated by reference into) the Registration Statement and the Prospectus present fairly the consolidated financial position of the Company and its subsidiaries entities to which such financial statements relate (the “Covered Entities”) as of the dates indicated and their the consolidated results of operations and changes in financial position anand ca
Appears in 1 contract
Sources: Underwriting Agreement (Ashford Hospitality Trust Inc)
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, represent and warrant toto the Underwriters, and agree with the Agent as of the date of this Agreement, as of each Representation Date (as defined below)hereof, as of the time of each sale of Placement Shares pursuant to this Agreement Closing Time and as of each Settlement Dateany Date of Delivery, unless such representation, warranty or agreement specifies a different date or timethat:
a. (i) the Company has the an authorized and outstanding capitalization as set forth in both the Registration Statement Prospectus and the ProspectusDisclosure Package; the outstanding shares of capital stock of the Company and NRFC Sub-REIT Corp., a Maryland corporation and a subsidiary of the Operating Partnership (the “Private REIT”), have been duly and validly authorized and issued and are fully paid and non-assessable. All nonassessable;
(ii) the outstanding partnership interests of the outstanding shares of capital stock, partnership interests and membership interests, as the case may be, of the subsidiaries of the Company identified on Schedule 4 hereto (each, a “Subsidiary”) Operating Partnership have been duly and validly authorized and are validly issued, fully paid and non-assessable securities thereof and, except as disclosed in the Prospectus, ; all of the outstanding shares of capital stock, partnership interest or membership interests, as the case may be, stock of the Subsidiaries Private REIT are directly or and indirectly owned of record and beneficially by the Operating Partnership and the Company; , respectively;
(iii) except as disclosed in both the ProspectusProspectus and the Disclosure Package, there are no outstanding (iA) securities or obligations of the Company or any the subsidiaries of the Subsidiaries Company required to be set forth in Exhibit 21.1 to the Company’s Form 10-K for the fiscal year ended December 31, 2006 (the “Subsidiaries”) convertible into or exchangeable for any capital stock of or partnership interests, membership interests or other equity interests, as the case may be, in the Company or any such Subsidiary, (iiB) warrants, rights or options to subscribe for or purchase from the Company or any such Subsidiary any such capital stock or any such convertible or exchangeable securities or obligations, or (iiiC) obligations of the Company or any such Subsidiary to issue any shares of capital stocksecurities or obligations, any such convertible or exchangeable securities or obligationobligations, or any such warrants, rights or options; all issued options the existence of which, in each case of (A), (B) and outstanding units of partnership interest (C), is required to be disclosed in the Operating Partnership (“Units”) owned by Prospectus and the Company Disclosure Package and are owned free and clear of any perfected security interest or any other security interests, claims, liens or encumbrancesnot so disclosed;
b. (iv) each of the Company and each of the Subsidiaries has been duly incorporated, formed incorporated or organized and is validly existing as a corporation, general or limited partnership or limited liability company company, as the case may be, except to the extent, in the case of the Subsidiaries, that the failure to be so organized would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect and is in good standing under the laws of its respective jurisdiction of incorporation, formation incorporation or organization with full power except to the extent, that the failure to be so qualified or in good standing would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
(v) each of the Company and the Subsidiaries have the corporate, partnership or limited liability company power, as the case may be, and authority to own its their respective properties and to conduct its their respective businesses businesses, each as described in each of the Registration Statement Statement, the Prospectus and the ProspectusDisclosure Package except to the extent that the failure to have such power or authority would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, and, in the case of the Company and the Operating Partnership, to execute and deliver this Agreement and to consummate the transactions contemplated herein and to perform its obligations under the Amended and Restated Management described in this Agreement, dated October 27, 2015, by and among the Company, the Operating Partnership and the Manager (the “Management Agreement”);
c. (vi) the Company and each of the Subsidiaries is are duly qualified or licensed and in good standing in each jurisdiction in which it conducts its businesses where such qualification or in which it owns or leases real property or otherwise maintains an office and in which license is required except where the failure, individually or in the aggregate, to be so qualified or licensed would not reasonably be expected to have a material adverse effect on the assets, business, operations, earnings, prospects, properties or condition (financial or otherwise) of the Company and the Subsidiaries taken as a whole, (any such effect or change, where the context so requires, is hereinafter called a “Material Adverse Effect” or “Material Adverse Change”); ;
(vii) except as disclosed in both the ProspectusProspectus and the Disclosure Package, no Subsidiary the Operating Partnership is neither contractually prohibited or nor contractually restricted, directly or indirectly, from paying dividends to the Company, or from making any other distribution with respect to such Subsidiarythe Operating Partnership’s partnership interests or from repaying to the Company or another subsidiary of the Company any amounts which may from time to time become due under any loans or advances to the Operating Partnership from the Company or another subsidiary of the Company, or from transferring the Operating Partnership’s property or assets to the Company or another subsidiary of the Company;
(viii) except as disclosed in both the Prospectus and the Disclosure Package, the Private REIT is neither contractually prohibited nor contractually restricted, directly or indirectly, from paying dividends to the Operating Partnership, or from making any other distribution with respect to the Private REIT’s shares of capital stock or from repaying to the Company, the Operating Partnership or another subsidiary of the Company any amounts which may from time to time become due under any loans or advances to the Private REIT from the Company, the Operating Partnership or another subsidiary of the Company, or from transferring the Private REIT’s property or assets to the Company, the Operating Partnership or another subsidiary of the Company;
(ix) except as disclosed in both the Prospectus and the Disclosure Package, no Subsidiary (other than the Operating Partnership and the Private REIT, which are covered above) is contractually prohibited or restricted, directly or indirectly, from paying dividends to the Operating Partnership or the Private REIT, to the extent such Subsidiary is a direct subsidiary of the Operating Partnership or the Private REIT, or from making any other distribution with respect to the outstanding membership interests of such Subsidiary or from repaying to the Company, the Operating Partnership or another subsidiary of the Company any amounts which may from time to time become due under any loans or advances to such Subsidiary from the Company Company, the Operating Partnership or such other Subsidiaryanother subsidiary of the Company, or from transferring any such Subsidiary’s property or assets to the Company, the Operating Partnership or another subsidiary of the Company except for any such prohibitions and restrictions that would not individually or in the aggregate reasonably be expected to have Material Adverse Effect or to the extent that any other Subsidiary; other than such restriction would currently materially limit the Company’s ability to pay dividends or that would be reasonably likely to materially limit the future payment of dividends on Preferred Stock;
(x) the Agreement of Limited Partnership of the Operating Partnership, dated as of October 19, 2004 (the “Partnership Agreement”), has been duly and validly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally or by general principles of equity, and except to the extent that the indemnification and contribution provisions of Section 9 hereof may be limited by federal or state securities laws and public policy considerations in respect thereof;
(xi) the Company is the sole general partner of the Operating Partnership and the holder of units of partnership interest in the Operating Partnership (“OP Units”) representing an ownership interest in the Operating Partnership in the percentage set forth in both the Prospectus and the Disclosure Package, and, except as disclosed in the Prospectus, the Company Prospectus and the Operating Partnership do not ownDisclosure Package, directly or indirectlyfree and clear of any pledge, any capital stock lien, encumbrance, security interest or other equity securities of claim except for any other corporation or any ownership pledge, lien, encumbrance, security interest in any partnership, joint venture or other associationclaim that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
d. the Company and the Subsidiaries are in compliance in all material respects with all applicable laws, rules, regulations, orders, decrees and judgments, including those relating to transactions with affiliates;
e. (xii) neither the Company nor any Subsidiary is in breach of or in default under (nor has any event occurred which with notice, lapse of time, or both would constitute a breach of, or default under), (i) its respective charterorganizational documents, bylaws, agreement of limited partnership, operating agreement or other similar organizational documents (the “Organizational Documents”), (ii) in the performance or observance of any obligation, agreement, covenant or condition contained in any license, indenture, mortgage, deed of trust, loan or credit agreement or other agreement or instrument to which the Company or any Subsidiary is a party or by which any of them or their respective properties or assets is bound, or (iii) any federal, state, local or foreign law, regulation or rule or any decree, judgment, permit or order (each, a “Law”) applicable to the Company or any Subsidiary, except, in the case of clauses (ii) and (iii) above, except for such breaches or defaults which would not, individually or in the aggregate, aggregate could not reasonably be expected to have a Material Adverse Effect;
f. (xiii) the execution, delivery and performance of this Agreement, Agreement and consummation of the transactions contemplated herein will not (A) conflict with, or result in any breach of, or constitute a default under (nor constitute any event which with notice, lapse of time, or both would constitute a breach of, or default under), ): (i1) any provision of the Organizational Documents organizational documents of the Company or any Subsidiary, or (ii2) any provision of any license, indenture, mortgage, deed of trust, loan or credit agreement or other agreement or instrument to which the Company or any Subsidiary is a party or by which any of them or their respective assets or properties may be bound or affected, or under any Law federal, state, local or foreign law, regulation or rule or any decree, judgment or order applicable to the Company or any Subsidiary, except in the case of this clause (ii2) for such breaches or defaults which would not, individually or in the aggregate, aggregate not reasonably be expected to have a Material Adverse EffectEffect and which would not reasonably be expected to have a material adverse effect on the Company and the Operating Partnership’s ability to perform their agreed upon obligations under the Agreement; or (B) result in the creation or imposition of any lien, charge, claim or encumbrance upon any property or asset of the Company or any Subsidiary, except for such liens, charges, claims or encumbrances which would individually or in aggregate not reasonably be expected to have a Material Adverse Effect;
g. (xiv) this Agreement and the Management Agreement have has been duly authorized, executed and delivered by each of the Company and the Operating Partnership and each is a legal, valid and binding agreement of each of the Company and the Operating Partnership enforceable against the Company and the Operating Partnership in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, and by general equitable principles, and except to the extent that the indemnification and contribution provisions of Section 12 9 hereof may be limited by federal or state securities laws and public policy considerations in respect thereof;
h. (xv) no approval, authorization, consent or order of or filing with any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency is required in connection with the Company’s or the Operating Partnership’s execution, delivery and performance of this Agreement Agreement, the consummation of the transactions contemplated herein by the Company or the Operating Partnership, their consummation of the transactions contemplated herein, and including the Company’s issuance, sale and delivery of the Placement Shares, other than (A) such as have been obtained, or will have been obtained at the Closing Time or the relevant Settlement DateDate of Delivery, as the case may be, under the Securities Act and the Exchange Act, or (B) such approvals as have been obtained in connection with the approval of the listing of the Placement Shares on the Exchange, (C) such as have been obtained or made under the rules and regulations of the Financial Industry Regulatory Authority (“FINRA”) and (D) any necessary qualification under the securities or “blue sky sky” laws of the various jurisdictions in which the Placement Shares are being offered by the AgentUnderwriters, or (C), any such approvals, authorizations, consents, orders, or filings that if not obtained or made, would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect and which would not reasonably be expected to have a material adverse effect on the Company and the Operating Partnership’s ability to perform their agreed upon obligations under the Agreement;
i. (xvi) each of the Company and the Subsidiaries has all necessary licenses, authorizations, consents and approvals and has made all necessary filings required under any Lawfederal, state, local or foreign law, regulation or rule, and has obtained all necessary authorizations, consents and approvals from other persons, required in order to conduct their respective businesses as described in both the Registration Statement Prospectus and the ProspectusDisclosure Package, except to the extent that any failure to have any such licenses, authorizations, consents or approvals, to make any such filings or to obtain any such authorizations, consents or approvals would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; neither the Company nor any of the Subsidiaries is required by any applicable law to obtain accreditation or certification from any governmental agency or authority in order to provide the products and services which it currently provides or which it proposes to provide as set forth in the Registration Statement and the Prospectus; neither the Company, nor any of the Subsidiaries is in violation of, in default under, or has received any notice regarding a possible violation, default or revocation of any such license, authorization, consent or approval or any federal, state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Company or any of the Subsidiaries the effect of which could would reasonably be expected to result in a Material Adverse Change; and no such license, authorization, consent or approval contains a materially burdensome restriction that is not adequately disclosed in each of the Registration Statement and the Prospectus;
j. the Company meets the requirements for use of Form S-3 under the Securities Act; (xvii) the Registration Statement has become been declared effective under the Securities Act and by the Commission; the Rule 462(b) Registration Statement, if any, is effective; no stop order suspending the effectiveness or the use of the Registration Statement Statement, including any Rule 462(b) Registration Statement, has been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Company, are contemplated or threatened by the Commission; and the Company has complied to the Commission’s satisfaction with any request on the part of the Commission for additional information;
k. (xviii) the Registration Statement Preliminary Prospectus, as of each effective its date (including each deemed effective date with respect to the Agent pursuant to Rule 430B or otherwise under the Securities Act) and as of the date hereof, complied or complies, the Registration Statement, as of each effective date and as of the date hereof, complied, complies or will complycomply in all material respects, and the Prospectus as of its date and any further amendments or supplements to the Registration Statement Statement, the Preliminary Prospectus or the Prospectus at the time they were filed with the Commission, were, or willwill comply in all material respects, when they become effective or are filed with the Commission, as the case may be, comply, in all material respects with the requirements of the Securities Act, including Rule 415; the documents incorporated by reference in the Registration Statement Act and the Prospectus, when they became effective or at the time they were or hereafter are filed with the Commission, complied and will comply in all material respects with the requirements of the Exchange Act;
l. Securities Act Regulations; the Registration Statement, as of each effective date (including each deemed effective date with respect to the Agent pursuant to Rule 430B or otherwise under the Securities Act), and as of the date hereof, and at each Settlement Datedate, did not, and does not or will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; the Preliminary Prospectus, as of its date, did not contain and the Prospectus or any amendment or supplement thereto will notthereto, as of its issue datetheir respective dates, as of the applicable filing date, as of the date hereof hereof, the Closing Time and at on each Settlement DateDate of Delivery (if any), will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no warranty or representation with respect to any statement contained in or omitted from the Registration Statement Statement, the Preliminary Prospectus or the Prospectus or any amendment or supplement to any of the foregoing in reliance upon and in conformity with the information concerning the Agent Underwriters and furnished in writing by or on behalf of the Agent Underwriters through the Representatives to the Company expressly for use thereintherein (that information being limited to that described in the penultimate sentence of the first paragraph of Section 9(b) hereof);
(xix) for the purposes of this Agreement, the “Applicable Time” is 4:10 p.m. (Eastern Standard Time) on the date of this Agreement; the documents incorporated by reference in Disclosure Package as of the Registration Statement and the Prospectus, at the time the Registration Statement became effective or when such documents incorporated by reference were filed with the Commission, as the case may be, when read together with the other information in the Registration Statement or the Prospectus, as the case may beApplicable Time, did not and will not include an any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
m. as of the issue date or date of first use and at all subsequent times through each Settlement Date, each Issuer Free Writing Prospectus did not, and at the time of each sale of Placement Shares and at the Settlement date, each such Issuer Free Writing Prospectus will not, contain an untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
n. ; and each Issuer Free Writing Prospectus, if any, as of its issue date and at all subsequent times through Prospectus included in the completion of the public offer and sale of the Placement Shares did not, Disclosure Package does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein, and any other prospectus deemed to be a part thereof that has not been superseded or modified;
o. the Company is eligible to use Free Writing Prospectuses in connection with this offering pursuant to Rules 164 and 433 under the Securities Act; any Free Writing Prospectus that the Company is required to file pursuant to Rule 433(d) has been, or will be, filed with the Commission in accordance with the requirements of the Securities Act; and each Free Writing Prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d) or that was prepared by or on behalf of or used by the Company complies or will comply in all material respects with the requirements of the Securities Act;
p. except for any Issuer Free Writing ProspectusesStatement, the Company has not prepared, used Preliminary Prospectus or referred to, and will not, without the prior consent of the Agent, prepare, use or refer to, any Free Writing Prospectus;
q. the Prospectus and any Issuer Free Writing Prospectuses (to the extent any each such Issuer Free Writing Prospectus was required to be filed Prospectus, as supplemented by and taken together with the Commission) delivered to other information comprising the Agent for use in connection with the public offering of the Placement Shares contemplated herein have been and will be identical to the versions of such documents transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T under the Securities Act;
r. the Company filed the Registration Statement with the Commission before using any Issuer Free Writing Prospectus;
s. there are no actions, suits, proceedings, inquiries or investigations pending or, to the knowledge of the Company or the Operating Partnership, threatened against the Company or any Subsidiary or any of their respective officers and directors or to which the properties, assets or rights of any such entity are subject, at law or in equity, before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority, arbitral panel or agency which could result in a judgment, decree, award or order having a Material Adverse Effect;
t. the consolidated financial statements, including the notes thereto, included in each of the Registration Statement and the Prospectus present fairly the consolidated financial position of the Company and its subsidiaries Disclosure Package as of the dates indicated and their consolidated results Applicable Time, did not include any untrue statement of operations and changes a material fact or omit to state any material fact necessary in financial position anorder to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company make
Appears in 1 contract
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, represent and warrant to, and agree with to the Agent Underwriters as of the date of this Agreementhereof, as of each Representation Date (as defined below)the Applicable Time referred to in Section 3(n) hereof, as of the time of each sale of Placement Shares pursuant to this Agreement Closing Time and as of each Settlement Daterespective Date of Delivery referred to in Section 2(a) hereof, unless such representation, warranty or agreement specifies a different date or timethat:
a. (a) the Company has an authorized capitalization of 200 million shares of Common Stock and 50 million shares of preferred stock, par value $.01 per share (the authorized “Preferred Stock”) and an outstanding capitalization as set forth in the Registration Statement General Disclosure Package (as defined in Section 3(n) hereof) and the Prospectus; the outstanding shares of capital stock or partnership or membership interests, of the Company and each subsidiary of the Company, including the Operating Partnership and its subsidiaries (each, a “Subsidiary” and collectively, the “Subsidiaries”), as applicable, have been duly and validly authorized and issued and are fully paid and non-assessable. All of the outstanding and, with respect to shares of capital stock, partnership membership interests and membership limited partnership interests, as the case may be, of the subsidiaries of the Company identified on Schedule 4 hereto (each, a “Subsidiary”) have been duly authorized and are validly issued, fully paid and non-assessable securities thereof (except to the extent such non-assessability may be affected by Section 17-607 of the Delaware Revised Uniform Limited Partnership Act or Section 18-607 of the Delaware Limited Liability Company Act), and, except as disclosed in Exhibit A to the ProspectusAgreement of Limited Partnership of the Operating Partnership (the “Partnership Agreement”), all of the outstanding shares of capital stock, stock or partnership interest or membership interests, as the case may be, interests of the Subsidiaries are directly or indirectly owned of record and beneficially by the Company; , free and clear of any pledge, lien, encumbrance, security interest or other claim, except for security interests in favor of lenders created pursuant to or in connection with loan documents disclosed in the General Disclosure Package and the Prospectus, and, except as disclosed in the ProspectusGeneral Disclosure Package and the Prospectus and pursuant to registration rights agreements entered into in connection with acquisitions, there are no outstanding (i) securities or obligations of the Company or any of the Subsidiaries convertible into or exchangeable or redeemable for any capital stock or other equity interests of the Company or any such Subsidiary, (ii) warrants, rights or options to subscribe for or purchase from the Company or any such Subsidiary any such capital stock or other equity interests or any such convertible or exchangeable securities or obligations, or (iii) obligations of the Company or any such Subsidiary to issue any shares of capital stockstock or other equity interests, any such convertible or exchangeable or redeemable securities or obligation, or any such warrants, rights or options; all issued and outstanding units of partnership interest in the Operating Partnership (“Units”) owned by the Company are owned free and clear of any perfected security interest or any other security interests, claims, liens or encumbrances;
b. (b) each of the Company and the Subsidiaries (all of which Subsidiaries are named in Schedule II hereto, which schedule also identifies each of the Subsidiaries that is a “significant subsidiary” within the meaning of Rule 1-02(w) of Regulation S-X) has been duly incorporated, formed incorporated or organized and is validly existing as a corporation, general or limited partnership or limited liability company company, as applicable, in good standing under the laws of its respective jurisdiction of incorporation, formation incorporation or organization with full corporate or other power and authority to own its respective properties and to conduct its respective businesses as described in each of the Registration Statement General Disclosure Package and the Prospectus, Prospectus and, in the case of each of the Company and the Operating Partnership, to execute and deliver this Agreement and to consummate the transactions contemplated herein and to perform its obligations under the Amended and Restated Management Agreement, dated October 27, 2015, by and among the Company, the Operating Partnership and the Manager (the “Management Agreement”)herein;
c. (c) each of the Company and each of the Subsidiaries is duly qualified or licensed and is in good standing in each jurisdiction in which it conducts the nature or conduct of its businesses business requires such qualification or in which it owns or leases real property or otherwise maintains an office license and in which the failure, individually or in the aggregate, to be so qualified or licensed would could reasonably be expected to have a material adverse effect on the assets, business, operations, earnings, prospects, properties or condition (financial or otherwise) of the Company and the Subsidiaries taken as a whole, whole (any such effect or change, where the context so requires, is hereinafter called a “Material Adverse Effect” or “Material Adverse Change”); except as disclosed in the ProspectusProspectus and the General Disclosure Package, no Subsidiary is prohibited or restricted, directly or indirectly, from paying dividends to the Company, or from making any other distribution with respect to such Subsidiary’s capital stock or other equity interests or from repaying to the Company or any other Subsidiary any amounts which that may from time to time become due under any loans or advances to such Subsidiary from the Company or such other Subsidiary, or from transferring any such Subsidiary’s property or assets to the Company or to any other Subsidiary; other than as disclosed in the ProspectusProspectus and the General Disclosure Package, the Company and the Operating Partnership do does not own, directly or indirectly, any capital stock or other equity securities of any other corporation or any ownership interest in any partnership, joint venture or other association;
d. (d) the Partnership Agreement has been duly and validly authorized, executed and delivered by or on behalf of the partners of the Operating Partnership and constitutes a valid and binding agreement of the parties thereto, enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally or by general principles of equity;
(i) Ashford OP Limited Partner, LLC (the “Limited Partner”) is a holder of Units representing a majority limited partnership ownership interest in the Operating Partnership and such units of preferred limited partnership interest in the Operating Partnership (the “Preferred Units”) as described in the General Disclosure Package and the Prospectus, (ii) Ashford OP General Partner, LLC (the “General Partner”) is the holder of the sole general partner interest in the Operating Partnership, and (iii) the Company owns a 100% membership interest in the General Partner and in the Limited Partner, in each case free and clear of any pledge, lien, encumbrance, security interest or other claim, except for security interests in favor of lenders created pursuant to or in connection with loan documents disclosed in the General Disclosure Package and the Prospectus;
(f) the Company and the Subsidiaries are in compliance in all material respects with all applicable federal, state, local or foreign laws, regulations, rules, regulationsdecrees, judgments and orders, decrees and judgments, including those relating to transactions with affiliates, except where any failures to be in compliance could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
e. (g) neither the Company nor any Subsidiary is in breach of or in default under (nor has any event occurred which with notice, lapse of time, or both would constitute a breach of, or default under), (i) its respective charterorganizational documents, bylaws, agreement of limited partnership, operating agreement or other similar organizational documents (the “Organizational Documents”), (ii) in the performance or observance of any obligation, agreement, covenant or condition contained in any license, indenture, mortgage, deed of trust, loan or credit agreement or other agreement or instrument to which the Company or any Subsidiary is a party or by which any of them or their respective properties is bound, or (iii) any federal, state, local or foreign law, regulation or rule or any decree, judgment, permit or order (each, a “Law”) applicable to the Company or any Subsidiary, except, in the case of clauses (ii) and (iii) above, except for such breaches or defaults which would notthat, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect;
f. (h) the execution, delivery and performance of this Agreement, Agreement and consummation of the transactions contemplated herein will not (Ai) conflict with, or result in any breach of, or constitute a default under (nor constitute any event which with notice, lapse of time, or both would constitute a breach of, or default under), (iA) any provision of the Organizational Documents organizational documents of the Company or any Subsidiary, or (iiB) any provision of any license, indenture, mortgage, deed of trust, loan or credit agreement or other agreement or instrument to which the Company or any Subsidiary is a party or by which any of them or their respective assets or properties may be bound or affected, or under any Law federal, state, local or foreign law, regulation or rule or any decree, judgment or order applicable to the Company or any Subsidiary, except in the case of this clause (iiB) for such breaches or defaults which would notthat, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect; or (Bii) result in the creation or imposition of any lien, charge, claim or encumbrance upon any property or asset of the Company or any Subsidiary;
g. (i) this Agreement and the Management Agreement have has been duly authorized, executed and delivered by the Company and the Operating Partnership and each is a legal, valid and binding agreement of the Company and the Operating Partnership enforceable in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, and by general equitable principles, and except to the extent that the indemnification and contribution provisions of Section 12 9 hereof may be limited by federal or state securities laws and public policy considerations in respect thereof;
h. (j) no approval, authorization, consent or order of or filing with any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency or any other third party is required in connection with the Company’s or the Operating Partnership’s execution, delivery and performance of this Agreement by the Company or the Operating PartnershipAgreement, their consummation of the transactions contemplated herein, and herein or the Company’s sale and delivery of the Placement Shares, other than (Ai) such as have been obtained, or will have been obtained at the Closing Time or the relevant Settlement DateDate of Delivery, as the case may be, under the Securities Act and the Securities Exchange Act of 1934 (the “Exchange Act”) and the rules and regulations thereunder (the “Exchange Act Regulations”), (Bii) such approvals as have been obtained in connection with the approval of the listing of the Placement Shares on the New York Stock Exchange, (C) such as have been obtained or made under the rules and regulations of the Financial Industry Regulatory Authority (“FINRA”) and (Diii) any necessary qualification under the securities or blue sky laws of the various state jurisdictions in which the Placement Shares are being offered by the AgentUnderwriters, and (iv) such approvals, authorizations, consents or orders or filings, the absence of which could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
i. (k) each of the Company and the Subsidiaries has all necessary licenses, authorizations, consents and approvals and has made all necessary filings required under any Lawfederal, state, local or foreign law, regulation or rule, and has obtained all necessary authorizations, consents and approvals from other persons, required in order to conduct their respective businesses as described in the Registration Statement General Disclosure Package and the Prospectus, except to the extent that any failure to have any such licenses, authorizations, consents or approvals, to make any such filings or to obtain any such authorizations, consents or approvals would could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; neither the Company nor any of the Subsidiaries is required by any applicable law to obtain accreditation or certification from any governmental agency or authority in order to provide the products and services which it currently provides or which it proposes to provide as set forth in the Registration Statement and the Prospectus; neither the Company, nor any of the Subsidiaries is in violation of, in default under, or has received any notice regarding a possible violation, default or revocation of any such license, authorization, consent or approval or any federal, state, local or foreign law, regulation or rule or any decree, judgment or order or judgment applicable to the Company or any of the Subsidiaries Subsidiaries, the effect of which could reasonably be expected to result in a Material Adverse ChangeEffect; and no such license, authorization, consent or approval contains a materially burdensome restriction that is not adequately disclosed in each of the Registration Statement General Disclosure Package and the Prospectus; neither the Company nor any of the Subsidiaries is required by any applicable law to obtain accreditation or certification from any governmental agency or authority in order to provide the products and services that it currently provides or that it proposes to provide as set forth in the General Disclosure Package and the Prospectus except to the extent that any failure to have such accreditation or certification could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
j. (l) the Company meets and the transactions contemplated by this Agreement meet the requirements for the use of Form S-3 under the Securities Act; the Registration Statement has become been declared effective under the Securities Act and Act; no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Company, are contemplated or threatened by the Commission; and , and, to the knowledge of the Company, the Company has complied to the Commission’s satisfaction with any request on the part of the Commission for additional information;
k. (m) at the respective times the Registration Statement as of each and any post-effective date (including each amendments thereto became effective, at the deemed effective date with respect to the Agent Underwriters pursuant to Rule 430B or otherwise under 430B(f)(2) of the Securities Act) and as of Act Regulations, at the date hereof, complied or will comply, of this Agreement and the Prospectus and any further amendments or supplements to the Registration Statement or the Prospectus at the time they were filed with Closing Time and at the Commission, were, or will, when they become effective or are filed with the Commissionrelevant Date of Delivery, as the case may be, the Registration Statement and any amendments or supplements thereto complied and will comply, in all material respects with the requirements of the Securities Act, including Rule 415; the documents incorporated by reference in the Registration Statement Act and the Prospectus, when they became effective or at the time they were or hereafter are filed with the Commission, complied Securities Act Regulations and will comply in all material respects with the requirements of the Exchange Act;
l. the Registration Statement, as of each effective date (including each deemed effective date with respect to the Agent pursuant to Rule 430B or otherwise under the Securities Act), did not and as of the date hereof, and at each Settlement Date, did not, and does not or will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and the Prospectus and any further amendments or any amendment or supplement thereto will not, as of its issue date, as of the applicable filing date, as of the date hereof and at each Settlement Date, contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no warranty or representation with respect to any statement contained in or omitted from the Registration Statement or the Prospectus in reliance upon and in conformity with the information concerning the Agent and furnished in writing by or on behalf of the Agent to the Company expressly for use therein; the documents incorporated by reference in the Registration Statement and the Prospectussupplements thereto, at the time the Registration Statement became effective Prospectus or when such documents incorporated by reference were filed with amendment or supplement was issued, at the Commissiondate hereof, at the time of filing pursuant to Rule 424(b) and at the Closing Time and the relevant Date of Delivery, as the case may be, when read together complied and will comply, in all material respects with the other information in requirements of the Registration Statement or Securities Act and the Prospectus, as the case may be, Securities Act Regulations and did not and will not include contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading;
m. ; and each preliminary prospectus and the prospectus filed as part of the issue date Registration Statement as originally filed or date as part of first use any amendment or supplement thereto or filed pursuant to Rule 424 of the Securities Act Regulations, complied when so filed in all material respects with the Securities Act and at all subsequent times through each Settlement Date, each Issuer Free Writing Prospectus did not, and the Securities Act Regulations; at the earliest time after the filing of each sale the Registration Statement that the Company or another offering participant made a bona fide offer (within the meaning of Placement Rule 164(h)(2) of the Securities Act Regulations) of the Shares and at the Settlement datedate hereof, each such the Company was not and is not an “ineligible issuer,” as defined in Rule 405 of the Securities Act Regulations (“Rule 405”);
(n) as of the Applicable Time (as defined below), neither (x) the Issuer General Use Free Writing Prospectus(es) (as defined below) issued at or prior to the Applicable Time, the Statutory Prospectus will not(as defined below) and the information, contain provided in oral or written form, included on Schedule III hereto, all considered together (collectively, the “General Disclosure Package”), nor (y) any individual Issuer Limited Use Free Writing Prospectus, when considered together with the General Disclosure Package, included an untrue statement of a material fact or omit omitted 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;
n. each Issuer Free Writing Prospectus, if any, ; as of its issue date used in this subsection and at all subsequent times through the completion of the public offer and sale of the Placement Shares did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained elsewhere in the Registration Statement or the Prospectus, including any document incorporated by reference therein, and any other prospectus deemed to be a part thereof that has not been superseded or modified;
o. the Company is eligible to use Free Writing Prospectuses in connection with this offering pursuant to Rules 164 and 433 under the Securities Act; any Free Writing Prospectus that the Company is required to file pursuant to Rule 433(d) has been, or will be, filed with the Commission in accordance with the requirements of the Securities Act; and each Free Writing Prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d) or that was prepared by or on behalf of or used by the Company complies or will comply in all material respects with the requirements of the Securities Act;
p. except for any Issuer Free Writing Prospectuses, the Company has not prepared, used or referred to, and will not, without the prior consent of the Agent, prepare, use or refer to, any Free Writing Prospectus;
q. the Prospectus and any Issuer Free Writing Prospectuses (to the extent any such Issuer Free Writing Prospectus was required to be filed with the Commission) delivered to the Agent for use in connection with the public offering of the Placement Shares contemplated herein have been and will be identical to the versions of such documents transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T under the Securities Act;
r. the Company filed the Registration Statement with the Commission before using any Issuer Free Writing Prospectus;
s. there are no actions, suits, proceedings, inquiries or investigations pending or, to the knowledge of the Company or the Operating Partnership, threatened against the Company or any Subsidiary or any of their respective officers and directors or to which the properties, assets or rights of any such entity are subject, at law or in equity, before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority, arbitral panel or agency which could result in a judgment, decree, award or order having a Material Adverse Effect;
t. the consolidated financial statements, including the notes thereto, included in each of the Registration Statement and the Prospectus present fairly the consolidated financial position of the Company and its subsidiaries as of the dates indicated and their consolidated results of operations and changes in financial position anAgreement:
Appears in 1 contract
Sources: Underwriting Agreement (Ashford Hospitality Trust Inc)
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, represent and warrant to, and agree with to the Agent Underwriters as of the date of this Agreementhereof, as of each Representation Date the Initial Sale Time (as defined below), as of the time of each sale of Placement Shares pursuant to this Agreement Closing Time and as of any Option Closing Time (if any), and agrees with each Settlement DateUnderwriter, unless such representation, warranty or agreement specifies a different date or timethat:
a. (a) the Company has the authorized and outstanding capitalization as set forth in the Registration Statement Statement, the Disclosure Package and the ProspectusProspectus under the section captioned “Capitalization”; the outstanding shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessablenonassessable. All of the outstanding shares of capital stock, partnership interests and membership interests, as the case may be, of the subsidiaries of the Company identified on Schedule 4 IV hereto (each, a “Subsidiary”) have been duly authorized and are validly issued, fully paid and non-assessable nonassessable securities thereof and, except as disclosed in both the ProspectusProspectus and the Disclosure Package, all of the outstanding shares of capital stock, partnership interest or membership interests, as the case may be, of the Subsidiaries are directly or indirectly owned of record and beneficially by the Company; except as disclosed in both the ProspectusProspectus and the Disclosure Package, there are no outstanding (i) securities or obligations of the Company or any of the Subsidiaries convertible into or exchangeable for any capital stock of the Company or any such Subsidiary, (ii) warrants, rights or options to subscribe for or purchase from the Company or any such Subsidiary any such capital stock or any such convertible or exchangeable securities or obligations, or (iii) obligations of the Company or any such Subsidiary to issue any shares of capital stock, any such convertible or exchangeable securities or obligation, or any such warrants, rights or options; all issued and outstanding units of partnership interest in the Operating Partnership (“Units”) owned by the Company are owned free and clear of any perfected security interest or any other security interests, claims, liens or encumbrances;
b. (b) each of the Company and each of the Subsidiaries has been duly incorporated, formed or organized and is validly existing as a corporation, general or limited partnership or limited liability company in good standing under the laws of its respective jurisdiction of incorporation, formation or organization with full power and authority to own its respective properties and to conduct its respective businesses as described in each of the Registration Statement Statement, the Prospectus and the ProspectusDisclosure Package, and, in the case of the Company and the Operating Partnership, to execute and deliver this Agreement the Transaction Documents (as defined below), as applicable, and to consummate the transactions contemplated herein therein and to perform its the obligations of the Company and the Operating Partnership, as applicable, under the Amended and Restated Management Agreement, dated October 27, 2015, by and among the Company, the Operating Partnership and the Manager (the “Management Agreement”);
c. (c) the Company and each of the Subsidiaries is duly qualified or licensed and in good standing in each jurisdiction in which it conducts its businesses or in which it owns or leases real property or otherwise maintains an office and in which the failure, individually or in the aggregate, to be so qualified or licensed would have a material adverse effect on the assets, business, operations, earnings, prospects, properties or condition (financial or otherwise) of the Company and the Subsidiaries taken as a whole, (any such effect or change, where the context so requires, is hereinafter called a “Material Adverse Effect” or “Material Adverse Change”); except as disclosed in both the ProspectusProspectus and the Disclosure Package, no Subsidiary is prohibited or restricted, directly or indirectly, from paying dividends to the Company, or from making any other distribution with respect to such Subsidiary’s capital stock or from repaying to the Company or any other Subsidiary any amounts which may from time to time become due under any loans or advances to such Subsidiary from the Company or such other Subsidiary, or from transferring any such Subsidiary’s property or assets to the Company or to any other Subsidiary; other than as disclosed in both the ProspectusProspectus and the Disclosure Package, the Company and the Operating Partnership do not own, directly or indirectly, any capital stock or other equity securities of any other corporation or any ownership interest in any partnership, joint venture or other association;
d. (d) the Company and the Subsidiaries are in compliance in all material respects with all applicable laws, rules, regulations, orders, decrees and judgments, including those relating to transactions with affiliates;
e. (e) neither the Company nor any Subsidiary is in breach of or in default under (nor has any event occurred which with notice, lapse of time, or both would constitute a breach of, or default under), (i) its respective charter, bylaws, agreement of limited partnership, operating agreement or other similar organizational documents (the “Organizational Documents”), (ii) the performance or observance of any obligation, agreement, covenant or condition contained in any license, indenture, mortgage, deed of trust, loan or credit agreement or other agreement or instrument to which the Company or any Subsidiary is a party or by which any of them or their respective properties is bound, or (iii) any federal, state, local or foreign law, regulation or rule or any decree, judgment, permit or order (each, a “Law”) applicable to the Company or any Subsidiary, except, in the case of clauses (ii) and (iii) above, for such breaches or defaults which would not, individually or in the aggregate, have a Material Adverse Effect;
f. (f) the issuance and sale of the Notes, the execution, delivery and performance of this Agreement, the Indenture and the Notes (collectively, the “Transaction Documents”) and the consummation of the transactions contemplated herein and thereunder (including the issuance of the Conversion Shares upon conversion of the Notes) will not (A) conflict with, or result in any breach of, or constitute a default under (nor constitute any event which with notice, lapse of time, or both would constitute a breach of, or default under), (i) any provision of the Organizational Documents of the Company or any Subsidiary, or (ii) any provision of any license, indenture, mortgage, deed of trust, loan or credit agreement or other agreement or instrument to which the Company or any Subsidiary is a party or by which any of them or their respective properties may be bound or affected, or under any Law applicable to the Company or any Subsidiary, except in the case of this clause (ii) for such breaches or defaults which would not, individually or in the aggregate, have a Material Adverse Effect; or (B) result in the creation or imposition of any lien, charge, claim or encumbrance upon any property or asset of the Company or any Subsidiary;
g. (g) this Agreement and the Management Agreement have been duly authorized, executed and delivered by the Company and the Operating Partnership and each is a legal, valid and binding agreement of the Company and the Operating Partnership enforceable in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, and by general equitable principles, and except to the extent that the indemnification and contribution provisions of Section 12 10 hereof may be limited by federal or state securities laws and public policy considerations in respect thereof;
h. (h) the Commission has not issued any order preventing or suspending the use of any Preliminary Prospectus;
(i) no approval, authorization, consent or order of or filing with any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency is required in connection with the execution, delivery and performance of this Agreement the Transaction Documents by the Company or the Operating Partnership, as applicable, their consummation of the transactions contemplated herein, and herein or thereunder (including the Company’s sale and delivery of the Placement SharesNotes and the Company’s issuance of the Conversion Shares upon conversion thereof), other than (A) such as have been obtained, or will have been obtained at the Closing Time or the relevant Settlement DateOption Closing Time, as the case may be, under the Securities Act, the Trust Indenture Act (as defined below) and the Exchange Act, (B) such approvals as have been obtained in connection with the approval of the listing of the Placement Shares Securities on the Exchange, New York Stock Exchange (the “NYSE”) (C) such as have been obtained or made under the rules and regulations of the Financial Industry Regulatory Authority (“FINRA”) and (D) any necessary qualification under the securities or blue sky laws of the various jurisdictions in which the Placement Shares Securities are being offered by the AgentUnderwriters;
i. (j) each of the Company and the Subsidiaries has all necessary licenses, authorizations, consents and approvals and has made all necessary filings required under any Law, and has obtained all necessary authorizations, consents and approvals from other persons, required in order to conduct their respective businesses as described in the Registration Statement Statement, Prospectus and the ProspectusDisclosure Package, except to the extent that any failure to have any such licenses, authorizations, consents or approvals, to make any such filings or to obtain any such authorizations, consents or approvals would not, individually or in the aggregate, have a Material Adverse Effect; neither the Company nor any of the Subsidiaries is required by any applicable law to obtain accreditation or certification from any governmental agency or authority in order to provide the products and services which it currently provides or which it proposes to provide as set forth in the Registration Statement Statement, Prospectus and the ProspectusDisclosure Package; neither the Company, nor any of the Subsidiaries is in violation of, in default under, or has received any notice regarding a possible violation, default or revocation of any such license, authorization, consent or approval or any federal, state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Company or any of the Subsidiaries the effect of which could result in a Material Adverse Change; and no such license, authorization, consent or approval contains a materially burdensome restriction that is not adequately disclosed in each of the Registration Statement Statement, the Prospectus and the ProspectusDisclosure Package;
j. (k) the Company meets the requirements for use of Form S-3 under the Securities Act; each of the Registration Statement and any Rule 462(b) Registration Statement has become effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement or any Rule 462(b) Registration Statement has been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Company, are contemplated or threatened by the Commission; and the Company has complied to the Commission’s satisfaction with any request on the part of the Commission for additional information;
k. (l) the Preliminary Prospectus when filed and the Registration Statement as of each effective date (including each deemed effective date with respect to the Agent Underwriters pursuant to Rule 430B or otherwise under the Securities Act) and as of the date hereof, complied or will comply, and the Prospectus and any further amendments or supplements to the Registration Statement Statement, the Preliminary Prospectus or the Prospectus at the time they were filed with the Commission, were, or will, when they become effective or are filed with the Commission, as the case may be, comply, in all material respects with the requirements of the Securities Act and the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission thereunder (the “Trust Indenture Act, including Rule 415”); the documents incorporated by reference in the Registration Statement and the Prospectus, when they became effective or at the time they were or hereafter are filed with the Commission, complied and will comply in all material respects with the requirements of the Exchange Act;
l. (m) the Registration Statement, as of each effective date (including each deemed effective date with respect to the Agent Underwriters pursuant to Rule 430B or otherwise under the Securities Act), ) and as of the date hereof, hereof and at each Settlement Datethe Closing Time or any Option Closing Time, did not, and does not or will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and the Preliminary Prospectus does not, and the Prospectus or any amendment or supplement thereto will not, as of its issue date, as of the applicable filing date, as of the date hereof and at the Closing Time and on each Settlement DateOption Closing Time (if any), contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no warranty or representation with respect to any statement contained in or omitted from the Registration Statement Statement, the Preliminary Prospectus or the Prospectus in reliance upon and in conformity with the information concerning the Agent Underwriters and furnished in writing by or on behalf of the Agent Underwriters by the Representatives to the Company expressly for use thereintherein (that information being limited to that described in the last sentence of the first paragraph of Section 10(b) hereof); the documents incorporated by reference in the Registration Statement Statement, the Disclosure Package and the Prospectus, at the time the Registration Statement became effective or when such documents incorporated by reference were filed with the Commission, as the case may be, when read together with the other information in the Registration Statement Statement, the Disclosure Package or the Prospectus, as the case may be, did not and will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
m. (n) as of 9:10 a.m. (Eastern time) on April 20, 2017 (the “Initial Sale Time”), the Disclosure Package did not, and at the time of each sale of Notes and at the Closing Time and each Option Closing Time, the Disclosure Package will not, contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; as of the issue date or date of first use and at all subsequent times through each Settlement Datethe Initial Sale Time, each Issuer Free Writing Prospectus did not, and at the time of each sale of Placement Shares Notes and at the Settlement dateClosing Time and each Option Closing Time, each such Issuer Free Writing Prospectus will not, contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no warranty or representation with respect to any statement contained in or omitted from the Disclosure Package in reliance upon and in conformity with the information concerning the Underwriters and furnished in writing by or on behalf of the Underwriters by the Representatives to the Company expressly for use therein (that information being limited to that described in the last sentence of the first paragraph of Section 10(b) hereof);
n. (o) each Issuer Free Writing ProspectusProspectus (including the Final Term Sheet), if any, as of its issue date and at all subsequent times through the completion of the public offer and sale of the Placement Shares Notes did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement Statement, Preliminary Prospectus or the Prospectus, including any document incorporated by reference therein, and any preliminary or other prospectus deemed to be a part thereof that has not been superseded or modified;
o. the Company is eligible to use Free Writing Prospectuses in connection with this offering pursuant to Rules 164 and 433 under the Securities Act; any Free Writing Prospectus that the Company is required to file pursuant to Rule 433(d) has been, or will be, filed with the Commission in accordance with the requirements of the Securities Act; and each Free Writing Prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d) or that was prepared by or on behalf of or used by the Company complies or will comply in all material respects with the requirements of the Securities Act;
p. except for any Issuer Free Writing Prospectuses, the Company has not prepared, used or referred to, and will not, without the prior consent of the Agent, prepare, use or refer to, any Free Writing Prospectus;
q. the Prospectus and any Issuer Free Writing Prospectuses (to the extent any such Issuer Free Writing Prospectus was required to be filed with the Commission) delivered to the Agent for use in connection with the public offering of the Placement Shares contemplated herein have been and will be identical to the versions of such documents transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T under the Securities Act;
r. the Company filed the Registration Statement with the Commission before using any Issuer Free Writing Prospectus;
s. there are no actions, suits, proceedings, inquiries or investigations pending or, to the knowledge of the Company or the Operating Partnership, threatened against the Company or any Subsidiary or any of their respective officers and directors or to which the properties, assets or rights of any such entity are subject, at law or in equity, before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority, arbitral panel or agency which could result in a judgment, decree, award or order having a Material Adverse Effect;
t. the consolidated financial statements, including the notes thereto, included in each of the Registration Statement and the Prospectus present fairly the consolidated financial position of the Company and its subsidiaries as of the dates indicated and their consolidated results of operations and changes in financial position an
Appears in 1 contract
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, represent and warrant toto the Underwriters, and agree with the Agent as of the date of this Agreement, as of each Representation Date (as defined below)hereof, as of the time of each sale of Placement Shares pursuant to this Agreement Closing Time and as of each Settlement Dateany Date of Delivery, unless such representation, warranty or agreement specifies a different date or timethat:
a. (i) the Company has the an authorized and outstanding capitalization as set forth in both the Registration Statement Prospectus and the ProspectusDisclosure Package; the outstanding shares of capital stock of the Company and NRFC Sub-REIT Corp., a Maryland corporation and a subsidiary of the Operating Partnership (the “Private REIT”), have been duly and validly authorized and issued and are fully paid and non-assessable. All nonassessable;
(ii) the outstanding partnership interests of the outstanding shares of capital stock, partnership interests and membership interests, as the case may be, of the subsidiaries of the Company identified on Schedule 4 hereto (each, a “Subsidiary”) Operating Partnership have been duly and validly authorized and are validly issued, fully paid and non-assessable securities thereof and, except as disclosed in the Prospectus, ; all of the outstanding shares of capital stock, partnership interest or membership interests, as the case may be, stock of the Subsidiaries Private REIT are directly or and indirectly owned of record and beneficially by the Operating Partnership and the Company; , respectively;
(iii) except as disclosed in both the ProspectusProspectus and the Disclosure Package, there are no outstanding (iA) securities or obligations of the Company or any the subsidiaries of the Subsidiaries Company required to be set forth in Exhibit 21.1 to the Company’s Form 10-K for the fiscal year ended December 31, 2005 (the “Subsidiaries”) convertible into or exchangeable for any capital stock of or partnership interests, membership interests or other equity interests, as the case may be, in the Company or any such Subsidiary, (iiB) warrants, rights or options to subscribe for or purchase from the Company or any such Subsidiary any such capital stock or any such convertible or exchangeable securities or obligations, or (iiiC) obligations of the Company or any such Subsidiary to issue any shares of capital stocksecurities or obligations, any such convertible or exchangeable securities or obligationobligations, or any such warrants, rights or options; all issued options the existence of which, in each case of (A), (B) and outstanding units of partnership interest (C), is required to be disclosed in the Operating Partnership (“Units”) owned by Prospectus and the Company Disclosure Package and are owned free and clear of any perfected security interest or any other security interests, claims, liens or encumbrancesnot so disclosed;
b. (iv) each of the Company and each of the Subsidiaries has been duly incorporated, formed incorporated or organized and is validly existing as a corporation, general or limited partnership or limited liability company company, as the case may be, except to the extent, in the case of the Subsidiaries, that the failure to be so organized would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect and is in good standing under the laws of its respective jurisdiction of incorporation, formation incorporation or organization with full power except to the extent, that the failure to be so qualified or in good standing would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
(v) each of the Company and the Subsidiaries have the corporate, partnership or limited liability company power, as the case may be, and authority to own its their respective properties and to conduct its their respective businesses businesses, each as described in each of the Registration Statement Statement, the Prospectus and the ProspectusDisclosure Package except to the extent that the failure to have such power or authority would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, and, in the case of the Company and the Operating Partnership, to execute and deliver this Agreement and to consummate the transactions contemplated herein and to perform its obligations under the Amended and Restated Management described in this Agreement, dated October 27, 2015, by and among the Company, the Operating Partnership and the Manager (the “Management Agreement”);
c. (vi) the Company and each of the Subsidiaries is are duly qualified or licensed and in good standing in each jurisdiction in which it conducts its businesses where such qualification or in which it owns or leases real property or otherwise maintains an office and in which license is required except where the failure, individually or in the aggregate, to be so qualified or licensed would not reasonably be expected to have a material adverse effect on the assets, business, operations, earnings, prospects, properties or condition (financial or otherwise) of the Company and the Subsidiaries taken as a whole, (any such effect or change, where the context so requires, is hereinafter called a “Material Adverse Effect” or “Material Adverse Change”); ;
(vii) except as disclosed in both the ProspectusProspectus and the Disclosure Package, no Subsidiary the Operating Partnership is neither contractually prohibited or nor contractually restricted, directly or indirectly, from paying dividends to the Company, or from making any other distribution with respect to such Subsidiarythe Operating Partnership’s partnership interests or from repaying to the Company or another subsidiary of the Company any amounts which may from time to time become due under any loans or advances to the Operating Partnership from the Company or another subsidiary of the Company, or from transferring the Operating Partnership’s property or assets to the Company or another subsidiary of the Company;
(viii) except as disclosed in both the Prospectus and the Disclosure Package, the Private REIT is neither contractually prohibited nor contractually restricted, directly or indirectly, from paying dividends to the Operating Partnership, or from making any other distribution with respect to the Private REIT’s shares of capital stock or from repaying to the Company, the Operating Partnership or another subsidiary of the Company any amounts which may from time to time become due under any loans or advances to the Private REIT from the Company, the Operating Partnership or another subsidiary of the Company, or from transferring the Private REIT’s property or assets to the Company, the Operating Partnership or another subsidiary of the Company;
(ix) except as disclosed in both the Prospectus and the Disclosure Package, no Subsidiary (other than the Operating Partnership and the Private REIT, which are covered above) is contractually prohibited or restricted, directly or indirectly, from paying dividends to the Operating Partnership or the Private REIT, to the extent such Subsidiary is a direct subsidiary of the Operating Partnership or the Private REIT, or from making any other distribution with respect to the outstanding membership interests of such Subsidiary or from repaying to the Company, the Operating Partnership or another subsidiary of the Company any amounts which may from time to time become due under any loans or advances to such Subsidiary from the Company Company, the Operating Partnership or such other Subsidiaryanother subsidiary of the Company, or from transferring any such Subsidiary’s property or assets to the Company, the Operating Partnership or another subsidiary of the Company except for any such prohibitions and restrictions that would not individually or in the aggregate reasonably be expected to have Material Adverse Effect or to the extent that any other Subsidiary; other than such restriction would currently materially limit the Company’s ability to pay dividends or that would be reasonably likely to materially limit the future payment of dividends on Preferred Stock;
(x) the Agreement of Limited Partnership of the Operating Partnership, dated as of October 19, 2004 (the “Partnership Agreement”), has been duly and validly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally or by general principles of equity, and except to the extent that the indemnification and contribution provisions of Section 9 hereof may be limited by federal or state securities laws and public policy considerations in respect thereof;
(xi) the Company is the sole general partner of the Operating Partnership and the holder of units of partnership interest in the Operating Partnership (“OP Units”) representing an ownership interest in the Operating Partnership in the percentage set forth in both the Prospectus and the Disclosure Package, and, except as disclosed in the Prospectus, the Company Prospectus and the Operating Partnership do not ownDisclosure Package, directly or indirectlyfree and clear of any pledge, any capital stock lien, encumbrance, security interest or other equity securities of claim except for any other corporation or any ownership pledge, lien, encumbrance, security interest in any partnership, joint venture or other associationclaim that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
d. the Company and the Subsidiaries are in compliance in all material respects with all applicable laws, rules, regulations, orders, decrees and judgments, including those relating to transactions with affiliates;
e. (xii) neither the Company nor any Subsidiary is in breach of or in default under (nor has any event occurred which with notice, lapse of time, or both would constitute a breach of, or default under), (i) its respective charterorganizational documents, bylaws, agreement of limited partnership, operating agreement or other similar organizational documents (the “Organizational Documents”), (ii) in the performance or observance of any obligation, agreement, covenant or condition contained in any license, indenture, mortgage, deed of trust, loan or credit agreement or other agreement or instrument to which the Company or any Subsidiary is a party or by which any of them or their respective properties or assets is bound, or (iii) any federal, state, local or foreign law, regulation or rule or any decree, judgment, permit or order (each, a “Law”) applicable to the Company or any Subsidiary, except, in the case of clauses (ii) and (iii) above, except for such breaches or defaults which would notwhich, individually or in the aggregate, aggregate could not reasonably be expected to have a Material Adverse Effect;
f. (xiii) the execution, delivery and performance of this Agreement, Agreement and consummation of the transactions contemplated herein will not (A) conflict with, or result in any breach of, or constitute a default under (nor constitute any event which with notice, lapse of time, or both would constitute a breach of, or default under), ): (i1) any provision of the Organizational Documents organizational documents of the Company or any Subsidiary, or (ii2) any provision of any license, indenture, mortgage, deed of trust, loan or credit agreement or other agreement or instrument to which the Company or any Subsidiary is a party or by which any of them or their respective assets or properties may be bound or affected, or under any Law federal, state, local or foreign law, regulation or rule or any decree, judgment or order applicable to the Company or any Subsidiary, except in the case of this clause (ii2) for such breaches or defaults which would not, individually or in the aggregate, aggregate not reasonably be expected to have a Material Adverse EffectEffect and which would not reasonably be expected to have a material adverse effect on the Company and the Operating Partnership’s ability to perform their agreed upon obligations under the Agreement; or (B) result in the creation or imposition of any lien, charge, claim or encumbrance upon any property or asset of the Company or any Subsidiary, except for such liens, charges, claims or encumbrances which would individually or in aggregate not reasonably be expected to have a Material Adverse Effect;
g. (xiv) this Agreement and the Management Agreement have has been duly authorized, executed and delivered by each of the Company and the Operating Partnership and each is a legal, valid and binding agreement of each of the Company and the Operating Partnership enforceable against the Company and the Operating Partnership in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, and by general equitable principles, and except to the extent that the indemnification and contribution provisions of Section 12 9 hereof may be limited by federal or state securities laws and public policy considerations in respect thereof;
h. (xv) no approval, authorization, consent or order of or filing with any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency is required in connection with the Company’s or the Operating Partnership’s execution, delivery and performance of this Agreement Agreement, the consummation of the transactions contemplated herein by the Company or the Operating Partnership, their consummation of the transactions contemplated herein, and including the Company’s issuance, sale and delivery of the Placement Shares, other than (A) such as have been obtained, or will have been obtained at the Closing Time or the relevant Settlement DateDate of Delivery, as the case may be, under the Securities Act and the Exchange Act, or (B) such approvals as have been obtained in connection with the approval of the listing of the Placement Shares on the Exchange, (C) such as have been obtained or made under the rules and regulations of the Financial Industry Regulatory Authority (“FINRA”) and (D) any necessary qualification under the securities or “blue sky sky” laws of the various jurisdictions in which the Placement Shares are being offered by the AgentUnderwriters, or (C), any such approvals, authorizations, consents, orders, or filings that if not obtained or made, would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect and which would not reasonably be expected to have a material adverse effect on the Company and the Operating Partnership’s ability to perform their agreed upon obligations under the Agreement;
i. (xvi) each of the Company and the Subsidiaries has all necessary licenses, authorizations, consents and approvals and has made all necessary filings required under any Lawfederal, state, local or foreign law, regulation or rule, and has obtained all necessary authorizations, consents and approvals from other persons, required in order to conduct their respective businesses as described in both the Registration Statement Prospectus and the ProspectusDisclosure Package, except to the extent that any failure to have any such licenses, authorizations, consents or approvals, to make any such filings or to obtain any such authorizations, consents or approvals would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; neither the Company nor any of the Subsidiaries is required by any applicable law to obtain accreditation or certification from any governmental agency or authority in order to provide the products and services which it currently provides or which it proposes to provide as set forth in the Registration Statement and the Prospectus; neither the Company, nor any of the Subsidiaries is in violation of, in default under, or has received any notice regarding a possible violation, default or revocation of any such license, authorization, consent or approval or any federal, state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Company or any of the Subsidiaries the effect of which could would reasonably be expected to result in a Material Adverse Change; and no such license, authorization, consent or approval contains a materially burdensome restriction that is not adequately disclosed in each of the Registration Statement and the Prospectus;
j. the Company meets the requirements for use of Form S-3 under the Securities Act; (xvii) the Registration Statement has become been declared effective under the Securities Act and by the Commission; the Rule 462(b) Registration Statement, if any, is effective; no stop order suspending the effectiveness or the use of the Registration Statement Statement, including any Rule 462(b) Registration Statement, has been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Company, are contemplated or threatened by the Commission; and the Company has complied to the Commission’s satisfaction with any request on the part of the Commission for additional information;
k. (xviii) the Registration Statement Preliminary Prospectus, as of each effective its date (including each deemed effective date with respect to the Agent pursuant to Rule 430B or otherwise under the Securities Act) and as of the date hereof, complied or complies, the Registration Statement, as of each effective date and as of the date hereof, complied, complies or will complycomply in all material respects, and the Prospectus as of its date and any further amendments or supplements to the Registration Statement Statement, the Preliminary Prospectus or the Prospectus at the time they were filed with the Commission, were, or willwill comply in all material respects, when they become effective or are filed with the Commission, as the case may be, comply, in all material respects with the requirements of the Securities Act, including Rule 415; the documents incorporated by reference in the Registration Statement Act and the Prospectus, when they became effective or at the time they were or hereafter are filed with the Commission, complied and will comply in all material respects with the requirements of the Exchange Act;
l. Securities Act Regulations; the Registration Statement, as of each effective date (including each deemed effective date with respect to the Agent pursuant to Rule 430B or otherwise under the Securities Act), and as of the date hereof, and at each Settlement Datedate, did not, and does not or will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; the Preliminary Prospectus, as of its date, did not contain and the Prospectus or any amendment or supplement thereto will notthereto, as of its issue datetheir respective dates, as of the applicable filing date, as of the date hereof hereof, the Closing Time and at on each Settlement DateDate of Delivery (if any), will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no warranty or representation with respect to any statement contained in or omitted from the Registration Statement Statement, the Preliminary Prospectus or the Prospectus or any amendment or supplement to any of the foregoing in reliance upon and in conformity with the information concerning the Agent Underwriters and furnished in writing by or on behalf of the Agent Underwriters through the Representatives to the Company expressly for use thereintherein (that information being limited to that described in the penultimate sentence of the first paragraph of Section 9(b) hereof);
(xix) for the purposes of this Agreement, the “Applicable Time” is 1:15 p.m. (Eastern Standard Time) on the date of this Agreement; the documents incorporated by reference in Disclosure Package as of the Registration Statement and the Prospectus, at the time the Registration Statement became effective or when such documents incorporated by reference were filed with the Commission, as the case may be, when read together with the other information in the Registration Statement or the Prospectus, as the case may beApplicable Time, did not and will not include an any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
m. as of the issue date or date of first use and at all subsequent times through each Settlement Date, each Issuer Free Writing Prospectus did not, and at the time of each sale of Placement Shares and at the Settlement date, each such Issuer Free Writing Prospectus will not, contain an untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
n. ; and each Issuer Free Writing Prospectus, if any, as of its issue date and at all subsequent times through Prospectus included in the completion of the public offer and sale of the Placement Shares did not, Disclosure Package does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein, and any other prospectus deemed to be a part thereof that has not been superseded or modified;
o. the Company is eligible to use Free Writing Prospectuses in connection with this offering pursuant to Rules 164 and 433 under the Securities Act; any Free Writing Prospectus that the Company is required to file pursuant to Rule 433(d) has been, or will be, filed with the Commission in accordance with the requirements of the Securities Act; and each Free Writing Prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d) or that was prepared by or on behalf of or used by the Company complies or will comply in all material respects with the requirements of the Securities Act;
p. except for any Issuer Free Writing ProspectusesStatement, the Company has not prepared, used Preliminary Prospectus or referred to, and will not, without the prior consent of the Agent, prepare, use or refer to, any Free Writing Prospectus;
q. the Prospectus and any Issuer Free Writing Prospectuses (to the extent any each such Issuer Free Writing Prospectus was required to be filed Prospectus, as supplemented by and taken together with the Commission) delivered to other information comprising the Agent for use in connection with the public offering of the Placement Shares contemplated herein have been and will be identical to the versions of such documents transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T under the Securities Act;
r. the Company filed the Registration Statement with the Commission before using any Issuer Free Writing Prospectus;
s. there are no actions, suits, proceedings, inquiries or investigations pending or, to the knowledge of the Company or the Operating Partnership, threatened against the Company or any Subsidiary or any of their respective officers and directors or to which the properties, assets or rights of any such entity are subject, at law or in equity, before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority, arbitral panel or agency which could result in a judgment, decree, award or order having a Material Adverse Effect;
t. the consolidated financial statements, including the notes thereto, included in each of the Registration Statement and the Prospectus present fairly the consolidated financial position of the Company and its subsidiaries Disclosure Package as of the dates indicated and their consolidated results Applicable Time, did not include any untrue statement of operations and changes a material fact or omit to state any material fact necessary in financial position anorder to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes
Appears in 1 contract
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, represent and warrant to, and agree with to the Agent Underwriters as of the date of this Agreementhereof, as of each Representation Date (as defined below)the Applicable Time referred to in Section 3(n) hereof, as of the time of each sale of Placement Shares pursuant to this Agreement Closing Time and as of each Settlement Daterespective Date of Delivery referred to in Section 2(a) hereof, unless such representation, warranty or agreement specifies a different date or timethat:
a. (a) the Company has an authorized capitalization of 200 million shares of Common Stock and 50 million shares of preferred stock, par value $.01 per share (the authorized “Preferred Stock”) and an outstanding capitalization as set forth in the Registration Statement General Disclosure Package (as defined in Section 3(n) hereof) and the Prospectus; the outstanding shares of capital stock or partnership or membership interests, of the Company and each subsidiary of the Company, including the Operating Partnership and its subsidiaries (each, a “Subsidiary” and collectively, the “Subsidiaries”), as applicable, have been duly and validly authorized and issued and are fully paid and non-assessable. All of the outstanding and, with respect to shares of capital stock, partnership membership interests and membership limited partnership interests, as the case may be, of the subsidiaries of the Company identified on Schedule 4 hereto (each, a “Subsidiary”) have been duly authorized and are validly issued, fully paid and non-assessable securities thereof (except to the extent such non-assessability may be affected by Section 17-607 of the Delaware Revised Uniform Limited Partnership Act or Section 18-607 of the Delaware Limited Liability Company Act), and, except as disclosed in Exhibit A to the ProspectusAgreement of Limited Partnership of the Operating Partnership (the “Partnership Agreement”), all of the outstanding shares of capital stock, stock or partnership interest or membership interests, as the case may be, interests of the Subsidiaries are directly or indirectly owned of record and beneficially by the Company; , free and clear of any pledge, lien, encumbrance, security interest or other claim, except for security interests in favor of lenders created pursuant to or in connection with loan documents disclosed in the General Disclosure Package and the Prospectus, and, except as disclosed in the ProspectusGeneral Disclosure Package and the Prospectus and pursuant to registration rights agreements entered into in connection with acquisitions, there are no outstanding (i) securities or obligations of the Company or any of the Subsidiaries convertible into or exchangeable or redeemable for any capital stock or other equity interests of the Company or any such Subsidiary, (ii) warrants, rights or options to subscribe for or purchase from the Company or any such Subsidiary any such capital stock or other equity interests or any such convertible or exchangeable securities or obligations, or (iii) obligations of the Company or any such Subsidiary to issue any shares of capital stockstock or other equity interests, any such convertible or exchangeable or redeemable securities or obligation, or any such warrants, rights or options; all issued and outstanding units of partnership interest in the Operating Partnership (“Units”) owned by the Company are owned free and clear of any perfected security interest or any other security interests, claims, liens or encumbrances;
b. (b) each of the Company and the Subsidiaries (all of which Subsidiaries are named in Schedule II hereto, which schedule also identifies each of the Subsidiaries that is a “significant subsidiary” within the meaning of Rule 1-02(w) of Regulation S-X) has been duly incorporated, formed incorporated or organized and is validly existing as a corporation, general or limited partnership or limited liability company company, as applicable, in good standing under the laws of its respective jurisdiction of incorporation, formation incorporation or organization with full corporate or other power and authority to own its respective properties and to conduct its respective businesses as described in each of the Registration Statement General Disclosure Package and the Prospectus, Prospectus and, in the case of each of the Company and the Operating Partnership, to execute and deliver this Agreement and to consummate the transactions contemplated herein and to perform its obligations under the Amended and Restated Management Agreement, dated October 27, 2015, by and among the Company, the Operating Partnership and the Manager (the “Management Agreement”)herein;
c. (c) each of the Company and each of the Subsidiaries is duly qualified or licensed and is in good standing in each jurisdiction in which it conducts the nature or conduct of its businesses business requires such qualification or in which it owns or leases real property or otherwise maintains an office license and in which the failure, individually or in the aggregate, to be so qualified or licensed would could reasonably be expected to have a material adverse effect on the assets, business, operations, earnings, prospects, properties or condition (financial or otherwise) of the Company and the Subsidiaries taken as a whole, whole (any such effect or change, where the context so requires, is hereinafter called a “Material Adverse Effect” or “Material Adverse Change”); except as disclosed in the ProspectusProspectus and the General Disclosure Package, no Subsidiary is prohibited or restricted, directly or indirectly, from paying dividends to the Company, or from making any other distribution with respect to such Subsidiary’s capital stock or other equity interests or from repaying to the Company or any other Subsidiary any amounts which that may from time to time become due under any loans or advances to such Subsidiary from the Company or such other Subsidiary, or from transferring any such Subsidiary’s property or assets to the Company or to any other Subsidiary; other than as disclosed in the ProspectusProspectus and the General Disclosure Package, the Company and the Operating Partnership do does not own, directly or indirectly, any capital stock or other equity securities of any other corporation or any ownership interest in any partnership, joint venture or other association;
d. (d) the Partnership Agreement has been duly and validly authorized, executed and delivered by or on behalf of the partners of the Operating Partnership and constitutes a valid and binding agreement of the parties thereto, enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally or by general principles of equity;
(i) Ashford OP Limited Partner, LLC (the “Limited Partner”) is a holder of Units representing a majority limited partnership ownership interest in the Operating Partnership and such units of preferred limited partnership interest in the Operating Partnership as described in the General Disclosure Package and the Prospectus (“Preferred Units”), (ii) Ashford OP General Partner, LLC (the “General Partner”) is the holder of the sole general partner interest in the Operating Partnership, and (iii) the Company owns a 100% membership interest in the General Partner and in the Limited Partner, in each case free and clear of any pledge, lien, encumbrance, security interest or other claim, except for security interests in favor of lenders created pursuant to or in connection with loan documents disclosed in the General Disclosure Package and the Prospectus;
(f) the Company and the Subsidiaries are in compliance in all material respects with all applicable federal, state, local or foreign laws, regulations, rules, regulationsdecrees, judgments and orders, decrees and judgments, including those relating to transactions with affiliates, except where any failures to be in compliance could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
e. (g) neither the Company nor any Subsidiary is in breach of or in default under (nor has any event occurred which with notice, lapse of time, or both would constitute a breach of, or default under), (i) its respective charterorganizational documents, bylaws, agreement of limited partnership, operating agreement or other similar organizational documents (the “Organizational Documents”), (ii) in the performance or observance of any obligation, agreement, covenant or condition contained in any license, indenture, mortgage, deed of trust, loan or credit agreement or other agreement or instrument to which the Company or any Subsidiary is a party or by which any of them or their respective properties is bound, or (iii) any federal, state, local or foreign law, regulation or rule or any decree, judgment, permit or order (each, a “Law”) applicable to the Company or any Subsidiary, except, in the case of clauses (ii) and (iii) above, except for such breaches or defaults which would notthat, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect;
f. (h) the execution, delivery and performance of this Agreement, Agreement and consummation of the transactions contemplated herein will not (Ai) conflict with, or result in any breach of, or constitute a default under (nor constitute any event which with notice, lapse of time, or both would constitute a breach of, or default under), (iA) any provision of the Organizational Documents organizational documents of the Company or any Subsidiary, or (iiB) any provision of any license, indenture, mortgage, deed of trust, loan or credit agreement or other agreement or instrument to which the Company or any Subsidiary is a party or by which any of them or their respective assets or properties may be bound or affected, or under any Law federal, state, local or foreign law, regulation or rule or any decree, judgment or order applicable to the Company or any Subsidiary, except in the case of this clause (iiB) for such breaches or defaults which would notthat, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect; or (Bii) result in the creation or imposition of any lien, charge, claim or encumbrance upon any property or asset of the Company or any Subsidiary;
g. (i) this Agreement and the Management Agreement have has been duly authorized, executed and delivered by the Company and the Operating Partnership and each is a legal, valid and binding agreement of the Company and the Operating Partnership enforceable in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, and by general equitable principles, and except to the extent that the indemnification and contribution provisions of Section 12 9 hereof may be limited by federal or state securities laws and public policy considerations in respect thereof;
h. (j) no approval, authorization, consent or order of or filing with any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency or any other third party is required in connection with the Company’s or the Operating Partnership’s execution, delivery and performance of this Agreement by the Company or the Operating PartnershipAgreement, their consummation of the transactions contemplated herein, and herein or the Company’s sale and delivery of the Placement Shares, other than (Ai) such as have been obtained, or will have been obtained at the Closing Time or the relevant Settlement DateDate of Delivery, as the case may be, under the Securities Act and the Securities Exchange Act of 1934 (the “Exchange Act”) and the rules and regulations thereunder (the “Exchange Act Regulations”), (Bii) such approvals as have been obtained in connection with the approval of the listing of the Placement Shares on the New York Stock Exchange, (C) such as have been obtained or made under the rules and regulations of the Financial Industry Regulatory Authority (“FINRA”) and (Diii) any necessary qualification under the securities or blue sky laws of the various state jurisdictions in which the Placement Shares are being offered by the AgentUnderwriters, and (iv) such approvals, authorizations, consents or orders or filings, the absence of which could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
i. (k) each of the Company and the Subsidiaries has all necessary licenses, authorizations, consents and approvals and has made all necessary filings required under any Lawfederal, state, local or foreign law, regulation or rule, and has obtained all necessary authorizations, consents and approvals from other persons, required in order to conduct their respective businesses as described in the Registration Statement General Disclosure Package and the Prospectus, except to the extent that any failure to have any such licenses, authorizations, consents or approvals, to make any such filings or to obtain any such authorizations, consents or approvals would could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; neither the Company nor any of the Subsidiaries is required by any applicable law to obtain accreditation or certification from any governmental agency or authority in order to provide the products and services which it currently provides or which it proposes to provide as set forth in the Registration Statement and the Prospectus; neither the Company, nor any of the Subsidiaries is in violation of, in default under, or has received any notice regarding a possible violation, default or revocation of any such license, authorization, consent or approval or any federal, state, local or foreign law, regulation or rule or any decree, judgment or order or judgment applicable to the Company or any of the Subsidiaries Subsidiaries, the effect of which could reasonably be expected to result in a Material Adverse ChangeEffect; and no such license, authorization, consent or approval contains a materially burdensome restriction that is not adequately disclosed in each of the Registration Statement General Disclosure Package and the Prospectus; neither the Company nor any of the Subsidiaries is required by any applicable law to obtain accreditation or certification from any governmental agency or authority in order to provide the products and services that it currently provides or that it proposes to provide as set forth in the General Disclosure Package and the Prospectus except to the extent that any failure to have such accreditation or certification could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
j. (l) the Company meets and the transactions contemplated by this Agreement meet the requirements for the use of Form S-3 under the Securities Act; the Registration Statement has become been declared effective under the Securities Act and Act; no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Company, are contemplated or threatened by the Commission; and , and, to the knowledge of the Company, the Company has complied to the Commission’s satisfaction with any request on the part of the Commission for additional information;
k. (m) at the respective times the Registration Statement as of each and any post-effective date (including each amendments thereto became effective, at the deemed effective date with respect to the Agent Underwriters pursuant to Rule 430B or otherwise under 430B(f)(2) of the Securities Act) and as of Act Regulations, at the date hereofof this Agreement, complied or will complyat the Closing Time and at the relevant Date of Delivery, and the Prospectus Registration Statement and any further amendments or supplements to the Registration Statement or the Prospectus at the time they were filed with the Commission, were, or will, when they become effective or are filed with the Commission, as the case may be, thereto complied and will comply, in all material respects with the requirements of the Securities Act, including Rule 415; the documents incorporated by reference in the Registration Statement Act and the Prospectus, when they became effective or at the time they were or hereafter are filed with the Commission, complied Securities Act Regulations and will comply in all material respects with the requirements of the Exchange Act;
l. the Registration Statement, as of each effective date (including each deemed effective date with respect to the Agent pursuant to Rule 430B or otherwise under the Securities Act), did not and as of the date hereof, and at each Settlement Date, did not, and does not or will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and the Prospectus and any further amendments or any amendment or supplement thereto will not, as of its issue date, as of the applicable filing date, as of the date hereof and at each Settlement Date, contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no warranty or representation with respect to any statement contained in or omitted from the Registration Statement or the Prospectus in reliance upon and in conformity with the information concerning the Agent and furnished in writing by or on behalf of the Agent to the Company expressly for use therein; the documents incorporated by reference in the Registration Statement and the Prospectussupplements thereto, at the time the Registration Statement became effective Prospectus or when such documents incorporated by reference were filed amendment or supplement was issued, at the date hereof, at the time of filing pursuant to Rule 424(b) and at the Closing Time and relevant Date of Delivery, complied and will comply, in all material respects with the Commission, as requirements of the case may be, when read together with Securities Act and the other information in the Registration Statement or the Prospectus, as the case may be, Securities Act Regulations and did not and will not include contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading;
m. ; and each preliminary prospectus and the prospectus filed as part of the issue date Registration Statement as originally filed or date as part of first use any amendment or supplement thereto or filed pursuant to Rule 424 of the Securities Act Regulations, complied when so filed in all material respects with the Securities Act and at all subsequent times through each Settlement Date, each Issuer Free Writing Prospectus did not, and the Securities Act Regulations; at the earliest time after the filing of each sale the Registration Statement that the Company or another offering participant made a bona fide offer (within the meaning of Placement Rule 164(h)(2) of the Securities Act Regulations) of the Shares and at the Settlement datedate hereof, each such the Company was not and is not an “ineligible issuer,” as defined in Rule 405 of the Securities Act Regulations (“Rule 405”);
(n) as of the Applicable Time (as defined below), neither (x) the Issuer General Use Free Writing Prospectus(es) (as defined below) issued at or prior to the Applicable Time, the Statutory Prospectus will not(as defined below) and the information, contain provided in oral or written form, included on Schedule III hereto, all considered together (collectively, the “General Disclosure Package”), nor (y) any individual Issuer Limited Use Free Writing Prospectus, when considered together with the General Disclosure Package, included an untrue statement of a material fact or omit omitted 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;
n. each Issuer Free Writing Prospectus, if any, ; as of its issue date used in this subsection and at all subsequent times through the completion of the public offer and sale of the Placement Shares did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained elsewhere in the Registration Statement or the Prospectus, including any document incorporated by reference therein, and any other prospectus deemed to be a part thereof that has not been superseded or modified;
o. the Company is eligible to use Free Writing Prospectuses in connection with this offering pursuant to Rules 164 and 433 under the Securities Act; any Free Writing Prospectus that the Company is required to file pursuant to Rule 433(d) has been, or will be, filed with the Commission in accordance with the requirements of the Securities Act; and each Free Writing Prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d) or that was prepared by or on behalf of or used by the Company complies or will comply in all material respects with the requirements of the Securities Act;
p. except for any Issuer Free Writing Prospectuses, the Company has not prepared, used or referred to, and will not, without the prior consent of the Agent, prepare, use or refer to, any Free Writing Prospectus;
q. the Prospectus and any Issuer Free Writing Prospectuses (to the extent any such Issuer Free Writing Prospectus was required to be filed with the Commission) delivered to the Agent for use in connection with the public offering of the Placement Shares contemplated herein have been and will be identical to the versions of such documents transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T under the Securities Act;
r. the Company filed the Registration Statement with the Commission before using any Issuer Free Writing Prospectus;
s. there are no actions, suits, proceedings, inquiries or investigations pending or, to the knowledge of the Company or the Operating Partnership, threatened against the Company or any Subsidiary or any of their respective officers and directors or to which the properties, assets or rights of any such entity are subject, at law or in equity, before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority, arbitral panel or agency which could result in a judgment, decree, award or order having a Material Adverse Effect;
t. the consolidated financial statements, including the notes thereto, included in each of the Registration Statement and the Prospectus present fairly the consolidated financial position of the Company and its subsidiaries as of the dates indicated and their consolidated results of operations and changes in financial position anAgreement:
Appears in 1 contract
Sources: Underwriting Agreement (Ashford Hospitality Trust Inc)
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, represent and warrant toto the Underwriters, and agree with the Agent as of the date of this Agreement, as of each Representation Date (as defined below)hereof, as of the time of each sale of Placement Shares pursuant to this Agreement Closing Time and as of each Settlement Dateany Date of Delivery, unless such representation, warranty or agreement specifies a different date or timethat:
a. (i) the Company has the an authorized and outstanding capitalization as set forth in both the Registration Statement Prospectus and the ProspectusDisclosure Package; the outstanding shares of capital stock of the Company and NRFC Sub-REIT Corp., a Maryland corporation and a subsidiary of the Operating Partnership (the “Private REIT”), have been duly and validly authorized and issued and are fully paid and non-assessable. All nonassessable;
(ii) the outstanding partnership interests of the outstanding shares of capital stock, partnership interests and membership interests, as the case may be, of the subsidiaries of the Company identified on Schedule 4 hereto (each, a “Subsidiary”) Operating Partnership have been duly and validly authorized and are validly issued, fully paid and non-assessable securities thereof and, except as disclosed in the Prospectus, ; all of the outstanding shares of capital stock, partnership interest or membership interests, as the case may be, stock of the Subsidiaries Private REIT are directly or and indirectly owned of record and beneficially by the Operating Partnership and the Company; , respectively;
(iii) except as disclosed in both the ProspectusProspectus and the Disclosure Package, there are no outstanding (iA) securities or obligations of the Company or any the subsidiaries of the Subsidiaries Company required to be set forth in Exhibit 21.1 to the Company’s Form 10-K for the fiscal year ended December 31, 2012 (the “Subsidiaries”), convertible into or exchangeable for any capital stock of or partnership interests, membership interests or other equity interests, as the case may be, in the Company or any such Subsidiary, (iiB) warrants, rights or options to subscribe for or purchase from the Company or any such Subsidiary any such capital stock or any such convertible or exchangeable securities or obligations, or (iiiC) obligations of the Company or any such Subsidiary to issue any shares of capital stocksecurities or obligations, any such convertible or exchangeable securities or obligationobligations, or any such warrants, rights or options; all issued options the existence of which, in each case of (A), (B) and outstanding units of partnership interest (C), is required to be disclosed in the Operating Partnership (“Units”) owned by Prospectus and the Company Disclosure Package and are owned free and clear of any perfected security interest or any other security interests, claims, liens or encumbrancesnot so disclosed;
b. (iv) each of the Company and each of the Subsidiaries has been duly incorporated, formed incorporated or organized and is validly existing as a corporation, general or limited partnership or limited liability company company, as the case may be, except to the extent, in the case of the Subsidiaries, that the failure to be so organized would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect and is in good standing under the laws of its respective jurisdiction of incorporation, formation incorporation or organization with full power except to the extent that the failure to be so qualified or in good standing would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
(v) each of the Company and the Subsidiaries has the corporate, partnership or limited liability company power, as the case may be, and authority to own its their respective properties and to conduct its their respective businesses businesses, each as described in each of the Registration Statement Statement, the Prospectus and the ProspectusDisclosure Package except to the extent that the failure to have such power or authority would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, and, in the case of the Company and the Operating Partnership, to execute and deliver this Agreement and to consummate the transactions contemplated herein and to perform its obligations under the Amended and Restated Management described in this Agreement, dated October 27, 2015, by and among the Company, the Operating Partnership and the Manager (the “Management Agreement”);
c. (vi) the Company and each of the Subsidiaries is are duly qualified or licensed and in good standing in each jurisdiction in which it conducts its businesses where such qualification or in which it owns or leases real property or otherwise maintains an office and in which license is required except where the failure, individually or in the aggregate, to be so qualified or licensed would not reasonably be expected to have a material adverse effect on the assets, business, operations, earnings, prospects, properties or condition (financial or otherwise) of the Company and the Subsidiaries taken as a whole, (any such effect or change, where the context so requires, is hereinafter called a “Material Adverse Effect” or “Material Adverse Change”); ;
(vii) except as disclosed in both the ProspectusProspectus and the Disclosure Package, no Subsidiary the Operating Partnership is neither contractually prohibited or nor contractually restricted, directly or indirectly, from paying dividends to the Company, or from making any other distribution with respect to such Subsidiarythe Operating Partnership’s partnership interests or from repaying to the Company or another subsidiary of the Company any amounts which may from time to time become due under any loans or advances to the Operating Partnership from the Company or another subsidiary of the Company, or from transferring the Operating Partnership’s property or assets to the Company or another subsidiary of the Company;
(viii) except as disclosed in both the Prospectus and the Disclosure Package, the Private REIT is neither contractually prohibited nor contractually restricted, directly or indirectly, from paying dividends to the Operating Partnership, or from making any other distribution with respect to the Private REIT’s shares of capital stock or from repaying to the Company, the Operating Partnership or another subsidiary of the Company any amounts which may from time to time become due under any loans or advances to the Private REIT from the Company, the Operating Partnership or another subsidiary of the Company, or from transferring the Private REIT’s property or assets to the Company, the Operating Partnership or another subsidiary of the Company;
(ix) except as disclosed in both the Prospectus and the Disclosure Package, no Subsidiary (other than the Operating Partnership and the Private REIT, which are covered above) is contractually prohibited or restricted, directly or indirectly, from paying dividends to the Operating Partnership or the Private REIT, to the extent such Subsidiary is a direct subsidiary of the Operating Partnership or the Private REIT, or from making any other distribution with respect to the outstanding membership interests of such Subsidiary or from repaying to the Company, the Operating Partnership or another subsidiary of the Company any amounts which may from time to time become due under any loans or advances to such Subsidiary from the Company Company, the Operating Partnership or such other Subsidiaryanother subsidiary of the Company, or from transferring any such Subsidiary’s property or assets to the Company, the Operating Partnership or another subsidiary of the Company except for any such prohibitions and restrictions that would not individually or in the aggregate reasonably be expected to have a Material Adverse Effect or to the extent that any other Subsidiary; other than such restriction would currently materially limit the Company’s ability to pay dividends or that would be reasonably likely to materially limit the future payment of dividends on Common Stock;
(x) the Agreement of Limited Partnership of the Operating Partnership, dated as of October 19, 2004, as amended (the “Partnership Agreement”), has been duly and validly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally or by general principles of equity, and except to the extent that the indemnification and contribution provisions thereof may be limited by federal or state securities laws and public policy considerations in respect thereof;
(xi) the Company is the sole general partner of the Operating Partnership and owns units of partnership interest in the Operating Partnership (“OP Units”) representing an ownership interest in the Operating Partnership in the percentage set forth in both the Prospectus and the Disclosure Package, and, except as disclosed in the Prospectus, the Company Prospectus and the Operating Partnership do not ownDisclosure Package, directly or indirectlysuch ownership interest is free and clear of any pledge, any capital stock lien, encumbrance, security interest or other equity securities of claim except for any other corporation or any ownership pledge, lien, encumbrance, security interest in any partnership, joint venture or other associationclaim that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
d. the Company and the Subsidiaries are in compliance in all material respects with all applicable laws, rules, regulations, orders, decrees and judgments, including those relating to transactions with affiliates;
e. (xii) neither the Company nor any Subsidiary is in breach of or in default under (nor has any event occurred which with notice, lapse of time, or both would constitute a breach of, or default under), (i) its respective charterorganizational documents, bylaws, agreement of limited partnership, operating agreement or other similar organizational documents (the “Organizational Documents”), (ii) in the performance or observance of any obligation, agreement, covenant or condition contained in any license, indenture, mortgage, deed of trust, loan or credit agreement or other agreement or instrument to which the Company or any Subsidiary is a party or by which any of them or their respective properties or assets is bound, or (iii) any federal, state, local or foreign law, regulation or rule or any decree, judgment, permit or order (each, a “Law”) applicable to the Company or any Subsidiary, except, in the case of clauses (ii) and (iii) above, except for such breaches or defaults which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
f. (xiii) the execution, delivery and performance of this Agreement, Agreement and consummation of the transactions contemplated herein will not (A) conflict with, or result in any breach of, or constitute a default under (nor constitute any event which with notice, lapse of time, or both would constitute a breach of, or default under), ): (i1) any provision of the Organizational Documents organizational documents of the Company or any Subsidiary, or (ii2) any provision of any license, indenture, mortgage, deed of trust, loan or credit agreement or other agreement or instrument to which the Company or any Subsidiary is a party or by which any of them or their respective assets or properties may be bound or affected, or under any Law federal, state, local or foreign law, regulation or rule or any decree, judgment or order applicable to the Company or any Subsidiary, except in the case of this clause (ii2) for such breaches or defaults which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse EffectEffect and which would not reasonably be expected to have a material adverse effect on the Company and the Operating Partnership’s ability to perform their agreed upon obligations under the Agreement; or (B) result in the creation or imposition of any lien, charge, claim or encumbrance upon any property or asset of the Company or any Subsidiary, except for such liens, charges, claims or encumbrances which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
g. (xiv) this Agreement and the Management Agreement have has been duly authorized, executed and delivered by each of the Company and the Operating Partnership and each is a legal, valid and binding agreement of each of the Company and the Operating Partnership enforceable against the Company and the Operating Partnership in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, and by general equitable principles, and except to the extent that the indemnification and contribution provisions of Section 12 9 hereof may be limited by federal or state securities laws and public policy considerations in respect thereof;
h. (xv) no approval, authorization, consent or order of or filing with any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency is required in connection with the Company’s or the Operating Partnership’s execution, delivery and performance of this Agreement Agreement, the consummation of the transactions contemplated herein by the Company or the Operating Partnership, their consummation of the transactions contemplated herein, and including the Company’s issuance, sale and delivery of the Placement Shares, other than (A) such as have been obtained, or will have been obtained at the Closing Time or the relevant Settlement DateDate of Delivery, as the case may be, under the Securities Act and the Exchange Act, (B) such approvals as have been obtained in connection with the approval of the listing of the Placement Shares on the Exchange, (C) such as have been obtained or made under the rules and regulations of the Financial Industry Regulatory Authority (“FINRA”) and (D) any necessary qualification under the securities or “blue sky sky” laws of the various jurisdictions in which the Placement Shares are being offered by the AgentUnderwriters, or (C) any such approvals, authorizations, consents, orders, or filings that if not obtained or made, would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect and which would not reasonably be expected to have a material adverse effect on the Company and the Operating Partnership’s ability to perform their agreed upon obligations under this Agreement;
i. (xvi) each of the Company and the Subsidiaries has all necessary licenses, authorizations, consents and approvals and has made all necessary filings required under any Lawfederal, state, local or foreign law, regulation or rule, and has obtained all necessary authorizations, consents and approvals from other persons, required in order to conduct their respective businesses as described in both the Registration Statement Prospectus and the ProspectusDisclosure Package, except to the extent that any failure to have any such licenses, authorizations, consents or approvals, to make any such filings or to obtain any such authorizations, consents or approvals would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; neither the Company nor any of the Subsidiaries is required by any applicable law to obtain accreditation or certification from any governmental agency or authority in order to provide the products and services which it currently provides or which it proposes to provide as set forth in the Registration Statement and the Prospectus; neither the Company, nor any of the Subsidiaries is in violation of, in default under, or has received any notice regarding a possible violation, default or revocation of any such license, authorization, consent or approval or any federal, state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Company or any of the Subsidiaries the effect of which could would reasonably be expected to result in a Material Adverse Change; and no such license;
(A) at the time of filing the Original Registration Statement, authorization, consent or approval contains a materially burdensome restriction that is not adequately disclosed in each (B) at the time of the most recent amendment to the Registration Statement for the purposes of complying with Section 10(a)(3) of the Securities 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) and the Prospectus;
j. (C) at any time the Company meets or any person acting on its behalf (within the requirements meaning, for use this clause only, of Form S-3 under Rule 163(c) of the Securities ActAct Regulations) made any offer relating to the Shares in reliance on the exemption of Rule 163 of the Securities Act Regulations (“Rule 163”), the Company was and is a “well-known seasoned issuer” as defined in Rule 405, including not having been and not being an “ineligible issuer” as defined in Rule 405; the Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 and the Shares, since their registration on the Registration Statement, have been and remain eligible for registration by the Company on a Rule 405 “automatic shelf registration statement”; and the Company has become effective under not received from the Commission any notice pursuant to Rule 401(g)(2) of the Securities Act Regulations objecting to the use of the automatic shelf registration statement form;
(xviii) the Original Registration Statement became effective upon filing under Rule 462(e) on February 19, 2013, and any post-effective amendment thereto also became effective upon filing under Rule 462(e); no stop order suspending the effectiveness or the use of the Registration Statement has been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Company, are contemplated or threatened by the Commission; , and the Company has complied to the Commission’s satisfaction with any request on the part of the Commission for additional informationinformation have been complied with;
k. (xix) any offer that is a written communication relating to the Shares made by the Company or any person acting on its behalf (within the meaning, for this sentence only, of Rule 163(c)) prior to the filing of the Original Registration Statement as has been filed with the Commission in accordance with Rule 163 and otherwise complied with the requirements of Rule 163, including without limitation the legending requirement, to qualify such offer for the exemption from Section 5(c) of the Securities Act provided by Rule 163;
(xx) the respective times the Original Registration Statement became effective and each effective date (including amendment thereto became effective, at each deemed effective date with respect to the Agent Underwriters pursuant to Rule 430B or otherwise under 430B(f)(2) of the Securities Act) Act Regulations and as of the date hereof, complied or will comply, and the Prospectus and any further amendments or supplements to the Registration Statement or the Prospectus at the time they were filed with the Commission, were, or will, when they become effective or are filed with the Commission, as the case may be, comply, in all material respects with the requirements of the Securities Act, including Rule 415; the documents incorporated by reference in the Registration Statement and the Prospectus, when they became effective or at the time they were or hereafter are filed with the Commission, any amendments thereto complied and will comply in all material respects with the requirements of the Exchange Act;
l. the Registration Statement, as of each effective date (including each deemed effective date with respect to the Agent pursuant to Rule 430B or otherwise under Securities Act and the Securities Act)Act Regulations, and as of the date hereof, and at each Settlement Date, did not, and does not or will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and the Prospectus or any amendment or supplement thereto will not, as of its issue date, as of the applicable filing date, as of the date hereof and at each Settlement Date, contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no warranty or representation with respect to any statement contained in or omitted from the Registration Statement or the Prospectus any amendment thereto in reliance upon and in conformity with the information concerning the Agent Underwriters and furnished in writing by or on behalf of the Agent Underwriters to the Company expressly for use therein; the documents incorporated by reference in the Registration Statement and the Prospectus, at the time the Registration Statement became effective or when such documents incorporated by reference were filed with the Commission, as the case may be, when read together with the other information in the Registration Statement or the Prospectus, as the case may be, did not and will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
m. as of the issue date or date of first use and at all subsequent times through each Settlement Date, each Issuer Free Writing Prospectus did not, and at the time of each sale of Placement Shares and at the Settlement date, each such Issuer Free Writing Prospectus will not, contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
n. each Issuer Free Writing Prospectus, if any, as of its issue date and at all subsequent times through the completion of the public offer and sale of the Placement Shares did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein, and any other prospectus deemed to be a part thereof that has not been superseded or modified;
o. the Company is eligible to use Free Writing Prospectuses in connection with this offering pursuant to Rules 164 and 433 under the Securities Act; any Free Writing Prospectus that the Company is required to file pursuant to Rule 433(d) has been, or will be, filed with the Commission in accordance with the requirements of the Securities Act; and each Free Writing Prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d) or that was prepared by or on behalf of or used by the Company complies or will comply in all material respects with the requirements of the Securities Act;
p. except for any Issuer Free Writing Prospectuses, the Company has not prepared, used or referred to, and will not, without the prior consent of the Agent, prepare, use or refer to, any Free Writing Prospectus;
q. the Prospectus and any Issuer Free Writing Prospectuses (to the extent any such Issuer Free Writing Prospectus was required to be filed with the Commission) delivered to the Agent for use in connection with the public offering of the Placement Shares contemplated herein have been and will be identical to the versions of such documents transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T under the Securities Act;
r. the Company filed the Registration Statement with the Commission before using any Issuer Free Writing Prospectus;
s. there are no actions, suits, proceedings, inquiries or investigations pending or, to the knowledge of the Company or the Operating Partnership, threatened against the Company or any Subsidiary or any of their respective officers and directors or to which the properties, assets or rights of any such entity are subject, at law or in equity, before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority, arbitral panel or agency which could result in a judgment, decree, award or order having a Material Adverse Effect;
t. the consolidated financial statements, including the notes thereto, included in each of the Registration Statement and the Prospectus present fairly the consolidated financial position of the Company and its subsidiaries as of the dates indicated and their consolidated results of operations and changes in financial position anCo
Appears in 1 contract
Sources: Underwriting Agreement (Northstar Realty Finance Corp.)
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, represent and warrant to, and agree with to the Agent Underwriters as of the date of this Agreementhereof, as of each Representation Date (as defined below)the Applicable Time referred to in Section 3(o) hereof, as of the time of each sale of Placement Shares pursuant to this Agreement Closing Time and as of each Settlement Daterespective Date of Delivery referred to in Section 2(a) hereof, unless such representation, warranty or agreement specifies a different date or timethat:
a. (a) the Company has an authorized capitalization of 200 million shares of common stock, par value $.01 per share (the authorized “Common Stock”), and 50 million shares of preferred stock, par value $.01 per share (including the Series E Preferred Stock, the “Preferred Stock”) and an outstanding capitalization as set forth in the Registration Statement General Disclosure Package (as defined in Section 3(o) hereof) and the Prospectus; the outstanding shares of capital stock or partnership or membership interests, of the Company and each subsidiary of the Company, including the Operating Partnership and its subsidiaries (each, a “Subsidiary” and collectively, the “Subsidiaries”), as applicable, have been duly and validly authorized and issued and are fully paid and non-assessable. All of the outstanding and, with respect to shares of capital stock, partnership membership interests and membership limited partnership interests, as the case may be, of the subsidiaries of the Company identified on Schedule 4 hereto (each, a “Subsidiary”) have been duly authorized and are validly issued, fully paid and non-assessable securities thereof (except to the extent such non-assessability may be affected by Section 17-607 of the Delaware Revised Uniform Limited Partnership Act or Section 18-607 of the Delaware Limited Liability Company Act), and, except as disclosed in Exhibit A to the ProspectusAgreement of Limited Partnership of the Operating Partnership (the “Partnership Agreement”), all of the outstanding shares of capital stock, stock or partnership interest or membership interests, as the case may be, interests of the Subsidiaries are directly or indirectly owned of record and beneficially by the Company; , free and clear of any pledge, lien, encumbrance, security interest or other claim, except for security interests in favor of lenders created pursuant to or in connection with loan documents disclosed in the General Disclosure Package and the Prospectus, and, except as disclosed in the ProspectusGeneral Disclosure Package and the Prospectus and pursuant to registration rights agreements entered into in connection with acquisitions, there are no outstanding (i) securities or obligations of the Company or any of the Subsidiaries convertible into or exchangeable or redeemable for any capital stock or other equity interests of the Company or any such Subsidiary, (ii) warrants, rights or options to subscribe for or purchase from the Company or any such Subsidiary any such capital stock or other equity interests or any such convertible or exchangeable securities or obligations, or (iii) obligations of the Company or any such Subsidiary to issue any shares of capital stockstock or other equity interests, any such convertible or exchangeable or redeemable securities or obligation, or any such warrants, rights or options; the shares of Common Stock initially issuable upon conversion of the Shares have been duly authorized and, when issued upon conversion of the Shares in accordance with the terms of the articles supplementary to the Company’s charter establishing the terms of the Series E Preferred Stock (the “Articles Supplementary”), will be validly issued, fully paid and nonassessable; the Board of Directors of the Company has duly and validly reserved such shares of Common Stock for issuance upon conversion of the Shares; the shares of Common Stock issuable upon conversion of the Shares conform to all issued and outstanding units of partnership interest statements relating thereto contained in the Operating Partnership (“Units”) owned Registration Statement, the General Disclosure Package and the Prospectus; the form of certificate used to evidence the shares of Common Stock issuable upon conversion of the Shares will be in substantially the form incorporated by reference as an exhibit to the Company are owned free Registration Statement, and clear such form complies with all applicable statutory requirements and requirements of any perfected security interest or any other security interests, claims, liens or encumbrancesthe Company’s charter and bylaws;
b. (b) each of the Company and the Subsidiaries (all of which Subsidiaries are named in Schedule II hereto, which schedule also identifies each of the Subsidiaries that is a “significant subsidiary” within the meaning of Rule 1-02(w) of Regulation S-X), has been duly incorporated, formed incorporated or organized and is validly existing as a corporation, general or limited partnership or limited liability company company, as applicable, in good standing under the laws of its respective jurisdiction of incorporation, formation incorporation or organization with full corporate or other power and authority to own its respective properties and to conduct its respective businesses as described in each of the Registration Statement General Disclosure Package and the Prospectus, Prospectus and, in the case of each of the Company and the Operating Partnership, to execute and deliver this Agreement and to consummate the transactions contemplated herein and to perform its obligations under the Amended and Restated Management Agreement, dated October 27, 2015, by and among the Company, the Operating Partnership and the Manager (the “Management Agreement”)herein;
c. (c) each of the Company and each of the Subsidiaries is duly qualified or licensed and is in good standing in each jurisdiction in which it conducts the nature or conduct of its businesses business requires such qualification or in which it owns or leases real property or otherwise maintains an office license and in which the failure, individually or in the aggregate, to be so qualified or licensed would could reasonably be expected to have a material adverse effect on the assets, business, operations, earnings, prospects, properties or condition (financial or otherwise) of the Company and the Subsidiaries taken as a whole, whole (any such effect or change, where the context so requires, is hereinafter called a “Material Adverse Effect” or “Material Adverse Change”); except as disclosed in the ProspectusProspectus and the General Disclosure Package, no Subsidiary is prohibited or restricted, directly or indirectly, from paying dividends to the Company, or from making any other distribution with respect to such Subsidiary’s capital stock or other equity interests or from repaying to the Company or any other Subsidiary any amounts which that may from time to time become due under any loans or advances to such Subsidiary from the Company or such other Subsidiary, or from transferring any such Subsidiary’s property or assets to the Company or to any other Subsidiary; other than as disclosed in the ProspectusProspectus and the General Disclosure Package, the Company and the Operating Partnership do does not own, directly or indirectly, any capital stock or other equity securities of any other corporation or any ownership interest in any partnership, joint venture or other association;
d. (d) the Partnership Agreement has been duly and validly authorized, executed and delivered by or on behalf of the partners of the Operating Partnership and constitutes a valid and binding agreement of the parties thereto, enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally or by general principles of equity;
(i) Ashford OP Limited Partner, LLC (the “Limited Partner”) is a holder of units of common limited partnership interest (the “Common Units”) representing a majority limited partnership ownership interest in the Operating Partnership and such units of preferred limited partnership interest in the Operating Partnership (the “Preferred Units”) as described in the General Disclosure Package and the Prospectus, (ii) Ashford OP General Partner, LLC (the “General Partner”) is the holder of the sole general partner interest in the Operating Partnership, and (iii) the Company owns a 100% membership interest in the General Partner and in the Limited Partner, in each case free and clear of any pledge, lien, encumbrance, security interest or other claim, except for security interests in favor of lenders created pursuant to or in connection with loan documents disclosed in the General Disclosure Package and the Prospectus;
(f) the Company and the Subsidiaries are in compliance in all material respects with all applicable federal, state, local or foreign laws, regulations, rules, regulationsdecrees, judgments and orders, decrees and judgments, including those relating to transactions with affiliates, except where any failures to be in compliance could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
e. (g) neither the Company nor any Subsidiary is in breach of or in default under (nor has any event occurred which with notice, lapse of time, or both would constitute a breach of, or default under), (i) its respective charterorganizational documents, bylaws, agreement of limited partnership, operating agreement or other similar organizational documents (the “Organizational Documents”), (ii) in the performance or observance of any obligation, agreement, covenant or condition contained in any license, indenture, mortgage, deed of trust, loan or credit agreement or other agreement or instrument to which the Company or any Subsidiary is a party or by which any of them or their respective properties is bound, or (iii) any federal, state, local or foreign law, regulation or rule or any decree, judgment, permit or order (each, a “Law”) applicable to the Company or any Subsidiary, except, in the case of clauses (ii) and (iii) above, except for such breaches or defaults which would notthat, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect;
f. (h) the execution, delivery and performance of this Agreement, Agreement and consummation of the transactions contemplated herein will not (Ai) conflict with, or result in any breach of, or constitute a default under (nor constitute any event which with notice, lapse of time, or both would constitute a breach of, or default under), (iA) any provision of the Organizational Documents organizational documents of the Company or any Subsidiary, or (iiB) any provision of any license, indenture, mortgage, deed of trust, loan or credit agreement or other agreement or instrument to which the Company or any Subsidiary is a party or by which any of them or their respective assets or properties may be bound or affected, or under any Law federal, state, local or foreign law, regulation or rule or any decree, judgment or order applicable to the Company or any Subsidiary, except in the case of this clause (iiB) for such breaches or defaults which would notthat, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect; or (Bii) result in the creation or imposition of any lien, charge, claim or encumbrance upon any property or asset of the Company or any Subsidiary;
g. (i) this Agreement and the Management Agreement have has been duly authorized, executed and delivered by the Company and the Operating Partnership and each is a legal, valid and binding agreement of the Company and the Operating Partnership enforceable in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, and by general equitable principles, and except to the extent that the indemnification and contribution provisions of Section 12 9 hereof may be limited by federal or state securities laws and public policy considerations in respect thereof;
h. (j) no approval, authorization, consent or order of or filing with any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency or any other third party is required in connection with the Company’s or the Operating Partnership’s execution, delivery and performance of this Agreement by the Company or the Operating PartnershipAgreement, their consummation of the transactions contemplated herein, and herein or the Company’s sale and delivery of the Placement Shares, other than (Ai) such as have been obtained, or will have been obtained at the Closing Time or the relevant Settlement DateDate of Delivery, as the case may be, under the Securities Act and the Securities Exchange Act of 1934 (the “Exchange Act”) and the rules and regulations thereunder (the “Exchange Act Regulations”), (Bii) such approvals as have been obtained in connection with the approval of the listing of the Placement Shares on the New York Stock Exchange, (C) such as have been obtained or made under the rules and regulations of the Financial Industry Regulatory Authority (“FINRA”) and (Diii) any necessary qualification under the securities or blue sky laws of the various state jurisdictions in which the Placement Shares are being offered by the AgentUnderwriters, and (iv) such approvals, authorizations, consents or orders or filings, the absence of which could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
i. (k) the Articles Supplementary will be, by the Closing Time, duly authorized and executed by the Company and accepted for record by the Maryland State Department of Assessments and Taxation and effective under the Maryland General Corporation Law;
(l) each of the Company and the Subsidiaries has all necessary licenses, authorizations, consents and approvals and has made all necessary filings required under any Lawfederal, state, local or foreign law, regulation or rule, and has obtained all necessary authorizations, consents and approvals from other persons, required in order to conduct their respective businesses as described in the Registration Statement General Disclosure Package and the Prospectus, except to the extent that any failure to have any such licenses, authorizations, consents or approvals, to make any such filings or to obtain any such authorizations, consents or approvals would could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; neither the Company nor any of the Subsidiaries is required by any applicable law to obtain accreditation or certification from any governmental agency or authority in order to provide the products and services which it currently provides or which it proposes to provide as set forth in the Registration Statement and the Prospectus; neither the Company, nor any of the Subsidiaries is in violation of, in default under, or has received any notice regarding a possible violation, default or revocation of any such license, authorization, consent or approval or any federal, state, local or foreign law, regulation or rule or any decree, judgment or order or judgment applicable to the Company or any of the Subsidiaries Subsidiaries, the effect of which could reasonably be expected to result in a Material Adverse ChangeEffect; and no such license, authorization, consent or approval contains a materially burdensome restriction that is not adequately disclosed in each of the Registration Statement General Disclosure Package and the Prospectus; neither the Company nor any of the Subsidiaries is required by any applicable law to obtain accreditation or certification from any governmental agency or authority in order to provide the products and services that it currently provides or that it proposes to provide as set forth in the General Disclosure Package and the Prospectus except to the extent that any failure to have such accreditation or certification could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
j. (m) the Company meets and the transactions contemplated by this Agreement meet the requirements for the use of Form S-3 under the Securities Act; the Registration Statement has become been declared effective under the Securities Act and Act; no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Company, are contemplated or threatened by the Commission; and , and, to the knowledge of the Company, the Company has complied to the Commission’s satisfaction with any request on the part of the Commission for additional information;
k. (n) at the respective times the Registration Statement as of each and any post-effective date (including each amendments thereto became effective, at the deemed effective date with respect to the Agent Underwriters pursuant to Rule 430B or otherwise under 430B(f)(2) of the Securities Act) and as of Act Regulations, at the date hereof, complied or will comply, of this Agreement and the Prospectus and any further amendments or supplements to the Registration Statement or the Prospectus at the time they were filed with Closing Time and at the Commission, were, or will, when they become effective or are filed with the Commissionrelevant Date of Delivery, as the case may be, the Registration Statement and any amendments or supplements thereto complied and will comply, in all material respects with the requirements of the Securities Act, including Rule 415; the documents incorporated by reference in the Registration Statement Act and the Prospectus, when they became effective or at the time they were or hereafter are filed with the Commission, complied Securities Act Regulations and will comply in all material respects with the requirements of the Exchange Act;
l. the Registration Statement, as of each effective date (including each deemed effective date with respect to the Agent pursuant to Rule 430B or otherwise under the Securities Act), did not and as of the date hereof, and at each Settlement Date, did not, and does not or will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and the Prospectus and any further amendments or any amendment or supplement thereto will not, as of its issue date, as of the applicable filing date, as of the date hereof and at each Settlement Date, contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no warranty or representation with respect to any statement contained in or omitted from the Registration Statement or the Prospectus in reliance upon and in conformity with the information concerning the Agent and furnished in writing by or on behalf of the Agent to the Company expressly for use therein; the documents incorporated by reference in the Registration Statement and the Prospectussupplements thereto, at the time the Registration Statement became effective Prospectus or when such documents incorporated by reference were filed with amendment or supplement was issued, at the Commissiondate hereof, at the time of filing pursuant to Rule 424(b) and at the Closing Time and the relevant Date of Delivery, as the case may be, when read together complied and will comply, in all material respects with the other information in requirements of the Registration Statement or Securities Act and the Prospectus, as the case may be, Securities Act Regulations and did not and will not include contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
m. as of the issue date or date of first use and at all subsequent times through each Settlement Date, each Issuer Free Writing Prospectus did not, and at the time of each sale of Placement Shares and at the Settlement date, each such Issuer Free Writing Prospectus will not, contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
n. ; and each Issuer Free Writing Prospectus, if any, preliminary prospectus and the prospectus filed as part of its issue date and at all subsequent times through the completion of the public offer and sale of the Placement Shares did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement as originally filed or the Prospectus, including as part of any document incorporated by reference therein, and any other prospectus deemed to be a part thereof that has not been superseded amendment or modified;
o. the Company is eligible to use Free Writing Prospectuses in connection with this offering pursuant to Rules 164 and 433 under the Securities Act; any Free Writing Prospectus that the Company is required to file supplement thereto or filed pursuant to Rule 433(d) has been, or will be, filed with the Commission in accordance with the requirements 424 of the Securities Act; and each Free Writing Prospectus that the Company has filedAct Regulations, or is required to file, pursuant to Rule 433(d) or that was prepared by or on behalf of or used by the Company complies or will comply complied when so filed in all material respects with the requirements of Securities Act and the Securities Act;
p. except for any Issuer Free Writing Prospectuses, Act Regulations; at the Company has not prepared, used or referred to, and will not, without earliest time after the prior consent of the Agent, prepare, use or refer to, any Free Writing Prospectus;
q. the Prospectus and any Issuer Free Writing Prospectuses (to the extent any such Issuer Free Writing Prospectus was required to be filed with the Commission) delivered to the Agent for use in connection with the public offering of the Placement Shares contemplated herein have been and will be identical to the versions of such documents transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T under the Securities Act;
r. the Company filed the Registration Statement with the Commission before using any Issuer Free Writing Prospectus;
s. there are no actions, suits, proceedings, inquiries or investigations pending or, to the knowledge of the Company or the Operating Partnership, threatened against the Company or any Subsidiary or any of their respective officers and directors or to which the properties, assets or rights of any such entity are subject, at law or in equity, before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority, arbitral panel or agency which could result in a judgment, decree, award or order having a Material Adverse Effect;
t. the consolidated financial statements, including the notes thereto, included in each of the Registration Statement and that the Prospectus present fairly Company or another offering participant made a bona fide offer (within the consolidated financial position meaning of Rule 164(h)(2) of the Company and its subsidiaries as Securities Act Regulations) of the dates indicated Shares and their consolidated results of operations at the date hereof, the Company was not and changes in financial position anis not an “ineligible issuer,” a
Appears in 1 contract
Sources: Underwriting Agreement (Ashford Hospitality Trust Inc)
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, Partnership represent and warrant to, and agree with to each Underwriter that:
(a) the Agent as authorized shares of beneficial interest of the date of this Agreement, as of each Representation Date (as defined below), as of Company conform in all material respects to the time of each sale of Placement Shares pursuant to this Agreement and as of each Settlement Date, unless such representation, warranty or agreement specifies a different date or time:
a. description thereof contained in the Prospectus; the Company has the authorized an authorized, issued and outstanding capitalization as set forth disclosed in the Registration Statement Prospectus; at the First Closing Date, 128,350,939 Common Shares will be issued and the Prospectusoutstanding and no other shares of beneficial interest will be issued and outstanding; the outstanding shares of beneficial interest of the Company and the outstanding shares of beneficial interest and capital stock of each subsidiary of the Company Company, all of which are listed on Exhibit 21 to the Company’s Annual Report on Form 10-K for the year ended December 31, 2004 (each, including the Operating Partnership, except where noted, a “Subsidiary” and, collectively, “Subsidiaries”) have been duly and validly authorized and issued and are fully paid and non-assessable. All of the outstanding shares of capital stocknonassessable, partnership interests and membership interests, as in the case may beof limited liability company membership interests or units of limited partnership interest, of the subsidiaries of the Company identified on Schedule 4 hereto (each, a “Subsidiary”) have been duly and validly authorized and issued and are validly issuedfully paid, fully paid have been issued in compliance with federal and non-assessable state securities thereof andlaws, and except as disclosed in the ProspectusProspectus with respect to First States Partners II, L.P. and First States Investors 228, LLC, all of the outstanding shares of beneficial interest, capital stock, units of limited partnership interest or and limited liability company membership interests, as the case may be, interests of the Subsidiaries Subsidiaries, excluding the Operating Partnership, are directly or indirectly owned of record and beneficially by the Company; except as disclosed in the Prospectus, there are no outstanding (i) securities or obligations of the Company or any of the Subsidiaries convertible into or exchangeable for any capital stock equity interests of the Company or any such Subsidiary, (ii) warrants, rights or options to subscribe for or purchase from the Company or any such Subsidiary any such capital stock equity interests or any such convertible or exchangeable securities or obligations, obligations or (iii) obligations of the Company or any such Subsidiary to issue any shares of capital stockequity interests, any such convertible or exchangeable securities or obligation, or any such warrants, rights or options; all issued the descriptions of the Company’s share option, bonus and outstanding units of partnership interest other share plans or arrangements, and the options or other rights granted thereunder, set forth in the Operating Partnership Prospectus accurately and fairly present the information required to be disclosed with respect to such plans, arrangements, options and rights.
(“Units”b) owned by the Company are owned free and clear of any perfected security interest or any other security interests, claims, liens or encumbrances;
b. each of the Company and each of the Subsidiaries has been duly incorporated, formed or organized and is validly existing as a corporation, general or limited partnership or limited liability company in good standing real estate investment trust under the laws of its respective jurisdiction the State of incorporationMaryland and is in good standing with the State Department of Assessments and Taxation of Maryland (the “SDAT”), formation or organization with full all requisite trust power and authority to own own, lease and operate its respective properties properties, and to conduct its respective businesses business as described in each of the Registration Statement and the Prospectus, and, in the case of the Company and the Operating Partnership, to execute and deliver this Agreement and to consummate the transactions contemplated herein and to perform its obligations under the Amended and Restated Management Agreement, dated October 27, 2015, by and among the Company, the Operating Partnership and the Manager (the “Management Agreement”);
c. the Company and each of the Subsidiaries is duly qualified as a foreign entity to transact business or licensed and is in good standing in each jurisdiction in which it conducts the nature or conduct of its businesses business requires such qualification or in which it owns or leases real property or otherwise maintains an office license and in which the failure, individually or in the aggregate, to be so qualified or licensed would could, individually or in the aggregate, reasonably be expected to have a material adverse effect on the assets, business, operations, earnings, prospects, properties or condition (financial or otherwise) ), of the Company and the Subsidiaries taken as a whole, whole (any such effect or change, where the context so requires, is hereinafter called a “Material Adverse Effect” or “Material Adverse Change”); except as disclosed in the Prospectus, all of the issued and outstanding shares of beneficial interest, capital stock, limited liability company membership interests or units of limited partnership interests of each Subsidiary are owned by the Company directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim; except as disclosed in the Prospectus, no Subsidiary is prohibited or restricted, directly or indirectly, from paying dividends to the Company, or from making any other distribution with respect to such Subsidiary’s capital stock or from repaying to the Company or any other Subsidiary any amounts which may from time to time become due under any loans or advances to such Subsidiary from the Company or such other Subsidiary, or from transferring any such Subsidiary’s property or assets to the Company or to any other Subsidiary; other than as disclosed in the ProspectusProspectus and the next paragraph, the Company and the Operating Partnership do does not own, directly or indirectly, any capital stock or other equity securities of any other corporation or any ownership interest in any partnership, joint venture or other association;.
d. (c) as of March 31, 2005 (i) the Company was a holder of units of limited partnership interest in the Operating Partnership (the “Units”) representing an approximate 96.6% interest in the Operating Partnership, (ii) First States Group, LLC (the “General Partner”) was the holder of Units representing an approximate 0.50% interest in the Operating Partnership, as its sole general partner, and (iii) the Company will own a 100% membership interest in the General Partner; the Subsidiaries have been duly incorporated, formed or organized, as the case may be, and are validly existing as a corporation, limited liability company, general partnership or limited partnership, as the case may be, in good standing under the laws of their respective jurisdictions of incorporation, formation or organization, as applicable, with all requisite power and authority to own, lease and operate their respective properties and to conduct their respective business as described in the Registration Statement and the Prospectus; each Subsidiary is duly qualified to transact business or licensed as a foreign corporation, foreign limited partnership or foreign limited liability company, as applicable, and is in good standing in each jurisdiction in which the conduct or nature of their business requires such qualification or license, and in which the failure to be so qualified or licensed could, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(d) the Amended and Restated Agreement of Limited Partnership of the Operating Partnership, as further amended and/or restated (the “Partnership Agreement”), has been duly and validly authorized, executed and delivered by or on behalf of the partners of the Operating Partnership and constitutes a valid and binding agreement of the parties thereto, enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally or by general principles of equity.
(e) the Company has not distributed and will not distribute, prior to the later of the last Option Closing Date or the completion of the Underwriters’ distribution of the Shares, any offering material in connection with the offering and sale of the Shares other than the Prospectus and the Registration Statement.
(f) the Company and the Subsidiaries are in compliance in all material respects with all applicable laws, rules, regulations, orders, decrees and judgments, including those relating to transactions with affiliates;, except where any failures to be in compliance could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
e. (g) the Company is not in violation of its Amended and Restated Declaration of Trust, as amended or restated, (the “Declaration of Trust”) or Bylaws; the Operating Partnership is not in violation of its Certificate of Limited Partnership or the Partnership Agreement, and, to our knowledge, no Subsidiary is in violation of its applicable organizational documents (including, without limitation, partnership and limited liability company agreements); neither the Company nor any Subsidiary is in breach of or default in default under (nor has any event occurred which with notice, lapse of time, or both would constitute a breach of, or default under), (i) its respective charter, bylaws, agreement of limited partnership, operating agreement or other similar organizational documents (the “Organizational Documents”), (iiin) the performance or observance by the Company or any Subsidiary, as the case may be, of any obligation, agreement, contract, franchise, covenant or condition contained in any license, indenture, mortgage, deed of trust, loan or credit agreement agreement, lease or other agreement or instrument to which the Company or any Subsidiary is a party or by which any of them or their respective properties is bound, or (iii) any federal, state, local or foreign law, regulation or rule or any decree, judgment, permit or order (each, a “Law”) applicable to the Company or any Subsidiary, except, in the case of clauses (ii) and (iii) above, except for such breaches or defaults which would notwhich, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect;.
f. (h) the execution, delivery and performance of this Agreement, the issuance, sale and delivery by the Company of the Shares and the consummation of the transactions contemplated herein will not (A) conflict with, or result in any breach of, or constitute a default under (nor constitute any event which with notice, lapse of time, or both would constitute a breach of, or default under), default) (i) by the Company of any provisions of its Declaration of Trust or Bylaws, by the Operating Partnership of any provisions under its Certificate of Limited Partnership or Partnership Agreement, by any Subsidiary (excluding the Operating Partnership) of any provision of the Organizational Documents of the Company or any Subsidiaryits applicable organizational documents, or (ii) of any provision of any obligation, agreement, contract, franchise, license, indenture, mortgage, deed of trust, loan or credit agreement agreement, lease or other agreement or instrument to which the Company or any Subsidiary is a party or by which any of them or their respective properties may be bound or affected, or (iii) under any Law federal, state, local or foreign law, regulation or rule or any decree, judgment or order applicable to the Company or any Subsidiary, except in the case of this clause (ii) for such breaches or defaults which would not, individually or in the aggregate, have a Material Adverse Effect; or (B) result in the creation or imposition of any lien, charge, claim or encumbrance upon any property or asset of the Company or any Subsidiary;.
g. (i) the Company has the full legal right, trust power and authority to enter into this Agreement and to consummate the Management transactions contemplated herein; the Company has the trust power to issue, sell and deliver the Shares as provided herein; this Agreement have has been duly authorized, executed and delivered by the Company and the Operating Partnership and each is a legal, valid and binding agreement of the Company and enforceable against the Operating Partnership enforceable Company in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, and by general equitable principles, and except to the extent that the indemnification and contribution provisions of Section 12 9 hereof may be limited by federal or state securities laws and public policy considerations in respect thereof;.
h. (j) the Operating Partnership has the full legal right, power and authority to enter into this Agreement and to consummate the transactions contemplated herein; this Agreement has been duly authorized, executed and delivered by the Operating Partnership and constitutes the valid and binding agreement of the Operating Partnership enforceable against the Operating Partnership in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, and by general equitable principles, and except to the extent that the indemnification and contribution provisions of Section 9 hereof may be limited by federal or state securities laws and public policy considerations in respect thereof.
(k) no approval, authorization, consent or order of of, or registration or filing with any federal, state, state or local or foreign governmental or regulatory commission, board, body, authority or agency is required in connection with for the Company’s or Operating Partnership’s execution, delivery and performance of this Agreement by and the Company Prospectus or the Operating Partnership, their consummation of the transactions contemplated herein, and including the Company’s sale and delivery of the Placement Shares, other than (A) such as have been obtained, or will have been obtained at before the relevant Settlement First Closing Date or the applicable Option Closing Date, as the case may be, under the Securities Act and the Securities Exchange Act of 1934, as amended (the “Exchange Act, (B) such approvals as have been obtained in connection with the approval of the listing of the Placement Shares on the Exchange, (C) such as have been obtained or made under the rules and regulations of the Financial Industry Regulatory Authority (“FINRA”) and (DB) any necessary qualification under the securities or blue sky laws of the various jurisdictions in which the Placement Shares are being offered by the Agent;Underwriters.
i. (l) each of the Company and the Subsidiaries has all necessary licenses, permits, authorizations, consents and approvals approvals, possess valid and current certificates, has made all necessary filings required under any Lawfederal, state or local law, regulation or rule, and has obtained all necessary authorizations, consents and approvals from other persons, required in order to conduct their respective businesses as described in the Registration Statement and the Prospectus, except to the extent that any failure to have any such licenses, permits, authorizations, consents or approvals, to make any such filings or to obtain any such authorizations, consents or approvals would could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; neither the Company nor any of the Subsidiaries is required by any applicable law to obtain accreditation or certification from any governmental agency or authority in order to provide the products and services which it currently provides or which it proposes to provide as set forth in the Registration Statement and the Prospectus; neither the Company, nor any of the Subsidiaries is in violation of, in default under, or has received any notice regarding a possible violation, default or revocation of any such certificate, license, permit, authorization, consent or approval or any federal, state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Company or any of the Subsidiaries the effect of which which, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Change; and no such license, permit, authorization, consent or approval contains a materially burdensome restriction that is not adequately disclosed in each of the Registration Statement and the Prospectus;.
j. the Company meets the requirements for use of Form S-3 under the Securities Act; (m) the Registration Statement has become been declared effective under the Securities Act by the Commission and no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the CompanyCompany and the Operating Partnership, are contemplated or threatened by the Commission; , and the Company has complied has, to the Commission’s satisfaction knowledge of the Company and the Operating Partnership, complied with any request on the part of the Commission for additional or supplemental information;.
k. (n) the Registration Statement as of each effective date (including each deemed effective date with respect to the Agent pursuant to Rule 430B or otherwise under the Securities Act) and as of the date hereof, complied or will complycomplies, and the Prospectus and any further amendments or supplements to the Registration Statement or the Prospectus at the time they were filed with the Commission, were, or thereto will, when they have become effective or are filed with the Commission, as the case may be, comply, in all material respects with the requirements of the Securities Act, including Rule 415Act and the Securities Act Regulations; the documents incorporated by reference in the Registration Statement and the Prospectus, when they became effective or at the time they were or hereafter are filed with the Commission, complied and will comply in all material respects with the requirements of the Exchange Act;
l. the Registration Statement, as of each effective date (including each deemed effective date with respect to the Agent pursuant to Rule 430B or otherwise under the Securities Act), and as of the date hereof, and at each Settlement Date, did not, and does not or any amendment thereto will not not, in each case as of the applicable effective date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and the Prospectus or any amendment or supplement thereto will not, as of its issue date, as of the applicable filing date, as of date and on the date hereof First Closing Date and at on each Settlement DateOption Closing Date (if any), contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no warranty or representation with respect to any statement contained in or omitted from the Registration Statement or the Prospectus Prospectus, or any amendments or supplements thereto, in reliance upon and in conformity with the information concerning the Agent and furnished in writing by or on behalf of the Agent Underwriters through the Representatives to the Company expressly for use therein; the documents incorporated by reference in the Registration Statement and the Prospectus, at the time the Registration Statement became effective or when such documents incorporated by reference were filed with the Commission, as the case may be, when read together with the other information in the Registration Statement or the Prospectus, as or any amendments or supplements thereto (that information being limited to that described in the case may bepenultimate sentence of the first paragraph of Section 9(c) hereof).
(o) each document filed, did not and will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein filed, by the Company pursuant to the Exchange Act and incorporated, or necessary to make be incorporated, by reference in the statements therein not misleading;
m. as of the issue date or date of first use and at all subsequent times through each Settlement DateProspectus, each Issuer Free Writing Prospectus did not, and at the time of each sale of Placement Shares and at the Settlement date, each such Issuer Free Writing Prospectus will not, contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
n. each Issuer Free Writing Prospectus, if any, as of its issue date and at all subsequent times through the completion of the public offer and sale of the Placement Shares did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein, and any other prospectus deemed to be a part thereof that has not been superseded or modified;
o. the Company is eligible to use Free Writing Prospectuses in connection with this offering pursuant to Rules 164 and 433 under the Securities Act; any Free Writing Prospectus that the Company is required to file pursuant to Rule 433(d) has been, or will be, filed with the Commission in accordance with the requirements of the Securities Act; and each Free Writing Prospectus that the Company has filedconformed, or is required to file, pursuant to Rule 433(d) or that was prepared by or on behalf of or used by the Company complies or will comply in all material respects with the requirements of the Securities Act;
p. except for any Issuer Free Writing Prospectuses, the Company has not prepared, used or referred to, and will not, without the prior consent of the Agent, prepare, use or refer to, any Free Writing Prospectus;
q. the Prospectus and any Issuer Free Writing Prospectuses (to the extent any such Issuer Free Writing Prospectus was required to be filed with the Commission) delivered to the Agent for use in connection with the public offering of the Placement Shares contemplated herein have been and will be identical to the versions of such documents transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T under the Securities Act;
r. the Company filed the Registration Statement with the Commission before using any Issuer Free Writing Prospectus;
s. there are no actions, suits, proceedings, inquiries or investigations pending or, to the knowledge of the Company or the Operating Partnership, threatened against the Company or any Subsidiary or any of their respective officers and directors or to which the properties, assets or rights of any such entity are subject, at law or in equity, before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority, arbitral panel or agency which could result in a judgment, decree, award or order having a Material Adverse Effect;
t. the consolidated financial statements, including the notes thereto, included in each of the Registration Statement and the Prospectus present fairly the consolidated financial position of the Company and its subsidiaries as of the dates indicated and their consolidated results of operations and changes in financial position ancon
Appears in 1 contract
Sources: Underwriting Agreement (American Financial Realty Trust)
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, represent and warrant to, and agree with to the Agent Underwriters as of the date of this Agreementhereof, as of each Representation Date (as defined below)the Applicable Time referred to in Section 3(o) hereof, as of the time of each sale of Placement Shares pursuant to this Agreement Closing Time and as of each Settlement Daterespective Date of Delivery referred to in Section 2(a) hereof, unless such representation, warranty or agreement specifies a different date or timethat:
a. (a) the Company has an authorized capitalization of 200 million shares of common stock, par value $.01 per share (the authorized “Common Stock”), and 50 million shares of preferred stock, par value $.01 per share (including the Series E Stock, the “Preferred Stock”) and an outstanding capitalization as set forth in the Registration Statement General Disclosure Package (as defined in Section 3(o) hereof) and the Prospectus; the outstanding shares of capital stock or partnership or membership interests, of the Company and each subsidiary of the Company, including the Operating Partnership and its subsidiaries (each, a “Subsidiary” and collectively, the “Subsidiaries”), as applicable, have been duly and validly authorized and issued and are fully paid and non-assessable. All of the outstanding and, with respect to shares of capital stock, partnership membership interests and membership limited partnership interests, as the case may be, of the subsidiaries of the Company identified on Schedule 4 hereto (each, a “Subsidiary”) have been duly authorized and are validly issued, fully paid and non-assessable securities thereof (except to the extent such non-assessability may be affected by Section 17-607 of the Delaware Revised Uniform Limited Partnership Act or Section 18-607 of the Delaware Limited Liability Company Act), and, except as disclosed in Exhibit A to the ProspectusAgreement of Limited Partnership of the Operating Partnership (the “Partnership Agreement”), all of the outstanding shares of capital stock, stock or partnership interest or membership interests, as the case may be, interests of the Subsidiaries are directly or indirectly owned of record and beneficially by the Company; , free and clear of any pledge, lien, encumbrance, security interest or other claim, except for security interests in favor of lenders created pursuant to or in connection with loan documents disclosed in the General Disclosure Package and the Prospectus, and, except as disclosed in the ProspectusGeneral Disclosure Package and the Prospectus and pursuant to registration rights agreements entered into in connection with acquisitions, there are no outstanding (i) securities or obligations of the Company or any of the Subsidiaries convertible into or exchangeable or redeemable for any capital stock or other equity interests of the Company or any such Subsidiary, (ii) warrants, rights or options to subscribe for or purchase from the Company or any such Subsidiary any such capital stock or other equity interests or any such convertible or exchangeable securities or obligations, or (iii) obligations of the Company or any such Subsidiary to issue any shares of capital stockstock or other equity interests, any such convertible or exchangeable or redeemable securities or obligation, or any such warrants, rights or options; the shares of Common Stock initially issuable upon conversion of the Shares have been duly authorized and, when issued upon conversion of the Shares in accordance with the terms of the articles supplementary to the Company’s charter establishing the terms of the Series E Stock (the “Articles Supplementary”), will be validly issued, fully paid and nonassessable; the Board of Directors of the Company has duly and validly reserved such shares of Common Stock for issuance upon conversion of the Shares; the shares of Common Stock issuable upon conversion of the Shares conform to all issued and outstanding units of partnership interest statements relating thereto contained in the Operating Partnership (“Units”) owned Registration Statement, the General Disclosure Package and the Prospectus; the form of certificate used to evidence the shares of Common Stock issuable upon conversion of the Shares will be in substantially the form incorporated by reference as an exhibit to the Company are owned free Registration Statement, and clear such form complies with all applicable statutory requirements and requirements of any perfected security interest or any other security interests, claims, liens or encumbrancesthe Company’s charter and bylaws;
b. (b) each of the Company and the Subsidiaries (all of which Subsidiaries are named in Schedule II hereto), which schedule also identifies each of the Subsidiaries that is a “significant subsidiary” within the meaning of Rule 1-02(w) of Regulation S-X), has been duly incorporated, formed incorporated or organized and is validly existing as a corporation, general or limited partnership or limited liability company company, as applicable, in good standing under the laws of its respective jurisdiction of incorporation, formation incorporation or organization with full corporate or other power and authority to own its respective properties and to conduct its respective businesses as described in each of the Registration Statement General Disclosure Package and the Prospectus, Prospectus and, in the case of each of the Company and the Operating Partnership, to execute and deliver this Agreement and to consummate the transactions contemplated herein and to perform its obligations under the Amended and Restated Management Agreement, dated October 27, 2015, by and among the Company, the Operating Partnership and the Manager (the “Management Agreement”)herein;
c. (c) each of the Company and each of the Subsidiaries is duly qualified or licensed and is in good standing in each jurisdiction in which it conducts the nature or conduct of its businesses business requires such qualification or in which it owns or leases real property or otherwise maintains an office license and in which the failure, individually or in the aggregate, to be so qualified or licensed would could reasonably be expected to have a material adverse effect on the assets, business, operations, earnings, prospects, properties or condition (financial or otherwise) of the Company and the Subsidiaries taken as a whole, whole (any such effect or change, where the context so requires, is hereinafter called a “Material Adverse Effect” or “Material Adverse Change”); except as disclosed in the ProspectusProspectus and the General Disclosure Package, no Subsidiary is prohibited or restricted, directly or indirectly, from paying dividends to the Company, or from making any other distribution with respect to such Subsidiary’s capital stock or other equity interests or from repaying to the Company or any other Subsidiary any amounts which that may from time to time become due under any loans or advances to such Subsidiary from the Company or such other Subsidiary, or from transferring any such Subsidiary’s property or assets to the Company or to any other Subsidiary; other than as disclosed in the ProspectusProspectus and the General Disclosure Package, the Company and the Operating Partnership do does not own, directly or indirectly, any capital stock or other equity securities of any other corporation or any ownership interest in any partnership, joint venture or other association;
d. (d) the Partnership Agreement has been duly and validly authorized, executed and delivered by or on behalf of the partners of the Operating Partnership and constitutes a valid and binding agreement of the parties thereto, enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally or by general principles of equity;
(i) Ashford OP Limited Partner, LLC (the “Limited Partner”) is a holder of units of common limited partnership interest (the “Common Units”) representing a majority limited partnership ownership interest in the Operating Partnership and such units of preferred limited partnership interest in the Operating Partnership (the “Preferred Units”) as described in the General Disclosure Package and the Prospectus, (ii) Ashford OP General Partner, LLC (the “General Partner”) is the holder of the sole general partner interest in the Operating Partnership, and (iii) the Company owns a 100% membership interest in the General Partner and in the Limited Partner, in each case free and clear of any pledge, lien, encumbrance, security interest or other claim, except for security interests in favor of lenders created pursuant to or in connection with loan documents disclosed in the General Disclosure Package and the Prospectus;
(f) the Company and the Subsidiaries are in compliance in all material respects with all applicable federal, state, local or foreign laws, regulations, rules, regulationsdecrees, judgments and orders, decrees and judgments, including those relating to transactions with affiliates, except where any failures to be in compliance could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
e. (g) neither the Company nor any Subsidiary is in breach of or in default under (nor has any event occurred which with notice, lapse of time, or both would constitute a breach of, or default under), (i) its respective charterorganizational documents, bylaws, agreement of limited partnership, operating agreement or other similar organizational documents (the “Organizational Documents”), (ii) in the performance or observance of any obligation, agreement, covenant or condition contained in any license, indenture, mortgage, deed of trust, loan or credit agreement or other agreement or instrument to which the Company or any Subsidiary is a party or by which any of them or their respective properties is bound, or (iii) any federal, state, local or foreign law, regulation or rule or any decree, judgment, permit or order (each, a “Law”) applicable to the Company or any Subsidiary, except, in the case of clauses (ii) and (iii) above, except for such breaches or defaults which would notthat, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect;
f. (h) the execution, delivery and performance of this Agreement, Agreement and consummation of the transactions contemplated herein will not (Ai) conflict with, or result in any breach of, or constitute a default under (nor constitute any event which with notice, lapse of time, or both would constitute a breach of, or default under), (iA) any provision of the Organizational Documents organizational documents of the Company or any Subsidiary, or (iiB) any provision of any license, indenture, mortgage, deed of trust, loan or credit agreement or other agreement or instrument to which the Company or any Subsidiary is a party or by which any of them or their respective assets or properties may be bound or affected, or under any Law federal, state, local or foreign law, regulation or rule or any decree, judgment or order applicable to the Company or any Subsidiary, except in the case of this clause (iiB) for such breaches or defaults which would notthat, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect; or (Bii) result in the creation or imposition of any lien, charge, claim or encumbrance upon any property or asset of the Company or any Subsidiary;
g. (i) this Agreement and the Management Agreement have has been duly authorized, executed and delivered by the Company and the Operating Partnership and each is a legal, valid and binding agreement of the Company and the Operating Partnership enforceable in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, and by general equitable principles, and except to the extent that the indemnification and contribution provisions of Section 12 9 hereof may be limited by federal or state securities laws and public policy considerations in respect thereof;
h. (j) no approval, authorization, consent or order of or filing with any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency or any other third party is required in connection with the Company’s or the Operating Partnership’s execution, delivery and performance of this Agreement by the Company or the Operating PartnershipAgreement, their consummation of the transactions contemplated herein, and herein or the Company’s sale and delivery of the Placement Shares, other than (Ai) such as have been obtained, or will have been obtained at the Closing Time or the relevant Settlement DateDate of Delivery, as the case may be, under the Securities Act and the Securities Exchange Act of 1934 (the “Exchange Act”) and the rules and regulations thereunder (the “Exchange Act Regulations”), (Bii) such approvals as have been obtained in connection with the approval of the listing of the Placement Shares on the New York Stock Exchange, (C) such as have been obtained or made under the rules and regulations of the Financial Industry Regulatory Authority (“FINRA”) and (Diii) any necessary qualification under the securities or blue sky laws of the various state jurisdictions in which the Placement Shares are being offered by the AgentUnderwriters, and (iv) such approvals, authorizations, consents or orders or filings, the absence of which could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
i. (k) the Articles Supplementary will be, by the Closing Time, duly authorized and executed by the Company and accepted for record by the Maryland State Department of Assessments and Taxation and effective under the Maryland General Corporation Law;
(l) each of the Company and the Subsidiaries has all necessary licenses, authorizations, consents and approvals and has made all necessary filings required under any Lawfederal, state, local or foreign law, regulation or rule, and has obtained all necessary authorizations, consents and approvals from other persons, required in order to conduct their respective businesses as described in the Registration Statement General Disclosure Package and the Prospectus, except to the extent that any failure to have any such licenses, authorizations, consents or approvals, to make any such filings or to obtain any such authorizations, consents or approvals would could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; neither the Company nor any of the Subsidiaries is required by any applicable law to obtain accreditation or certification from any governmental agency or authority in order to provide the products and services which it currently provides or which it proposes to provide as set forth in the Registration Statement and the Prospectus; neither the Company, nor any of the Subsidiaries is in violation of, in default under, or has received any notice regarding a possible violation, default or revocation of any such license, authorization, consent or approval or any federal, state, local or foreign law, regulation or rule or any decree, judgment or order or judgment applicable to the Company or any of the Subsidiaries Subsidiaries, the effect of which could reasonably be expected to result in a Material Adverse ChangeEffect; and no such license, authorization, consent or approval contains a materially burdensome restriction that is not adequately disclosed in each of the Registration Statement General Disclosure Package and the Prospectus; neither the Company nor any of the Subsidiaries is required by any applicable law to obtain accreditation or certification from any governmental agency or authority in order to provide the products and services that it currently provides or that it proposes to provide as set forth in the General Disclosure Package and the Prospectus except to the extent that any failure to have such accreditation or certification could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
j. (m) the Company meets and the transactions contemplated by this Agreement meet the requirements for the use of Form S-3 under the Securities Act; the Registration Statement has become been declared effective under the Securities Act and Act; no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Company, are contemplated or threatened by the Commission; and , and, to the knowledge of the Company, the Company has complied to the Commission’s satisfaction with any request on the part of the Commission for additional information;
k. (n) at the respective times the Registration Statement as of each and any post-effective date (including each amendments thereto became effective, at the deemed effective date with respect to the Agent Underwriters pursuant to Rule 430B or otherwise under 430B(f)(2) of the Securities Act) and as of Act Regulations, at the date hereof, complied or will comply, of this Agreement and the Prospectus and any further amendments or supplements to the Registration Statement or the Prospectus at the time they were filed with Closing Time and at the Commission, were, or will, when they become effective or are filed with the Commissionrelevant Date of Delivery, as the case may be, the Registration Statement and any amendments or supplements thereto complied and will comply, in all material respects with the requirements of the Securities Act, including Rule 415; the documents incorporated by reference in the Registration Statement Act and the Prospectus, when they became effective or at the time they were or hereafter are filed with the Commission, complied Securities Act Regulations and will comply in all material respects with the requirements of the Exchange Act;
l. the Registration Statement, as of each effective date (including each deemed effective date with respect to the Agent pursuant to Rule 430B or otherwise under the Securities Act), did not and as of the date hereof, and at each Settlement Date, did not, and does not or will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and the Prospectus and any further amendments or any amendment or supplement thereto will not, as of its issue date, as of the applicable filing date, as of the date hereof and at each Settlement Date, contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no warranty or representation with respect to any statement contained in or omitted from the Registration Statement or the Prospectus in reliance upon and in conformity with the information concerning the Agent and furnished in writing by or on behalf of the Agent to the Company expressly for use therein; the documents incorporated by reference in the Registration Statement and the Prospectussupplements thereto, at the time the Registration Statement became effective Prospectus or when such documents incorporated by reference were filed with amendment or supplement was issued, at the Commissiondate hereof, at the time of filing pursuant to Rule 424(b) and at the Closing Time and the relevant Date of Delivery, as the case may be, when read together complied and will comply, in all material respects with the other information in requirements of the Registration Statement or Securities Act and the Prospectus, as the case may be, Securities Act Regulations and did not and will not include contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
m. as of the issue date or date of first use and at all subsequent times through each Settlement Date, each Issuer Free Writing Prospectus did not, and at the time of each sale of Placement Shares and at the Settlement date, each such Issuer Free Writing Prospectus will not, contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
n. ; and each Issuer Free Writing Prospectus, if any, preliminary prospectus and the prospectus filed as part of its issue date and at all subsequent times through the completion of the public offer and sale of the Placement Shares did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement as originally filed or the Prospectus, including as part of any document incorporated by reference therein, and any other prospectus deemed to be a part thereof that has not been superseded amendment or modified;
o. the Company is eligible to use Free Writing Prospectuses in connection with this offering pursuant to Rules 164 and 433 under the Securities Act; any Free Writing Prospectus that the Company is required to file supplement thereto or filed pursuant to Rule 433(d) has been, or will be, filed with the Commission in accordance with the requirements 424 of the Securities Act; and each Free Writing Prospectus that the Company has filedAct Regulations, or is required to file, pursuant to Rule 433(d) or that was prepared by or on behalf of or used by the Company complies or will comply complied when so filed in all material respects with the requirements of Securities Act and the Securities Act;
p. except for any Issuer Free Writing Prospectuses, Act Regulations; at the Company has not prepared, used or referred to, and will not, without earliest time after the prior consent of the Agent, prepare, use or refer to, any Free Writing Prospectus;
q. the Prospectus and any Issuer Free Writing Prospectuses (to the extent any such Issuer Free Writing Prospectus was required to be filed with the Commission) delivered to the Agent for use in connection with the public offering of the Placement Shares contemplated herein have been and will be identical to the versions of such documents transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T under the Securities Act;
r. the Company filed the Registration Statement with the Commission before using any Issuer Free Writing Prospectus;
s. there are no actions, suits, proceedings, inquiries or investigations pending or, to the knowledge of the Company or the Operating Partnership, threatened against the Company or any Subsidiary or any of their respective officers and directors or to which the properties, assets or rights of any such entity are subject, at law or in equity, before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority, arbitral panel or agency which could result in a judgment, decree, award or order having a Material Adverse Effect;
t. the consolidated financial statements, including the notes thereto, included in each of the Registration Statement and that the Prospectus present fairly Company or another offering participant made a bona fide offer (within the consolidated financial position meaning of Rule 164(h)(2) of the Company and its subsidiaries as Securities Act Regulations) of the dates indicated Shares and their consolidated results of operations at the date hereof, the Company was not and changes is not an “ineligible issuer,” as defined in financial position anRule 4
Appears in 1 contract
Sources: Underwriting Agreement (Ashford Hospitality Trust Inc)
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, represent and warrant to, and agree with to each of the Agent as Underwriters that:
(a) As of the date of this Agreement, the Company’s predecessor entities (collectively, the “Company’s Predecessors”) have a capitalization as of each Representation Date (as defined below)set forth in both the Prospectus and the Disclosure Package under the heading “Capitalization;” the Company will have, as of the time of each sale of Placement Shares pursuant to this Agreement and as of each Settlement DateClosing Time, unless such representationan authorized, warranty or agreement specifies a different date or time:
a. the Company has the authorized issued and outstanding capitalization as set forth in the Registration Statement Prospectus under the heading “Capitalization;” the issued and the Prospectus; the outstanding shares of capital stock of in the Company and the issued and outstanding shares of capital stock, limited liability company interests and partnership interests in each other entity in which the Company holds, directly or indirectly, any interest, all of which entities and interests are listed on Schedule II hereto (each of such entities listed on Schedule II hereto, including the Operating Partnership, a “Subsidiary”), have been duly authorized and validly authorized and issued and are fully paid and non-assessable. All , free and clear of the outstanding shares of capital stock, partnership interests and membership all security interests, as claims, equities, liens or encumbrances other than security interests, claims, equities, liens or encumbrances related to mortgage debt on the case may be, real property owned by such Subsidiary or that certain credit facility provided by the State of California Public Employees’ Retirement System described in both the subsidiaries of Prospectus and the Company identified on Schedule 4 hereto (each, a “Subsidiary”) have been duly authorized and are validly issued, fully paid and non-assessable securities thereof and, except as disclosed in the Prospectus, Disclosure Package; all of the outstanding shares of capital stock, limited liability company interests and partnership interest or membership interests, as the case may be, interests of the Subsidiaries are Subsidiaries, are, or will be upon the closing of the Formation Transactions, directly or indirectly owned of record and beneficially by the Company; except as disclosed in both the ProspectusProspectus and the Disclosure Package, there are no outstanding (i) securities or obligations of the Company or any of the Subsidiaries convertible into or exchangeable for any capital stock of of, or partnership interest or equity interest in, the Company or any such Subsidiary, (ii) warrants, rights (preemptive or otherwise) or options to subscribe for or purchase from the Company or any such Subsidiary any such capital stock stock, partnership interest or equity interest or any such convertible or exchangeable securities or obligations, or (iii) obligations of the Company or any such Subsidiary to issue any shares of capital stock, partnership interest or equity interest, any such convertible or exchangeable securities or obligation, or any such warrants, rights or options; all issued the descriptions of the Company’s 2007 Equity Incentive Plan, and outstanding units of partnership interest the options, awards or other rights granted thereunder, set forth in both the Operating Partnership (“Units”) owned by Prospectus and the Company are owned free Disclosure Package, accurately and clear of any perfected security interest or any other security interestsfairly present the information required to be disclosed with respect to such plans, claimsarrangements, liens or encumbrancesoptions and rights;
b. (b) each of the Company and each of the Subsidiaries has been duly incorporated, formed incorporated or organized and is validly existing as a corporation, limited liability company or general or limited partnership or limited liability company in good standing under the laws of its respective jurisdiction of incorporation, formation incorporation or organization with full corporate, limited liability company or partnership power and authority authority, as applicable, to own its respective assets and properties and to conduct its respective businesses as described in each of the Registration Statement Statement, the Prospectus and the Prospectus, Disclosure Package and, in the case of the Company and the Operating Partnership, to execute and deliver this Agreement and the Formation Transaction Agreements (as defined below) to which it is a party and to consummate the transactions contemplated herein and therein, and, in the case of the Company, as general partner of the Operating Partnership, to cause the Operating Partnership to execute and deliver this Agreement and to perform its obligations under this Agreement and under each of the Formation Transaction Agreements to which it is a party and to consummate the transactions contemplated herein and therein; the Company is the sole general partner of the Operating Partnership and, as of the Closing Time, the aggregate percentage interests of the Company and the limited partners in the Operating Partnership will be as set forth in both the Prospectus and the Disclosure Package; provided, that to the extent any portion of the Option Shares are sold, the percentage interest of the Company and of such limited partners will be adjusted accordingly; as used in this Agreement, the term “Formation Transaction Agreements” means, collectively, (i) the Amended and Restated Management Agreement of Limited Partnership of the Operating Partnership (the “Partnership Agreement”), filed as Exhibit 10.1 to the Registration Statement, (ii) that certain Contribution Agreement, dated October 27September 19, 20152006, by and among the Company, the Operating Partnership Partnership, and the Manager various contributing entities named therein providing for the contribution by such contributing entities of limited liability company interests and stock to the Company in exchange for shares of Common Stock, filed as Exhibit 10.12 to the Registration Statement, as amended by the First Amendment to Contribution Agreement, dated December 29, 2006, filed as Exhibit 10.18 to the Registration Statement (as amended, the “Management Contribution Agreement”);
c. the Company , (iii) those certain Merger Agreements, each dated September 19, 2006, as amended, by and each of the Subsidiaries is duly qualified or licensed and in good standing in each jurisdiction in which it conducts its businesses or in which it owns or leases real property or otherwise maintains an office and in which the failure, individually or in the aggregate, to be so qualified or licensed would have a material adverse effect on the assets, business, operations, earnings, prospects, properties or condition (financial or otherwise) of among the Company and the Subsidiaries taken as a whole, (any various merging entities named therein providing for the merger of such effect or change, where the context so requires, is hereinafter called a “Material Adverse Effect” or “Material Adverse Change”); except as disclosed in the Prospectus, no Subsidiary is prohibited or restricted, directly or indirectly, from paying dividends to entities with and into separate limited liability company subsidiaries of the Company, or from making any other distribution with respect to such Subsidiary’s capital stock or from repaying in exchange for shares of Common Stock, filed as Exhibits 10.13, 10.14 and 10.19 to the Company or any other Subsidiary any amounts which may from time to time become due under any loans or advances to such Subsidiary from the Company or such other SubsidiaryRegistration Statement, or from transferring any such Subsidiary’s property or assets to the Company or to any other Subsidiary; other than as disclosed in the Prospectus, (iv) those certain Employment Agreements between the Company and the Operating Partnership do not ownPartnership, directly or indirectly, any capital stock or other equity securities of any other corporation or any ownership interest in any partnership, joint venture or other association;
d. on the Company and the Subsidiaries are in compliance in all material respects with all applicable laws, rules, regulations, orders, decrees and judgments, including those relating to transactions with affiliates;
e. neither the Company nor any Subsidiary is in breach of or in default under (nor has any event occurred which with notice, lapse of time, or both would constitute a breach of, or default under), (i) its respective charter, bylaws, agreement of limited partnership, operating agreement or other similar organizational documents (the “Organizational Documents”), (ii) the performance or observance of any obligation, agreement, covenant or condition contained in any license, indenture, mortgage, deed of trust, loan or credit agreement or other agreement or instrument to which the Company or any Subsidiary is a party or by which any of them or their respective properties is bound, or (iii) any federal, state, local or foreign law, regulation or rule or any decree, judgment, permit or order (each, a “Law”) applicable to the Company or any Subsidiary, except, in the case of clauses (ii) and (iii) above, for such breaches or defaults which would not, individually or in the aggregate, have a Material Adverse Effect;
f. the execution, delivery and performance of this Agreementone hand, and consummation of the transactions contemplated herein will not (A) conflict with, or result in any breach of, or constitute a default under (nor constitute any event which with notice, lapse of time, or both would constitute a breach of, or default under), (i) any provision of the Organizational Documents of the Company or any Subsidiary, or (ii) any provision of any license, indenture, mortgage, deed of trust, loan or credit agreement or other agreement or instrument to which the Company or any Subsidiary is a party or by which any of them or their respective properties may be bound or affected, or under any Law applicable to the Company or any Subsidiary, except in the case of this clause (ii) for such breaches or defaults which would not, individually or in the aggregate, have a Material Adverse Effect; or (B) result in the creation or imposition of any lien, charge, claim or encumbrance upon any property or asset of the Company or any Subsidiary;
g. this Agreement and the Management Agreement have been duly authorized, executed and delivered by the Company and the Operating Partnership and each is a legal, valid and binding agreement of the Company and the Operating Partnership enforceable in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, and by general equitable principles, and except to the extent that the indemnification and contribution provisions of Section 12 hereof may be limited by federal or state securities laws and public policy considerations in respect thereof;
h. no approval, authorization, consent or order of or filing with any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency is required in connection with the execution, delivery and performance of this Agreement by the Company or the Operating Partnership, their consummation of the transactions contemplated herein, and the Company’s sale and delivery of the Placement Shares, other than (A) such as have been obtained, or will have been obtained at the relevant Settlement Date, under the Securities Act and the Exchange Act, (B) such approvals as have been obtained in connection with the approval of the listing of the Placement Shares on the Exchange, (C) such as have been obtained or made under the rules and regulations of the Financial Industry Regulatory Authority (“FINRA”) and (D) any necessary qualification under the securities or blue sky laws of the various jurisdictions in which the Placement Shares are being offered by the Agent;
i. each of the Company and the Subsidiaries has all necessary licenses, authorizations, consents and approvals and has made all necessary filings required under any Law, and has obtained all necessary authorizations, consents and approvals from other persons, required in order to conduct their respective businesses as described in the Registration Statement and the Prospectus, except to the extent that any failure to have any such licenses, authorizations, consents or approvals, to make any such filings or to obtain any such authorizations, consents or approvals would not, individually or in the aggregate, have a Material Adverse Effect; neither the Company nor any of the Subsidiaries is required by any applicable law to obtain accreditation or certification from any governmental agency or authority in order to provide the products and services which it currently provides or which it proposes to provide as set forth in the Registration Statement and the Prospectus; neither the Company, nor any of the Subsidiaries is in violation of, in default under, or has received any notice regarding a possible violation, default or revocation of any such license, authorization, consent or approval or any federal, state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Company or any of the Subsidiaries the effect of which could result in a Material Adverse Change; and no such license, authorization, consent or approval contains a materially burdensome restriction that is not adequately disclosed in each of the Registration Statement and the Prospectus;
j. the Company meets the requirements for use of Form S-3 under the Securities Act; the Registration Statement has become effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Company, are contemplated or threatened by the Commission; and the Company has complied to the Commission’s satisfaction with any request on the part of the Commission for additional information;
k. the Registration Statement as of each effective date (including each deemed effective date with respect to the Agent pursuant to Rule 430B or otherwise under the Securities Act) and as of the date hereof, complied or will comply, and the Prospectus and any further amendments or supplements to the Registration Statement or the Prospectus at the time they were filed with the Commission, were, or will, when they become effective or are filed with the Commission, as the case may be, comply, in all material respects with the requirements of the Securities Act, including Rule 415; the documents incorporated by reference in the Registration Statement and the Prospectus, when they became effective or at the time they were or hereafter are filed with the Commission, complied and will comply in all material respects with the requirements of the Exchange Act;
l. the Registration Statement, as of each effective date (including each deemed effective date with respect to the Agent pursuant to Rule 430B or otherwise under the Securities Act), and as of the date hereof, and at each Settlement Date, did not, and does not or will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and the Prospectus or any amendment or supplement thereto will not, as of its issue date, as of the applicable filing date, as of the date hereof and at each Settlement Date, contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no warranty or representation with respect to any statement contained in or omitted from the Registration Statement or the Prospectus in reliance upon and in conformity with the information concerning the Agent and furnished in writing by or on behalf of the Agent to the Company expressly for use therein; the documents incorporated by reference in the Registration Statement and the Prospectus, at the time the Registration Statement became effective or when such documents incorporated by reference were filed with the Commission, as the case may be, when read together with the other information in the Registration Statement or the Prospectus, as the case may be, did not and will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
m. as of the issue date or date of first use and at all subsequent times through each Settlement Date, each Issuer Free Writing Prospectus did not, and at the time of each sale of Placement Shares and at the Settlement date, each such Issuer Free Writing Prospectus will not, contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
n. each Issuer Free Writing Prospectus, if any, as of its issue date and at all subsequent times through the completion of the public offer and sale of the Placement Shares did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein, and any other prospectus deemed to be a part thereof that has not been superseded or modified;
o. the Company is eligible to use Free Writing Prospectuses in connection with this offering pursuant to Rules 164 and 433 under the Securities Act; any Free Writing Prospectus that the Company is required to file pursuant to Rule 433(d) has been, or will be, filed with the Commission in accordance with the requirements of the Securities Act; and each Free Writing Prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d) or that was prepared by or on behalf of or used by the Company complies or will comply in all material respects with the requirements of the Securities Act;
p. except for any Issuer Free Writing Prospectuses, the Company has not prepared, used or referred to, and will not, without the prior consent of the Agent, prepare, use or refer to, any Free Writing Prospectus;
q. the Prospectus and any Issuer Free Writing Prospectuses (to the extent any such Issuer Free Writing Prospectus was required to be filed with the Commission) delivered to the Agent for use in connection with the public offering of the Placement Shares contemplated herein have been and will be identical to the versions of such documents transmitted to the Commission for filing via ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, except ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, on the other hand, filed as Exhibits 10.5, 10.6, 10.7, 10.8, 10.9, 10.10 and 10.11 to the extent permitted by Regulation S-T under the Securities Act;
r. the Company filed the Registration Statement with (the Commission before using any Issuer Free Writing Prospectus;
s. there are no actions“Employment Agreements”), suits, proceedings, inquiries or investigations pending or, to the knowledge of and (iv) those certain Noncompetition Agreements between the Company or and the Operating Partnership, threatened against on the Company or any Subsidiary or any of their respective officers one hand, and directors or to which the properties, assets or rights of any such entity are subject, at law or in equity, before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority, arbitral panel or agency which could result in a judgment, decree, award or order having a Material Adverse Effect;
t. the consolidated financial statements, including the notes thereto, included in each of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, on the other hand, the form of which is filed as Exhibit 10.17 to the Registration Statement and (the Prospectus present fairly the consolidated financial position of the Company and its subsidiaries as of the dates indicated and their consolidated results of operations and changes in financial position an“Non-competition Agreements”);
Appears in 1 contract
Sources: Underwriting Agreement (Meruelo Maddux Properties, Inc.)
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, represent and warrant toto the Underwriters, and agree with the Agent as of the date of this Agreement, as of each Representation Date (as defined below)hereof, as of the time of each sale of Placement Shares pursuant to this Agreement Closing Time and as of each Settlement Dateany Date of Delivery, unless such representation, warranty or agreement specifies a different date or timethat:
a. (i) the Company has the an authorized and outstanding capitalization as set forth in both the Registration Statement Prospectus and the ProspectusDisclosure Package; the outstanding shares of capital stock of the Company and NRFC Sub-REIT Corp., a Maryland corporation and a subsidiary of the Operating Partnership (the “Private REIT”), have been duly and validly authorized and issued and are fully paid and non-assessable. All nonassessable;
(ii) the outstanding partnership interests of the outstanding shares of capital stock, partnership interests and membership interests, as the case may be, of the subsidiaries of the Company identified on Schedule 4 hereto (each, a “Subsidiary”) Operating Partnership have been duly and validly authorized and are validly issued, fully paid and non-assessable securities thereof and, except as disclosed in the Prospectus, ; all of the outstanding shares of capital stock, partnership interest or membership interests, as the case may be, common stock of the Subsidiaries Private REIT are directly or and indirectly owned of record and beneficially by the Operating Partnership and the Company; , respectively;
(iii) except as disclosed in both the ProspectusProspectus and the Disclosure Package, there are no outstanding (iA) securities or obligations of the Company or any the subsidiaries of the Subsidiaries Company required to be set forth in Exhibit 21.1 to the Company’s Annual Report on Form 10-K for the year ended December 31, 2013 (the “Subsidiaries”), convertible into or exchangeable for any capital stock of or partnership interests, membership interests or other equity interests, as the case may be, in the Company or any such Subsidiary, (iiB) warrants, rights or options to subscribe for or purchase from the Company or any such Subsidiary any such capital stock or any such convertible or exchangeable securities or obligations, or (iiiC) obligations of the Company or any such Subsidiary to issue any shares of capital stocksecurities or obligations, any such convertible or exchangeable securities or obligationobligations, or any such warrants, rights or options; all issued options the existence of which, in each case of (A), (B) and outstanding units of partnership interest (C), is required to be disclosed in the Operating Partnership (“Units”) owned by Prospectus and the Company Disclosure Package and are owned free and clear of any perfected security interest or any other security interests, claims, liens or encumbrancesnot so disclosed;
b. (iv) each of the Company and each of the Subsidiaries has been duly incorporated, formed incorporated or organized and is validly existing as a corporation, general or limited partnership or limited liability company company, as the case may be, except to the extent, in the case of the Subsidiaries, that the failure to be so organized would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect and is in good standing under the laws of its respective jurisdiction of incorporation, formation incorporation or organization with full power except to the extent that the failure to be in good standing would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
(v) each of the Company and the Subsidiaries has the corporate, partnership or limited liability company power, as the case may be, and authority to own its their respective properties and to conduct its their respective businesses businesses, each as described in each of the Registration Statement Statement, the Prospectus and the ProspectusDisclosure Package except to the extent that the failure to have such power or authority would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, and, in the case of the Company and the Operating Partnership, to execute and deliver this Agreement and to consummate the transactions contemplated herein and to perform its obligations under the Amended and Restated Management described in this Agreement, dated October 27, 2015, by and among the Company, the Operating Partnership and the Manager (the “Management Agreement”);
c. (vi) the Company and each of the Subsidiaries is are duly qualified or licensed and in good standing in each jurisdiction in which it conducts its businesses where such qualification or in which it owns or leases real property or otherwise maintains an office and in which license is required except where the failure, individually or in the aggregate, to be so qualified or licensed would not reasonably be expected to have a material adverse effect on the assets, business, operations, earnings, prospects, properties or condition (financial or otherwise) of the Company and the Subsidiaries taken as a whole, (any such effect or change, where the context so requires, is hereinafter called a “Material Adverse Effect” or “Material Adverse Change”); ;
(vii) except as disclosed in both the ProspectusProspectus and the Disclosure Package, no Subsidiary the Operating Partnership is neither contractually prohibited or nor contractually restricted, directly or indirectly, from paying dividends to the Company, or from making any other distribution with respect to such Subsidiarythe Operating Partnership’s partnership interests or from repaying to the Company or another subsidiary of the Company any amounts which may from time to time become due under any loans or advances to the Operating Partnership from the Company or another subsidiary of the Company, or from transferring the Operating Partnership’s property or assets to the Company or another subsidiary of the Company;
(viii) except as disclosed in both the Prospectus and the Disclosure Package, the Private REIT is neither contractually prohibited nor contractually restricted, directly or indirectly, from paying dividends to the Operating Partnership, or from making any other distribution with respect to the Private REIT’s shares of capital stock or from repaying to the Company, the Operating Partnership or another subsidiary of the Company any amounts which may from time to time become due under any loans or advances to the Private REIT from the Company, the Operating Partnership or another subsidiary of the Company, or from transferring the Private REIT’s property or assets to the Company, the Operating Partnership or another subsidiary of the Company;
(ix) except as disclosed in both the Prospectus and the Disclosure Package, no Subsidiary (other than the Operating Partnership and the Private REIT, which are covered above) is contractually prohibited or restricted, directly or indirectly, from paying dividends to the Operating Partnership or the Private REIT, to the extent such Subsidiary is a direct subsidiary of the Operating Partnership or the Private REIT, or from making any other distribution with respect to the outstanding membership interests of such Subsidiary or from repaying to the Company, the Operating Partnership or another subsidiary of the Company any amounts which may from time to time become due under any loans or advances to such Subsidiary from the Company Company, the Operating Partnership or such other Subsidiaryanother subsidiary of the Company, or from transferring any such Subsidiary’s property or assets to the Company, the Operating Partnership or another subsidiary of the Company except for any such prohibitions and restrictions that would not, individually or in the aggregate, reasonably be expected to any other Subsidiary; other than have a Material Adverse Effect;
(x) the Agreement of Limited Partnership of the Operating Partnership, dated as of October 19, 2004, as amended (the “Partnership Agreement”), has been duly and validly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally or by general principles of equity, and except to the extent that the indemnification and contribution provisions thereof may be limited by federal or state securities laws and public policy considerations in respect thereof;
(xi) the Company is the sole general partner of the Operating Partnership and owns units of partnership interest in the Operating Partnership (“OP Units”) representing an ownership interest in the Operating Partnership in the percentage set forth in both the Prospectus and the Disclosure Package, and, except as disclosed in the Prospectus, the Company Prospectus and the Operating Partnership do not ownDisclosure Package, directly or indirectlysuch ownership interest is free and clear of any pledge, any capital stock lien, encumbrance, security interest or other equity securities of claim except for any other corporation or any ownership pledge, lien, encumbrance, security interest in any partnership, joint venture or other associationclaim that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
d. the Company and the Subsidiaries are in compliance in all material respects with all applicable laws, rules, regulations, orders, decrees and judgments, including those relating to transactions with affiliates;
e. (xii) neither the Company nor any Subsidiary is in breach of or in default under (nor has any event occurred which with notice, lapse of time, or both would constitute a breach of, or default under), (i) its respective charterorganizational documents, bylaws, agreement of limited partnership, operating agreement or other similar organizational documents (the “Organizational Documents”), (ii) in the performance or observance of any obligation, agreement, covenant or condition contained in any license, indenture, mortgage, deed of trust, loan or credit agreement or other agreement or instrument to which the Company or any Subsidiary is a party or by which any of them or their respective properties or assets is bound, or (iii) any federal, state, local or foreign law, regulation or rule or any decree, judgment, permit or order (each, a “Law”) applicable to the Company or any Subsidiary, except, in the case of clauses (ii) and (iii) above, except for such breaches or defaults which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
f. (xiii) the execution, delivery and performance of this Agreement, the issuance of the shares of common stock, par value $0.01 per share (the “Common Stock”) of the Company, to be issued upon conversion of the Shares (the “Conversion Shares”) and consummation of the transactions contemplated herein do not and will not (A) conflict with, or result in any breach of, or constitute a default under (nor constitute any event which with notice, lapse of time, or both would constitute a breach of, or default under), ): (i1) any provision of the Organizational Documents organizational documents of the Company or any Subsidiary, or (ii2) any provision of any license, indenture, mortgage, deed of trust, loan or credit agreement or other agreement or instrument to which the Company or any Subsidiary is a party or by which any of them or their respective assets or properties may be bound or affected, or under any Law federal, state, local or foreign law, regulation or rule or any decree, judgment or order applicable to the Company or any Subsidiary, except in the case of this clause (ii2) for such breaches or defaults which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse EffectEffect and which would not reasonably be expected to have a material adverse effect on the Company and the Operating Partnership’s ability to perform their agreed upon obligations under the Agreement; or (B) result in the creation or imposition of any lien, charge, claim or encumbrance upon any property or asset of the Company or any Subsidiary, except for such liens, charges, claims or encumbrances which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
g. (xiv) this Agreement and the Management Agreement have has been duly authorized, executed and delivered by each of the Company and the Operating Partnership and each is a legal, valid and binding agreement of each of the Company and the Operating Partnership enforceable against the Company and the Operating Partnership in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, and generally or by general equitable principlesprinciples of equity, and except to the extent that the indemnification and contribution provisions of Section 12 9 hereof may be limited by federal or state securities laws and public policy considerations in respect thereof;
h. (xv) no approval, authorization, consent or order of or filing with any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency is required in connection with the Company’s or the Operating Partnership’s execution, delivery and performance of this Agreement Agreement, the consummation of the transactions contemplated herein by the Company or the Operating Partnership, their consummation of the transactions contemplated herein, and including the Company’s issuance, sale and delivery of the Placement Shares, other than (A) such as have been obtained, or will have been obtained at the Closing Time or the relevant Settlement DateDate of Delivery, as the case may be, under the Securities Act and the Exchange Act, (B) such approvals as have been obtained in connection with the approval of the listing of the Placement Shares on the Exchange, (C) such as have been obtained or made under the rules and regulations of the Financial Industry Regulatory Authority (“FINRA”) and (D) any necessary qualification under the securities or “blue sky sky” laws of the various jurisdictions in which the Placement Shares are being offered by the AgentUnderwriters, or (C) any such approvals, authorizations, consents, orders, or filings that if not obtained or made, would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect and which would not reasonably be expected to have a material adverse effect on the Company and the Operating Partnership’s ability to perform their agreed upon obligations under this Agreement;
i. (xvi) each of the Company and the Subsidiaries has all necessary licenses, authorizations, consents and approvals and has made all necessary filings required under any Lawfederal, state, local or foreign law, regulation or rule, and has obtained all necessary authorizations, consents and approvals from other persons, required in order to conduct their respective businesses as described in both the Registration Statement Prospectus and the ProspectusDisclosure Package, except to the extent that any failure to have any such licenses, authorizations, consents or approvals, to make any such filings or to obtain any such authorizations, consents or approvals would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; neither the Company nor any of the Subsidiaries is required by any applicable law to obtain accreditation or certification from any governmental agency or authority in order to provide the products and services which it currently provides or which it proposes to provide as set forth in the Registration Statement and the Prospectus; neither the Company, nor any of the Subsidiaries is in violation of, in default under, or has received any notice regarding a possible violation, default or revocation of any such license, authorization, consent or approval or any federal, state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Company or any of the Subsidiaries the effect of which could would reasonably be expected to result in a Material Adverse Change; and no such license;
(A) at the time of filing the Original Registration Statement, authorization, consent or approval contains a materially burdensome restriction that is not adequately disclosed in each (B) at the time of the most recent amendment to the Registration Statement for the purposes of complying with Section 10(a)(3) of the Securities 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) and the Prospectus;
j. (C) at any time the Company meets or any person acting on its behalf (within the requirements meaning, for use this clause only, of Form S-3 under Rule 163(c) of the Securities ActAct Regulations) made any offer relating to the Shares in reliance on the exemption of Rule 163 of the Securities Act Regulations (“Rule 163”), the Company was and is a “well-known seasoned issuer” as defined in Rule 405, including not having been and not being an “ineligible issuer” as defined in Rule 405; the Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 and the Shares, since their registration on the Registration Statement, have been and remain eligible for registration by the Company on a Rule 405 “automatic shelf registration statement”; and the Company has become effective under not received from the Commission any notice pursuant to Rule 401(g)(2) of the Securities Act Regulations objecting to the use of the automatic shelf registration statement form;
(xviii) the Original Registration Statement became effective upon filing under Rule 462(e) on February 19, 2013, and any post-effective amendment thereto also became effective upon filing under Rule 462(e); no stop order suspending the effectiveness or the use of the Registration Statement has been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Company, are contemplated or threatened by the Commission; , and the Company has complied to the Commission’s satisfaction with any request on the part of the Commission for additional informationinformation have been complied with;
k. (xix) any offer that is a written communication relating to the Shares made by the Company or any person acting on its behalf (within the meaning, for this sentence only, of Rule 163(c)) prior to the filing of the Original Registration Statement as has been filed with the Commission in accordance with Rule 163 and otherwise complied with the requirements of Rule 163, including without limitation the legending requirement, to qualify such offer for the exemption from Section 5(c) of the Securities Act provided by Rule 163;
(xx) at the respective times the Original Registration Statement became effective and each effective date (including amendment thereto became effective, at each deemed effective date with respect to the Agent Underwriters pursuant to Rule 430B or otherwise under 430B(f)(2) of the Securities Act) Act Regulations and as of the date hereof, complied or will comply, and the Prospectus and any further amendments or supplements to the Registration Statement or the Prospectus at the time they were filed with the Commission, were, or will, when they become effective or are filed with the Commission, as the case may be, comply, in all material respects with the requirements of the Securities Act, including Rule 415; the documents incorporated by reference in the Registration Statement and the Prospectus, when they became effective or at the time they were or hereafter are filed with the Commission, any amendments thereto complied and will comply in all material respects with the requirements of the Exchange Act;
l. the Registration Statement, as of each effective date (including each deemed effective date with respect to the Agent pursuant to Rule 430B or otherwise under Securities Act and the Securities Act)Act Regulations, and as of the date hereof, and at each Settlement Date, did not, and does not or will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and the Prospectus or any amendment or supplement thereto will not, as of its issue date, as of the applicable filing date, as of the date hereof and at each Settlement Date, contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no warranty or representation with respect to any statement contained in or omitted from the Registration Statement or the Prospectus any amendment thereto in reliance upon and in conformity with the information concerning the Agent Underwriters and furnished in writing by or on behalf of the Agent to the Company expressly for use therein; the documents incorporated by reference in the Registration Statement and the Prospectus, at the time the Registration Statement became effective or when such documents incorporated by reference were filed with the Commission, as the case may be, when read together with the other information in the Registration Statement or the Prospectus, as the case may be, did not and will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
m. as of the issue date or date of first use and at all subsequent times through each Settlement Date, each Issuer Free Writing Prospectus did not, and at the time of each sale of Placement Shares and at the Settlement date, each such Issuer Free Writing Prospectus will not, contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
n. each Issuer Free Writing Prospectus, if any, as of its issue date and at all subsequent times Underwriters through the completion of the public offer and sale of the Placement Shares did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein, and any other prospectus deemed to be a part thereof that has not been superseded or modified;
o. the Company is eligible to use Free Writing Prospectuses in connection with this offering pursuant to Rules 164 and 433 under the Securities Act; any Free Writing Prospectus that the Company is required to file pursuant to Rule 433(d) has been, or will be, filed with the Commission in accordance with the requirements of the Securities Act; and each Free Writing Prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d) or that was prepared by or on behalf of or used by the Company complies or will comply in all material respects with the requirements of the Securities Act;
p. except for any Issuer Free Writing Prospectuses, the Company has not prepared, used or referred to, and will not, without the prior consent of the Agent, prepare, use or refer to, any Free Writing Prospectus;
q. the Prospectus and any Issuer Free Writing Prospectuses (to the extent any such Issuer Free Writing Prospectus was required to be filed with the Commission) delivered to the Agent for use in connection with the public offering of the Placement Shares contemplated herein have been and will be identical to the versions of such documents transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T under the Securities Act;
r. the Company filed the Registration Statement with the Commission before using any Issuer Free Writing Prospectus;
s. there are no actions, suits, proceedings, inquiries or investigations pending or, to the knowledge of the Company or the Operating Partnership, threatened against the Company or any Subsidiary or any of their respective officers and directors or to which the properties, assets or rights of any such entity are subject, at law or in equity, before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority, arbitral panel or agency which could result in a judgment, decree, award or order having a Material Adverse Effect;
t. the consolidated financial statements, including the notes thereto, included in each of the Registration Statement and the Prospectus present fairly the consolidated financial position of the Company and its subsidiaries as of the dates indicated and their consolidated results of operations and changes in financial position anRepresentatives
Appears in 1 contract
Sources: Underwriting Agreement (Northstar Realty Finance Corp.)
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, represent and warrant toto the Underwriters, and agree with the Agent as of the date of this Agreement, as of each Representation Date (as defined below)hereof, as of the time of each sale of Placement Shares pursuant to this Agreement Closing Time and as of each Settlement Dateany Date of Delivery, unless such representation, warranty or agreement specifies a different date or timethat:
a. (i) the Company has the an authorized and outstanding capitalization as set forth in both the Registration Statement Prospectus and the ProspectusDisclosure Package; the outstanding shares of capital stock of the Company and NRFC Sub-REIT Corp., a Maryland corporation and a subsidiary of the Operating Partnership (the “Private REIT”), have been duly and validly authorized and issued and are fully paid and non-assessable. All nonassessable;
(ii) the outstanding partnership interests of the outstanding shares of capital stock, partnership interests and membership interests, as the case may be, of the subsidiaries of the Company identified on Schedule 4 hereto (each, a “Subsidiary”) Operating Partnership have been duly and validly authorized and are validly issued, fully paid and non-assessable securities thereof and, except as disclosed in the Prospectus, ; all of the outstanding shares of capital stock, partnership interest or membership interests, as the case may be, stock of the Subsidiaries Private REIT are directly or and indirectly owned of record and beneficially by the Operating Partnership and the Company; , respectively;
(iii) except as disclosed in both the ProspectusProspectus and the Disclosure Package, there are no outstanding (iA) securities or obligations of the Company or any the subsidiaries of the Subsidiaries Company required to be set forth in Exhibit 21.1 to the Company’s Form 10-K for the fiscal year ended December 31, 2011 (the “Subsidiaries”), convertible into or exchangeable for any capital stock of or partnership interests, membership interests or other equity interests, as the case may be, in the Company or any such Subsidiary, (iiB) warrants, rights or options to subscribe for or purchase from the Company or any such Subsidiary any such capital stock or any such convertible or exchangeable securities or obligations, or (iiiC) obligations of the Company or any such Subsidiary to issue any shares of capital stocksecurities or obligations, any such convertible or exchangeable securities or obligationobligations, or any such warrants, rights or options; all issued options the existence of which, in each case of (A), (B) and outstanding units of partnership interest (C), is required to be disclosed in the Operating Partnership (“Units”) owned by Prospectus and the Company Disclosure Package and are owned free and clear of any perfected security interest or any other security interests, claims, liens or encumbrancesnot so disclosed;
b. (iv) each of the Company and each of the Subsidiaries has been duly incorporated, formed incorporated or organized and is validly existing as a corporation, general or limited partnership or limited liability company company, as the case may be, except to the extent, in the case of the Subsidiaries, that the failure to be so organized would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect and is in good standing under the laws of its respective jurisdiction of incorporation, formation incorporation or organization with full power except to the extent that the failure to be so qualified or in good standing would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
(v) each of the Company and the Subsidiaries has the corporate, partnership or limited liability company power, as the case may be, and authority to own its their respective properties and to conduct its their respective businesses businesses, each as described in each of the Registration Statement Statement, the Prospectus and the ProspectusDisclosure Package except to the extent that the failure to have such power or authority would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, and, in the case of the Company and the Operating Partnership, to execute and deliver this Agreement and to consummate the transactions contemplated herein and to perform its obligations under the Amended and Restated Management described in this Agreement, dated October 27, 2015, by and among the Company, the Operating Partnership and the Manager (the “Management Agreement”);
c. (vi) the Company and each of the Subsidiaries is are duly qualified or licensed and in good standing in each jurisdiction in which it conducts its businesses where such qualification or in which it owns or leases real property or otherwise maintains an office and in which license is required except where the failure, individually or in the aggregate, to be so qualified or licensed would not reasonably be expected to have a material adverse effect on the assets, business, operations, earnings, prospects, properties or condition (financial or otherwise) of the Company and the Subsidiaries taken as a whole, (any such effect or change, where the context so requires, is hereinafter called a “Material Adverse Effect” or “Material Adverse Change”); ;
(vii) except as disclosed in both the ProspectusProspectus and the Disclosure Package, no Subsidiary the Operating Partnership is neither contractually prohibited or nor contractually restricted, directly or indirectly, from paying dividends to the Company, or from making any other distribution with respect to such Subsidiarythe Operating Partnership’s partnership interests or from repaying to the Company or another subsidiary of the Company any amounts which may from time to time become due under any loans or advances to the Operating Partnership from the Company or another subsidiary of the Company, or from transferring the Operating Partnership’s property or assets to the Company or another subsidiary of the Company;
(viii) except as disclosed in both the Prospectus and the Disclosure Package, the Private REIT is neither contractually prohibited nor contractually restricted, directly or indirectly, from paying dividends to the Operating Partnership, or from making any other distribution with respect to the Private REIT’s shares of capital stock or from repaying to the Company, the Operating Partnership or another subsidiary of the Company any amounts which may from time to time become due under any loans or advances to the Private REIT from the Company, the Operating Partnership or another subsidiary of the Company, or from transferring the Private REIT’s property or assets to the Company, the Operating Partnership or another subsidiary of the Company;
(ix) except as disclosed in both the Prospectus and the Disclosure Package, no Subsidiary (other than the Operating Partnership and the Private REIT, which are covered above) is contractually prohibited or restricted, directly or indirectly, from paying dividends to the Operating Partnership or the Private REIT, to the extent such Subsidiary is a direct subsidiary of the Operating Partnership or the Private REIT, or from making any other distribution with respect to the outstanding membership interests of such Subsidiary or from repaying to the Company, the Operating Partnership or another subsidiary of the Company any amounts which may from time to time become due under any loans or advances to such Subsidiary from the Company Company, the Operating Partnership or such other Subsidiaryanother subsidiary of the Company, or from transferring any such Subsidiary’s property or assets to the Company, the Operating Partnership or another subsidiary of the Company except for any such prohibitions and restrictions that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect or to the extent that any other Subsidiary; other than such restriction would currently materially limit the Company’s ability to pay dividends or that would be reasonably likely to materially limit the future payment of dividends on Preferred Stock;
(x) the Agreement of Limited Partnership of the Operating Partnership, dated as of October 19, 2004, as amended (the “Partnership Agreement”), has been duly and validly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally or by general principles of equity, and except to the extent that the indemnification and contribution provisions thereof may be limited by federal or state securities laws and public policy considerations in respect thereof;
(xi) the Company is the sole general partner of the Operating Partnership and owns units of partnership interest in the Operating Partnership (“OP Units”) representing an ownership interest in the Operating Partnership in the percentage set forth in both the Prospectus and the Disclosure Package, and, except as disclosed in the Prospectus, the Company Prospectus and the Operating Partnership do not ownDisclosure Package, directly or indirectlysuch ownership interest is free and clear of any pledge, any capital stock lien, encumbrance, security interest or other equity securities of claim except for any other corporation or any ownership pledge, lien, encumbrance, security interest in any partnership, joint venture or other associationclaim that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
d. the Company and the Subsidiaries are in compliance in all material respects with all applicable laws, rules, regulations, orders, decrees and judgments, including those relating to transactions with affiliates;
e. (xii) neither the Company nor any Subsidiary is in breach of or in default under (nor has any event occurred which with notice, lapse of time, or both would constitute a breach of, or default under), (i) its respective charterorganizational documents, bylaws, agreement of limited partnership, operating agreement or other similar organizational documents (the “Organizational Documents”), (ii) in the performance or observance of any obligation, agreement, covenant or condition contained in any license, indenture, mortgage, deed of trust, loan or credit agreement or other agreement or instrument to which the Company or any Subsidiary is a party or by which any of them or their respective properties or assets is bound, or (iii) any federal, state, local or foreign law, regulation or rule or any decree, judgment, permit or order (each, a “Law”) applicable to the Company or any Subsidiary, except, in the case of clauses (ii) and (iii) above, except for such breaches or defaults which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
f. (xiii) the execution, delivery and performance of this Agreement, the issuance of the shares of common stock, par value $0.01 per share (the “Common Stock”) of the Company, to be issued upon conversion of the Shares (the “Conversion Shares”) and consummation of the transactions contemplated herein do not and will not (A) conflict with, or result in any breach of, or constitute a default under (nor constitute any event which with notice, lapse of time, or both would constitute a breach of, or default under), ): (i1) any provision of the Organizational Documents organizational documents of the Company or any Subsidiary, or (ii2) any provision of any license, indenture, mortgage, deed of trust, loan or credit agreement or other agreement or instrument to which the Company or any Subsidiary is a party or by which any of them or their respective assets or properties may be bound or affected, or under any Law federal, state, local or foreign law, regulation or rule or any decree, judgment or order applicable to the Company or any Subsidiary, except in the case of this clause (ii2) for such breaches or defaults which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse EffectEffect and which would not reasonably be expected to have a material adverse effect on the Company and the Operating Partnership’s ability to perform their agreed upon obligations under the Agreement; or (B) result in the creation or imposition of any lien, charge, claim or encumbrance upon any property or asset of the Company or any Subsidiary, except for such liens, charges, claims or encumbrances which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
g. (xiv) this Agreement and the Management Agreement have has been duly authorized, executed and delivered by each of the Company and the Operating Partnership and each is a legal, valid and binding agreement of each of the Company and the Operating Partnership enforceable against the Company and the Operating Partnership in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, and by general equitable principles, and except to the extent that the indemnification and contribution provisions of Section 12 9 hereof may be limited by federal or state securities laws and public policy considerations in respect thereof;
h. (xv) no approval, authorization, consent or order of or filing with any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency is required in connection with the Company’s or the Operating Partnership’s execution, delivery and performance of this Agreement Agreement, the consummation of the transactions contemplated herein by the Company or the Operating Partnership, their consummation of the transactions contemplated herein, and including the Company’s issuance, sale and delivery of the Placement Shares, other than (A) such as have been obtained, or will have been obtained at the Closing Time or the relevant Settlement DateDate of Delivery, as the case may be, under the Securities Act and the Exchange Act, (B) such approvals as have been obtained in connection with the approval of the listing of the Placement Shares on the Exchange, (C) such as have been obtained or made under the rules and regulations of the Financial Industry Regulatory Authority (“FINRA”) and (D) any necessary qualification under the securities or “blue sky sky” laws of the various jurisdictions in which the Placement Shares are being offered by the AgentUnderwriters, or (C) any such approvals, authorizations, consents, orders, or filings that if not obtained or made, would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect and which would not reasonably be expected to have a material adverse effect on the Company and the Operating Partnership’s ability to perform their agreed upon obligations under this Agreement;
i. (xvi) each of the Company and the Subsidiaries has all necessary licenses, authorizations, consents and approvals and has made all necessary filings required under any Lawfederal, state, local or foreign law, regulation or rule, and has obtained all necessary authorizations, consents and approvals from other persons, required in order to conduct their respective businesses as described in both the Registration Statement Prospectus and the ProspectusDisclosure Package, except to the extent that any failure to have any such licenses, authorizations, consents or approvals, to make any such filings or to obtain any such authorizations, consents or approvals would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; neither the Company nor any of the Subsidiaries is required by any applicable law to obtain accreditation or certification from any governmental agency or authority in order to provide the products and services which it currently provides or which it proposes to provide as set forth in the Registration Statement and the Prospectus; neither the Company, nor any of the Subsidiaries is in violation of, in default under, or has received any notice regarding a possible violation, default or revocation of any such license, authorization, consent or approval or any federal, state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Company or any of the Subsidiaries the effect of which could would reasonably be expected to result in a Material Adverse Change; and no such license, authorization, consent or approval contains a materially burdensome restriction that is not adequately disclosed in each of the Registration Statement and the Prospectus;
j. the Company meets the requirements for use of Form S-3 under the Securities Act; (xvii) the Registration Statement has become been declared effective under the Securities Act and by the Commission; the Rule 462(b) Registration Statement, if any, is effective; no stop order suspending the effectiveness or the use of the Registration Statement Statement, including any Rule 462(b) Registration Statement, has been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Company, are contemplated or threatened by the Commission; and the Company has complied to the Commission’s satisfaction with any request on the part of the Commission for additional information;
k. (xviii) the Registration Statement Preliminary Prospectus, as of each effective its date (including each deemed effective date with respect to the Agent pursuant to Rule 430B or otherwise under the Securities Act) and as of the date hereof, complied or complies, the Registration Statement, as of each effective date and as of the date hereof, complied, complies or will complycomply in all material respects, and the Prospectus as of its date and any further amendments or supplements to the Registration Statement Statement, the Preliminary Prospectus or the Prospectus at the time they were filed with the Commission, were, or willwill comply in all material respects, when they become effective or are filed with the Commission, as the case may be, comply, in all material respects with the requirements of the Securities Act, including Rule 415; the documents incorporated by reference in the Registration Statement Act and the Prospectus, when they became effective or at the time they were or hereafter are filed with the Commission, complied and will comply in all material respects with the requirements of the Exchange Act;
l. Securities Act Regulations; the Registration Statement, as of each effective date (including each deemed effective date with respect to the Agent pursuant to Rule 430B or otherwise under the Securities Act), and as of the date hereof, and at each Settlement Datedate, did not, and does not or will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; the Preliminary Prospectus, as of its date, did not contain and the Prospectus or any amendment or supplement thereto will notthereto, as of its issue datetheir respective dates, as of the applicable filing date, as of the date hereof hereof, the Closing Time and at on each Settlement DateDate of Delivery (if any), will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no warranty or representation with respect to any statement contained in or omitted from the Registration Statement Statement, the Preliminary Prospectus or the Prospectus or any amendment or supplement to any of the foregoing in reliance upon and in conformity with the information concerning the Agent Underwriters and furnished in writing by or on behalf of the Agent Underwriters through the Representatives to the Company expressly for use thereintherein (that information being limited to that described in the penultimate sentence of the first paragraph of Section 9(b) hereof);
(xix) for the purposes of this Agreement, the “Applicable Time” is 4:10 p.m. (New York City time) on the date of this Agreement; the documents incorporated by reference in Disclosure Package as of the Registration Statement and the Prospectus, at the time the Registration Statement became effective or when such documents incorporated by reference were filed with the Commission, as the case may be, when read together with the other information in the Registration Statement or the Prospectus, as the case may beApplicable Time, did not and will not include an any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
m. as of the issue date or date of first use and at all subsequent times through each Settlement Date, each Issuer Free Writing Prospectus did not, and at the time of each sale of Placement Shares and at the Settlement date, each such Issuer Free Writing Prospectus will not, contain an untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
n. ; and each Issuer Free Writing Prospectus, if any, as of its issue date and at all subsequent times through Prospectus included in the completion of the public offer and sale of the Placement Shares did not, Disclosure Package does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein, and any other prospectus deemed to be a part thereof that has not been superseded or modified;
o. the Company is eligible to use Free Writing Prospectuses in connection with this offering pursuant to Rules 164 and 433 under the Securities Act; any Free Writing Prospectus that the Company is required to file pursuant to Rule 433(d) has been, or will be, filed with the Commission in accordance with the requirements of the Securities Act; and each Free Writing Prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d) or that was prepared by or on behalf of or used by the Company complies or will comply in all material respects with the requirements of the Securities Act;
p. except for any Issuer Free Writing ProspectusesStatement, the Company has not prepared, used Preliminary Prospectus or referred to, and will not, without the prior consent of the Agent, prepare, use or refer to, any Free Writing Prospectus;
q. the Prospectus and any Issuer Free Writing Prospectuses (to the extent any each such Issuer Free Writing Prospectus was required to be filed Prospectus, as supplemented by and taken together with the Commission) delivered to other information comprising the Agent for use in connection with the public offering of the Placement Shares contemplated herein have been and will be identical to the versions of such documents transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T under the Securities Act;
r. the Company filed the Registration Statement with the Commission before using any Issuer Free Writing Prospectus;
s. there are no actions, suits, proceedings, inquiries or investigations pending or, to the knowledge of the Company or the Operating Partnership, threatened against the Company or any Subsidiary or any of their respective officers and directors or to which the properties, assets or rights of any such entity are subject, at law or in equity, before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority, arbitral panel or agency which could result in a judgment, decree, award or order having a Material Adverse Effect;
t. the consolidated financial statements, including the notes thereto, included in each of the Registration Statement and the Prospectus present fairly the consolidated financial position of the Company and its subsidiaries Disclosure Package as of the dates indicated and their consolidated results Applicable Time, did not include any untrue statement of operations and changes in financial position ana mate
Appears in 1 contract
Sources: Underwriting Agreement (Northstar Realty Finance Corp.)
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, represent and warrant to, and agree with the Agent as of the date of this Agreement, as of to each Representation Date (as defined below), as of the time of each sale of Placement Shares pursuant to this Agreement and as of each Settlement Date, unless such representation, warranty or agreement specifies a different date or timeUnderwriter that:
a. (a) the Company has the an authorized and outstanding capitalization as set forth in the Registration Statement and the Prospectus; the outstanding shares of capital stock stock, the partnership interests, membership interests or other equity interests, as the case may be, of the Company and each subsidiary of the Company, including the Operating Partnership (each, a "Subsidiary") have been duly and validly authorized and issued and are fully paid and non-assessable. All nonassessable; all of the outstanding shares of capital stockstock of or the partnership interests, partnership membership interests and membership interestsor other equity interests in the Subsidiaries (other than the Operating Partnership), as the case may be, of the subsidiaries of the Company identified on Schedule 4 hereto (each, a “Subsidiary”) have been duly authorized and are validly issued, fully paid and non-assessable securities thereof and, except as disclosed in the Prospectus, all of the outstanding shares of capital stock, partnership interest or membership interests, as the case may be, of the Subsidiaries are directly or indirectly owned of record and beneficially by the Company; except as disclosed in the Prospectus, there are no outstanding (i) securities or obligations of the Company or any of the Subsidiaries convertible into or exchangeable for any capital stock of or partnership interests, membership interests or other equity interests, as the case may be, in the Company or any such Subsidiary, (ii) warrants, rights or options to subscribe for or purchase from the Company or any such Subsidiary any such capital stock or any such convertible or exchangeable securities or obligations, or (iii) obligations of the Company or any such Subsidiary to issue any shares of capital stocksecurities or obligations, any such convertible or exchangeable securities or obligationobligations, or any such warrants, rights or options; all issued and outstanding units of partnership interest in the Operating Partnership (“Units”) owned by the Company are owned free and clear of any perfected security interest or any other security interests, claims, liens or encumbrances;
b. (b) each of the Company and each of the Subsidiaries (all of which Subsidiaries are named in Exhibit 21.1 to the Registration Statement) has been duly incorporated, formed incorporated or organized and is validly existing as a corporation, general or limited partnership or limited liability company company, as the case may be, in good standing under the laws of its respective jurisdiction of incorporation, formation incorporation or organization with full corporate, partnership or limited liability company power and authority to own its respective properties and to conduct its respective businesses business as described in each of the Registration Statement and the Prospectus, and, Prospectus and in the case of the Company Company, to execute and deliver this Agreement and the Warrant Agreement and in the case of the Operating Partnership, to execute and deliver this Agreement Agreement, and to consummate the transactions contemplated herein and to perform its obligations under the Amended and Restated Management Agreement, dated October 27, 2015, by and among the Company, the Operating Partnership and the Manager (the “Management Agreement”)described in each such agreement;
c. (c) each of the Company and each of the Subsidiaries is duly qualified or licensed to conduct business and is in good standing in each jurisdiction in which it conducts the conduct of its businesses business or in which it owns or leases the ownership of its real property or otherwise maintains an office and requires such qualification except for such jurisdictions in which the failure, individually or in the aggregate, to be so qualified or licensed would could not reasonably be expected to have a material adverse effect on the assets, business, operations, earnings, prospects, properties or condition (financial or otherwise) ), of the Company and the Subsidiaries Subsidiaries, taken as a whole, whole (any such effect or change, where the context so requires, is hereinafter called a “"Material Adverse Effect” or “Material Adverse Change”"); except as disclosed in the Prospectus, no Subsidiary is prohibited or restricted, directly or indirectly, from paying dividends to the Company, or from making any other distribution with respect to such Subsidiary’s 's capital stock stock, partnership interests, membership interests or other equity interests, as the case may be, from repaying to the Company or any other Subsidiary any amounts which may from time to time become due under any loans or advances to such Subsidiary from the Company or such other Subsidiary, or from transferring any such Subsidiary’s 's property or assets to the Company or to any other Subsidiary; other than except as disclosed in the Prospectus, the Company and the Operating Partnership do does not own, directly or indirectly, any capital stock or other equity securities of any other corporation or any ownership interest in any partnership, limited liability company, joint venture or other associationentity;
d. (d) the Agreement of Limited Partnership of the Operating Partnership (the "Partnership Agreement") has been duly and validly authorized, executed and delivered by or on behalf of the partners of the Operating Partnership and constitutes a valid and binding agreement of the parties thereto, enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally or by general principles of equity;
(e) upon completion of the offering of Shares, the Company and a wholly- owned subsidiary of the Company will be the holder of OP Units representing an ownership interest in the Operating Partnership in the amounts described in the Prospectus, free and clear of any pledge, lien encumbrance, security interest or other claim and a wholly-owned subsidiary of the Company will be the sole general partner of the Operating Partnership;
(f) the Company and the Subsidiaries are in compliance in all material respects with all applicable laws, rules, regulations, orders, decrees and judgments, including those relating to transactions with affiliatesaffiliates except where such failure to be in compliance would not have a Material Adverse Effect;
e. (g) neither the Company nor any Subsidiary of the Subsidiaries is in breach of or in default under (nor has any event occurred which with notice, lapse of time, or both would constitute a breach of, or default under), (i) its respective charterorganizational documents, bylaws, agreement of limited partnership, operating agreement or other similar organizational documents (the “Organizational Documents”), (ii) in the performance or observance of any obligation, agreement, covenant or condition contained in any license, indenture, mortgage, deed of trust, loan or credit agreement or other agreement or instrument to which the Company or any Subsidiary is a party or by which any of them or their respective properties is bound, or (iii) any federal, state, local or foreign law, regulation or rule or any decree, judgment, permit or order (each, a “Law”) applicable to the Company or any Subsidiary, except, in the case of clauses (ii) and (iii) above, except for such breaches or defaults which would not, individually or in the aggregate, could not have a Material Adverse Effect;
f. (h) the execution, delivery and performance of this Agreement, the Warrant Agreement and the other agreements listed as exhibits to the Registration Statement (the "Other Transaction Documents") by the Company and the Operating Partnership (to the extent a party thereto) and consummation by the Company and the Operating Partnership (to the extent a party thereto) of the transactions contemplated herein by this Agreement, the Warrant Agreement or the Other Transaction Documents do not and will not (A) conflict with, or result in any breach of, or constitute a default under (nor constitute any event which with notice, lapse of time, or both would constitute a breach of, or default under), ) (i) any provision of the Organizational Documents organizational documents of the Company or any Subsidiary, or (ii) any provision of any license, indenture, mortgage, deed of trust, loan or credit agreement or other agreement or instrument to which the Company or any Subsidiary is a party or by which any of them or their respective properties may be bound or affected, or under any Law U.S. federal, state, local or foreign law, regulation or rule or any decree, judgment or order applicable to the Company or any Subsidiary, except in the case of this clause (ii) for such breaches or defaults which would not, individually or in the aggregate, could not have a Material Adverse Effect; Effect or (B) result in the creation or imposition of any lien, charge, claim or encumbrance upon any property or asset of the Company or any Subsidiarythe Subsidiaries, except such conflicts, breaches or defaults that could not have a Material Adverse Effect;
g. (i) the execution, delivery and performance of the contribution agreements with respect to the partnership interests and limited liability company interests to be acquired by the Operating Partnership (collectively, the "Contribution Agreements") and the consummation of the transactions contemplated by the Contribution Agreements do not and will not (A) conflict with, or result in any breach of, or constitute a default under (nor constitute any event which with notice, lapse of time, or both would constitute a breach of or default under), (i) any provisions of the charter or by-laws or other organizational documents of Barcelo Crestline Corporation or any of its affiliates (each, a "Transferor") pursuant to the Contribution Agreements, (ii) any provision of any license, indenture, mortgage, deed of trust, loan, credit or other agreement or instrument to which a Transferor is a party or by which any of such Transferor or its properties or assets may be bound or affected, (iii) any law or regulation binding upon or applicable to a Transferor or any of its properties or assets or (iv) any decree, judgment or order applicable to a Transferor or (B) result in the creation or imposition of any lien, charge, claim or encumbrance upon any property or assets of a Transferor;
(j) this Agreement and the Management Agreement have has been duly authorized, executed and delivered by the Company and the Operating Partnership and each is a legal, valid and binding agreement of the Company and the Operating Partnership enforceable in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ ' rights generally, and by general principles of equity, and except to the extent that the indemnification and contribution provisions of Section 9 hereof may be limited by U.S. federal or state securities laws and public policy considerations in respect thereof;
(k) the Warrant Agreement and the Other Transaction Documents to which the Company or the Operating Partnership is a party have been duly authorized, executed and delivered by the Company and the Operating Partnership and are legal, valid and binding agreements of the Company and the Operating Partnership enforceable in accordance with their respective terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally, and by general equitable principles, and except to the extent that the indemnification and contribution provisions of Section 12 9 hereof may be limited by U.S. federal or state securities laws and public policy considerations in respect thereof;
h. (l) each Contribution Agreement has been duly authorized, executed and delivered by the Transferors (to the extent a party thereto) and is a legal, valid and binding agreement of the Transferors (to the extent a party thereto) enforceable in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally, and by general principles of equity, and except that enforceability of the indemnification and contribution provisions set forth in Section 9 of this Agreement may be limited by U.S. federal or state securities laws or public policy underlying such laws;
(m) no approval, authorization, consent or order of or filing with any U.S. federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency having jurisdiction over the Company (each, a "Governmental Authority") is required in connection with the execution, delivery and performance of this Agreement, the Warrant Agreement or the Registration Rights Agreement, the consummation of the transactions contemplated herein or therein by the Company or the Operating Partnership, their consummation of Partnership (to the transactions contemplated hereinextent a party thereto), and the Company’s 's sale and delivery of the Placement SharesShares and the Company's issuance of the Warrants or the Warrant Shares as contemplated hereby or in the Warrant Agreement, other than (A) such as have been obtained, or will have been obtained at or prior to the Closing Time or the relevant Settlement DateDate of Delivery, as the case may be, under the Securities Act and the Securities Exchange Act of 1934 (the "Exchange Act"), (B) such approvals as have been obtained in connection with the approval of the listing quotation of the Placement Shares on the Exchange, New York Stock Exchange and (C) such as have been obtained or made under the rules and regulations of the Financial Industry Regulatory Authority (“FINRA”) and (D) any necessary qualification under the securities or "blue sky sky" laws of the various jurisdictions in which the Placement Shares are being offered by the AgentUnderwriters;
i. (n) each of the Company and the Subsidiaries has all necessary licenses, authorizations, consents and approvals and has made all necessary filings required under any LawU.S. federal, state or local law, regulation or rule, and has obtained all necessary authorizations, consents and approvals from other persons, required in order to conduct their respective businesses its business as described in the Registration Statement and the Prospectus, except to the extent that any failure to have any such licenses, authorizations, consents or approvals, to make any such filings or to obtain any such authorizations, consents or approvals would could not, individually or in the aggregate, have a Material Adverse Effect; neither the Company nor any of the Subsidiaries is required by any applicable law to obtain accreditation or certification from any governmental agency or authority in order to provide the products and services which it currently provides or which it proposes to provide as set forth in the Registration Statement and the Prospectus; neither the Company, nor any of the Subsidiaries Subsidiary is in violation of, in default under, or has received any notice regarding a possible violation, default or revocation of any such license, authorization, consent or approval or any U.S. federal, state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Company or any of the Subsidiaries the effect of Subsidiary, which could result in have a Material Adverse Change; and no such license, authorization, consent or approval contains a materially burdensome restriction that is not adequately disclosed in Effect;
(o) each of the Registration Statement and the Prospectus;
j. the Company meets the requirements for use of Form S-3 under the Securities Act; the any Rule 462(b) Registration Statement has become effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement or any Rule 462(b) Registration Statement has been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Company, are contemplated or threatened by the Commission; , and the Company has complied to the Commission’s 's satisfaction with any request on the part of the Commission for additional information;
k. (p) the Preliminary Prospectus and the Registration Statement as of each effective date (including each deemed effective date with respect to the Agent pursuant to Rule 430B or otherwise under the Securities Act) and as of the date hereof, complied or will comply, and the Prospectus and any further amendments or supplements to the Registration Statement or the Prospectus at the time they were filed with the Commission, were, or thereto will, when they have become effective or are filed with the Commission, as the case may be, comply, in all material respects with the requirements of the Securities Act, including Rule 415Act and the Securities Act Regulations; the documents incorporated by reference in the Registration Statement and the Prospectus, when they became effective or at the time they were or hereafter are filed with the Commission, complied and will comply in all material respects with the requirements of the Exchange Act;
l. the Registration Statement, as of each effective date (including each deemed effective date with respect to the Agent pursuant to Rule 430B or otherwise under the Securities Act), and as of the date hereof, and at each Settlement Date, did not, and does not or any amendment thereto will not not, in each case as of the applicable effective date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and the Preliminary Prospectus does not, and the Prospectus or any amendment or supplement thereto will not, as of its issue date, as of the applicable filing date, as of the date hereof and at the Closing Time and on each Settlement DateDate of Delivery (if any), contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no warranty or representation with respect to any statement contained in or omitted from the Registration Statement or the Prospectus in reliance upon and in conformity with the information concerning the Agent Underwriters and furnished in writing by or on behalf of the Agent Underwriters through the Representative to the Company expressly for use therein; the documents incorporated by reference in the Registration Statement and the Prospectus, at the time the Registration Statement became effective or when such documents incorporated by reference were filed with the Commission, as the case may be, when read together with the other information in the Registration Statement or the Prospectus, as Prospectus (that information being limited to that described in the case may be, did not and will not include an untrue statement penultimate sentence of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleadingfirst paragraph of Section 9(c) hereof);
m. as of (q) the issue date or date of first Prospectus delivered to the Underwriters for use and at all subsequent times through each Settlement Date, each Issuer Free Writing Prospectus did not, and at the time of each sale of Placement Shares and at the Settlement date, each such Issuer Free Writing Prospectus will not, contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
n. each Issuer Free Writing Prospectus, if any, as of its issue date and at all subsequent times through the completion of the public offer and sale of the Placement Shares did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein, and any other prospectus deemed to be a part thereof that has not been superseded or modified;
o. the Company is eligible to use Free Writing Prospectuses in connection with this offering pursuant to Rules 164 and 433 under the Securities Act; any Free Writing Prospectus that the Company is required to file pursuant to Rule 433(d) has been, or will be, filed with the Commission in accordance with the requirements of the Securities Act; and each Free Writing Prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d) or that was prepared by or on behalf of or used by the Company complies or will comply in all material respects with the requirements of the Securities Act;
p. except for any Issuer Free Writing Prospectuses, the Company has not prepared, used or referred to, and will not, without the prior consent of the Agent, prepare, use or refer to, any Free Writing Prospectus;
q. the Prospectus and any Issuer Free Writing Prospectuses (to the extent any such Issuer Free Writing Prospectus was required to be filed with the Commission) delivered to the Agent for use in connection with the public offering of the Placement Shares contemplated herein have been and will be identical to the versions respective version of such documents the Prospectus created to be transmitted to the Commission for filing via the Electronic Data Gathering Analysis and Retrieval System ("▇▇▇▇▇"), except to the extent permitted by Regulation S-T under the Securities ActT;
r. the Company filed the Registration Statement with the Commission before using any Issuer Free Writing Prospectus;
s. (r) there are no actions, suits, proceedings, inquiries or investigations pending or, to the knowledge of the Company or the Operating PartnershipCompany, threatened against the Company or any Subsidiary or any of their respective officers and directors or to which the properties, assets or rights of any such entity are subject, at law or in equity, before or by any federal, state, local Governmental Authority or foreign governmental or regulatory commission, board, body, authority, arbitral panel or agency which could result in a judgment, decree, award or order having a Material Adverse Effect;
t. (s) the consolidated financial statements, including the notes thereto, included in each of the Registration Statement and the Prospectus present fairly the consolidated financial position of the Company and its subsidiaries entities to which such financial statements relate (the "Covered Entities") as of the dates indicated and their the consolidated results of operations and changes in financial position anand cash flows of the Covered Entities for the periods specified; such financial statement
Appears in 1 contract
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, represent and warrant to, and agree with to the Agent Underwriters as of the date of this Agreementhereof, as of each Representation Date (as defined below)the Applicable Time referred to in Section 3(o) hereof, and as of the time of each sale of Placement Shares pursuant Closing Time referred to this Agreement and as of each Settlement Datein Section 2 hereof, unless such representation, warranty or agreement specifies a different date or timethat:
a. (a) the Company has an authorized capitalization of 200 million shares of common stock, par value $.01 per share (the authorized “Common Stock”), and 50 million shares of preferred stock, par value $.01 per share (including the Series D Stock, the “Preferred Stock”) and an outstanding capitalization as set forth in the Registration Statement General Disclosure Package (as defined in Section 3(o) hereof) and the Prospectus; the outstanding shares of capital stock or partnership or membership interests, of the Company and each subsidiary of the Company, including the Operating Partnership and its subsidiaries (each, a “Subsidiary” and collectively, the “Subsidiaries”), as applicable, have been duly and validly authorized and issued and are fully paid and non-assessable. All of the outstanding and, with respect to shares of capital stock, partnership membership interests and membership limited partnership interests, as the case may be, of the subsidiaries of the Company identified on Schedule 4 hereto (each, a “Subsidiary”) have been duly authorized and are validly issued, fully paid and non-assessable securities thereof (except to the extent such non-assessability may be affected by Section 17-607 of the Delaware Revised Uniform Limited Partnership Act or Section 18-607 of the Delaware Limited Liability Company Act), and, except as disclosed in Exhibit A to the ProspectusAgreement of Limited Partnership of the Operating Partnership (the “Partnership Agreement”), all of the outstanding shares of capital stock, stock or partnership interest or membership interests, as the case may be, interests of the Subsidiaries are directly or indirectly owned of record and beneficially by the Company; , free and clear of any pledge, lien, encumbrance, security interest or other claim, except for security interests in favor of lenders created pursuant to or in connection with loan documents disclosed in the General Disclosure Package and the Prospectus, and, except as disclosed in the ProspectusGeneral Disclosure Package and the Prospectus and pursuant to registration rights agreements entered into in connection with acquisitions, there are no outstanding (i) securities or obligations of the Company or any of the Subsidiaries convertible into or exchangeable or redeemable for any capital stock or other equity interests of the Company or any such Subsidiary, (ii) warrants, rights or options to subscribe for or purchase from the Company or any such Subsidiary any such capital stock or other equity interests or any such convertible or exchangeable securities or obligations, or (iii) obligations of the Company or any such Subsidiary to issue any shares of capital stockstock or other equity interests, any such convertible or exchangeable or redeemable securities or obligation, or any such warrants, rights or options; all issued and outstanding units of partnership interest in the Operating Partnership (“Units”) owned by the Company are owned free and clear of any perfected security interest or any other security interests, claims, liens or encumbrances;
b. (b) each of the Company and each of the Subsidiaries (all of which Subsidiaries are named in Schedule II hereto) has been duly incorporated, formed incorporated or organized and is validly existing as a corporation, general or limited partnership or limited liability company company, as applicable, in good standing under the laws of its respective jurisdiction of incorporation, formation incorporation or organization with full corporate or other power and authority to own its respective properties and to conduct its respective businesses as described in each of the Registration Statement General Disclosure Package and the Prospectus, Prospectus and, in the case of each of the Company and the Operating Partnership, to execute and deliver this Agreement and to consummate the transactions contemplated herein and to perform its obligations under the Amended and Restated Management Agreement, dated October 27, 2015, by and among the Company, the Operating Partnership and the Manager (the “Management Agreement”)herein;
c. (c) each of the Company and each of the Subsidiaries is duly qualified or licensed and is in good standing in each jurisdiction in which it conducts the nature or conduct of its businesses business requires such qualification or in which it owns or leases real property or otherwise maintains an office license and in which the failure, individually or in the aggregate, to be so qualified or licensed would could reasonably be expected to have a material adverse effect on the assets, business, operations, earnings, prospects, properties or condition (financial or otherwise) of the Company and the Subsidiaries taken as a whole, whole (any such effect or change, where the context so requires, is hereinafter called a “Material Adverse Effect” or “Material Adverse Change”); except as disclosed in the ProspectusProspectus and the General Disclosure Package, no Subsidiary is prohibited or restricted, directly or indirectly, from paying dividends to the Company, or from making any other distribution with respect to such Subsidiary’s capital stock or other equity interests or from repaying to the Company or any other Subsidiary any amounts which that may from time to time become due under any loans or advances to such Subsidiary from the Company or such other Subsidiary, or from transferring any such Subsidiary’s property or assets to the Company or to any other Subsidiary; other than as disclosed in the ProspectusProspectus and the General Disclosure Package, the Company and the Operating Partnership do does not own, directly or indirectly, any capital stock or other equity securities of any other corporation or any ownership interest in any partnership, joint venture or other association;
d. (d) the Partnership Agreement has been duly and validly authorized, executed and delivered by or on behalf of the partners of the Operating Partnership and constitutes a valid and binding agreement of the parties thereto, enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally or by general principles of equity;
(i) Ashford OP Limited Partner, LLC (the “Limited Partner”) is a holder of units of common limited partnership interest (the “Units”) representing a majority limited partnership ownership interest in the Operating Partnership and such units of preferred limited partnership interest in the Operating Partnership as described in the General Disclosure Package and the Prospectus, (ii) Ashford OP General Partner, LLC (the “General Partner”) is the holder of the sole general partner interest in the Operating Partnership, and (iii) the Company owns a 100% membership interest in the General Partner and in the Limited Partner, except for security interests in favor of lenders created pursuant to or in connection with loan documents disclosed in the General Disclosure Package or the Prospectus;
(f) the Company and the Subsidiaries are in compliance in all material respects with all applicable federal, state, local or foreign laws, regulations, rules, regulationsdecrees, judgments and orders, decrees and judgments, including those relating to transactions with affiliates, except where any failures to be in compliance could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
e. (g) neither the Company nor any Subsidiary is in breach of or in default under (nor has any event occurred which with notice, lapse of time, or both would constitute a breach of, or default under), (i) its respective charterorganizational documents, bylaws, agreement of limited partnership, operating agreement or other similar organizational documents (the “Organizational Documents”), (ii) in the performance or observance of any obligation, agreement, covenant or condition contained in any license, indenture, mortgage, deed of trust, loan or credit agreement or other agreement or instrument to which the Company or any Subsidiary is a party or by which any of them or their respective properties is bound, or (iii) any federal, state, local or foreign law, regulation or rule or any decree, judgment, permit or order (each, a “Law”) applicable to the Company or any Subsidiary, except, in the case of clauses (ii) and (iii) above, except for such breaches or defaults which would notthat, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect;
f. (h) the execution, delivery and performance of this Agreement, Agreement and consummation of the transactions contemplated herein will not (Ai) conflict with, or result in any breach of, or constitute a default under (nor constitute any event which with notice, lapse of time, or both would constitute a breach of, or default under), (iA) any provision of the Organizational Documents organizational documents of the Company or any Subsidiary, or (iiB) any provision of any license, indenture, mortgage, deed of trust, loan or credit agreement or other agreement or instrument to which the Company or any Subsidiary is a party or by which any of them or their respective assets or properties may be bound or affected, or under any Law federal, state, local or foreign law, regulation or rule or any decree, judgment or order applicable to the Company or any Subsidiary, except in the case of this clause (iiB) for such breaches or defaults which would notthat, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect; or (Bii) result in the creation or imposition of any lien, charge, claim or encumbrance upon any property or asset of the Company or any Subsidiary;
g. (i) this Agreement and the Management Agreement have has been duly authorized, executed and delivered by the Company and the Operating Partnership and each is a legal, valid and binding agreement of the Company and the Operating Partnership enforceable in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, and by general equitable principles, and except to the extent that the indemnification and contribution provisions of Section 12 9 hereof may be limited by federal or state securities laws and public policy considerations in respect thereof;
h. (j) no approval, authorization, consent or order of or filing with any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency or any other third party is required in connection with the Company’s or the Operating Partnership’s execution, delivery and performance of this Agreement by the Company or the Operating PartnershipAgreement, their consummation of the transactions contemplated herein, and herein or the Company’s sale and delivery of the Placement Shares, other than (Ai) such as have been obtained, or will have been obtained at the relevant Settlement DateClosing Time, under the Securities Act and the Securities Exchange Act of 1934 (the “Exchange Act”) and the rules and regulations thereunder (the “Exchange Act Regulations”), (Bii) such approvals as have been obtained in connection with the approval of the listing of the Placement Shares on the New York Stock Exchange, (C) such as have been obtained or made under the rules and regulations of the Financial Industry Regulatory Authority (“FINRA”) and (Diii) any necessary qualification under the securities or blue sky laws of the various state jurisdictions in which the Placement Shares are being offered by the AgentUnderwriters, and (iv) such approvals, authorizations, consents or orders or filings, the absence of which could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
i. (k) the articles supplementary to the Company’s charter establishing the terms of the Series D Stock (the “Articles Supplementary”), as amended by the articles of amendment to the Articles Supplementary (the “Amended Articles Supplementary”) will be, by the Closing Time, duly authorized and executed by the Company and accepted for record by the Maryland State Department of Assessments and Taxation and effective under the Maryland General Corporation Law;
(l) each of the Company and the Subsidiaries has all necessary licenses, authorizations, consents and approvals and has made all necessary filings required under any Lawfederal, state, local or foreign law, regulation or rule, and has obtained all necessary authorizations, consents and approvals from other persons, required in order to conduct their respective businesses as described in the Registration Statement General Disclosure Package and the Prospectus, except to the extent that any failure to have any such licenses, authorizations, consents or approvals, to make any such filings or to obtain any such authorizations, consents or approvals would could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; neither the Company nor any of the Subsidiaries is required by any applicable law to obtain accreditation or certification from any governmental agency or authority in order to provide the products and services which it currently provides or which it proposes to provide as set forth in the Registration Statement and the Prospectus; neither the Company, nor any of the Subsidiaries is in violation of, in default under, or has received any notice regarding a possible violation, default or revocation of any such license, authorization, consent or approval or any federal, state, local or foreign law, regulation or rule or any decree, judgment or order or judgment applicable to the Company or any of the Subsidiaries Subsidiaries, the effect of which could reasonably be expected to result in a Material Adverse ChangeEffect; and no such license, authorization, consent or approval contains a materially burdensome restriction that is not adequately disclosed in each of the Registration Statement General Disclosure Package and the Prospectus; neither the Company nor any of the Subsidiaries is required by any applicable law to obtain accreditation or certification from any governmental agency or authority in order to provide the products and services that it currently provides or that it proposes to provide as set forth in the General Disclosure Package and the Prospectus except to the extent that any failure to have such accreditation or certification could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
j. (m) the Company meets and the transactions contemplated by this Agreement meet the requirements for the use of Form S-3 under the Securities Act; the Registration Statement has become been declared effective under the Securities Act and Act; no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Company, are contemplated or threatened by the Commission; and , and, to the knowledge of the Company, the Company has complied to the Commission’s satisfaction with any request on the part of the Commission for additional information;
k. (n) at the respective times the Registration Statement as of each and any post-effective date (including each amendments thereto became effective, at the deemed effective date with respect to the Agent Underwriters pursuant to Rule 430B or otherwise under 430B(f)(2) of the Securities Act) and as of Act Regulations, at the date hereofof this Agreement and at the Closing Time, complied or will comply, and the Prospectus Registration Statement and any further amendments or supplements to the Registration Statement or the Prospectus at the time they were filed with the Commission, were, or will, when they become effective or are filed with the Commission, as the case may be, thereto complied and will comply, in all material respects with the requirements of the Securities Act, including Rule 415; the documents incorporated by reference in the Registration Statement Act and the Prospectus, when they became effective or at the time they were or hereafter are filed with the Commission, complied Securities Act Regulations and will comply in all material respects with the requirements of the Exchange Act;
l. the Registration Statement, as of each effective date (including each deemed effective date with respect to the Agent pursuant to Rule 430B or otherwise under the Securities Act), did not and as of the date hereof, and at each Settlement Date, did not, and does not or will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and the Prospectus and any further amendments or any amendment or supplement thereto will not, as of its issue date, as of the applicable filing date, as of the date hereof and at each Settlement Date, contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no warranty or representation with respect to any statement contained in or omitted from the Registration Statement or the Prospectus in reliance upon and in conformity with the information concerning the Agent and furnished in writing by or on behalf of the Agent to the Company expressly for use therein; the documents incorporated by reference in the Registration Statement and the Prospectussupplements thereto, at the time the Registration Statement became effective Prospectus or when such documents incorporated by reference were filed amendment or supplement was issued, at the date hereof, at the time of filing pursuant to Rule 424(b) and at the Closing Time, complied and will comply, in all material respects with the Commission, as requirements of the case may be, when read together with Securities Act and the other information in the Registration Statement or the Prospectus, as the case may be, Securities Act Regulations and did not and will not include contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading;
m. ; and each preliminary prospectus and the prospectus filed as part of the issue date Registration Statement as originally filed or date as part of first use any amendment or supplement thereto or filed pursuant to Rule 424 of the Securities Act Regulations, complied when so filed in all material respects with the Securities Act and at all subsequent times through each Settlement Date, each Issuer Free Writing Prospectus did not, and the Securities Act Regulations; at the earliest time after the filing of each sale the Registration Statement that the Company or another offering participant made a bona fide offer (within the meaning of Placement Rule 164(h)(2) of the Securities Act Regulations) of the Shares and at the Settlement datedate hereof, each such the Company was not and is not an “ineligible issuer,” as defined in Rule 405 of the Securities Act Regulations (“Rule 405”);
(o) as of the Applicable Time (as defined below), neither (x) the Issuer General Use Free Writing Prospectus(es) (as defined below) issued at or prior to the Applicable Time, the Statutory Prospectus will not(as defined below) and the information, contain provided in oral or written form, included on Schedule III hereto, all considered together (collectively, the “General Disclosure Package”), nor (y) any individual Issuer Limited Use Free Writing Prospectus, when considered together with the General Disclosure Package, included an untrue statement of a material fact or omit omitted 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;
n. each Issuer Free Writing Prospectus, if any, ; as of its issue date used in this subsection and at all subsequent times through the completion of the public offer and sale of the Placement Shares did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained elsewhere in the Registration Statement or the Prospectus, including any document incorporated by reference therein, and any other prospectus deemed to be a part thereof that has not been superseded or modified;
o. the Company is eligible to use Free Writing Prospectuses in connection with this offering pursuant to Rules 164 and 433 under the Securities Act; any Free Writing Prospectus that the Company is required to file pursuant to Rule 433(d) has been, or will be, filed with the Commission in accordance with the requirements of the Securities Act; and each Free Writing Prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d) or that was prepared by or on behalf of or used by the Company complies or will comply in all material respects with the requirements of the Securities Act;
p. except for any Issuer Free Writing Prospectuses, the Company has not prepared, used or referred to, and will not, without the prior consent of the Agent, prepare, use or refer to, any Free Writing Prospectus;
q. the Prospectus and any Issuer Free Writing Prospectuses (to the extent any such Issuer Free Writing Prospectus was required to be filed with the Commission) delivered to the Agent for use in connection with the public offering of the Placement Shares contemplated herein have been and will be identical to the versions of such documents transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T under the Securities Act;
r. the Company filed the Registration Statement with the Commission before using any Issuer Free Writing Prospectus;
s. there are no actions, suits, proceedings, inquiries or investigations pending or, to the knowledge of the Company or the Operating Partnership, threatened against the Company or any Subsidiary or any of their respective officers and directors or to which the properties, assets or rights of any such entity are subject, at law or in equity, before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority, arbitral panel or agency which could result in a judgment, decree, award or order having a Material Adverse Effect;
t. the consolidated financial statements, including the notes thereto, included in each of the Registration Statement and the Prospectus present fairly the consolidated financial position of the Company and its subsidiaries as of the dates indicated and their consolidated results of operations and changes in financial position anAgreement:
Appears in 1 contract
Sources: Underwriting Agreement (Ashford Hospitality Trust Inc)
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, represent and warrant toto the Underwriters, and agree with the Agent as of the date of this Agreement, as of each Representation Date (as defined below)hereof, as of the time of each sale of Placement Shares pursuant to this Agreement Closing Time and as of each Settlement Dateany Date of Delivery, unless such representation, warranty or agreement specifies a different date or timethat:
a. (i) the Company has the an authorized and outstanding capitalization as set forth in both the Registration Statement Prospectus and the ProspectusDisclosure Package; the outstanding shares of capital stock of the Company and NRFC Sub-REIT Corp., a Maryland corporation and a subsidiary of the Operating Partnership (the “Private REIT”), have been duly and validly authorized and issued and are fully paid and non-assessable. All nonassessable;
(ii) the outstanding partnership interests of the outstanding shares of capital stock, partnership interests and membership interests, as the case may be, of the subsidiaries of the Company identified on Schedule 4 hereto (each, a “Subsidiary”) Operating Partnership have been duly and validly authorized and are validly issued, fully paid and non-assessable securities thereof and, except as disclosed in the Prospectus, ; all of the outstanding shares of capital stock, partnership interest or membership interests, as the case may be, stock of the Subsidiaries Private REIT are directly or and indirectly owned of record and beneficially by the Operating Partnership and the Company; , respectively;
(iii) except as disclosed in both the ProspectusProspectus and the Disclosure Package, there are no outstanding (iA) securities or obligations of the Company or any the subsidiaries of the Subsidiaries Company required to be set forth in Exhibit 21.1 to the Company’s Form 10-K for the fiscal year ended December 31, 2011 (the “Subsidiaries”), convertible into or exchangeable for any capital stock of or partnership interests, membership interests or other equity interests, as the case may be, in the Company or any such Subsidiary, (iiB) warrants, rights or options to subscribe for or purchase from the Company or any such Subsidiary any such capital stock or any such convertible or exchangeable securities or obligations, or (iiiC) obligations of the Company or any such Subsidiary to issue any shares of capital stocksecurities or obligations, any such convertible or exchangeable securities or obligationobligations, or any such warrants, rights or options; all issued options the existence of which, in each case of (A), (B) and outstanding units of partnership interest (C), is required to be disclosed in the Operating Partnership (“Units”) owned by Prospectus and the Company Disclosure Package and are owned free and clear of any perfected security interest or any other security interests, claims, liens or encumbrancesnot so disclosed;
b. (iv) each of the Company and each of the Subsidiaries has been duly incorporated, formed incorporated or organized and is validly existing as a corporation, general or limited partnership or limited liability company company, as the case may be, except to the extent, in the case of the Subsidiaries, that the failure to be so organized would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect and is in good standing under the laws of its respective jurisdiction of incorporation, formation incorporation or organization with full power except to the extent that the failure to be so qualified or in good standing would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
(v) each of the Company and the Subsidiaries has the corporate, partnership or limited liability company power, as the case may be, and authority to own its their respective properties and to conduct its their respective businesses businesses, each as described in each of the Registration Statement Statement, the Prospectus and the ProspectusDisclosure Package except to the extent that the failure to have such power or authority would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, and, in the case of the Company and the Operating Partnership, to execute and deliver this Agreement and to consummate the transactions contemplated herein and to perform its obligations under the Amended and Restated Management described in this Agreement, dated October 27, 2015, by and among the Company, the Operating Partnership and the Manager (the “Management Agreement”);
c. (vi) the Company and each of the Subsidiaries is are duly qualified or licensed and in good standing in each jurisdiction in which it conducts its businesses where such qualification or in which it owns or leases real property or otherwise maintains an office and in which license is required except where the failure, individually or in the aggregate, to be so qualified or licensed would not reasonably be expected to have a material adverse effect on the assets, business, operations, earnings, prospects, properties or condition (financial or otherwise) of the Company and the Subsidiaries taken as a whole, (any such effect or change, where the context so requires, is hereinafter called a “Material Adverse Effect” or “Material Adverse Change”); ;
(vii) except as disclosed in both the ProspectusProspectus and the Disclosure Package, no Subsidiary the Operating Partnership is neither contractually prohibited or nor contractually restricted, directly or indirectly, from paying dividends to the Company, or from making any other distribution with respect to such Subsidiarythe Operating Partnership’s partnership interests or from repaying to the Company or another subsidiary of the Company any amounts which may from time to time become due under any loans or advances to the Operating Partnership from the Company or another subsidiary of the Company, or from transferring the Operating Partnership’s property or assets to the Company or another subsidiary of the Company;
(viii) except as disclosed in both the Prospectus and the Disclosure Package, the Private REIT is neither contractually prohibited nor contractually restricted, directly or indirectly, from paying dividends to the Operating Partnership, or from making any other distribution with respect to the Private REIT’s shares of capital stock or from repaying to the Company, the Operating Partnership or another subsidiary of the Company any amounts which may from time to time become due under any loans or advances to the Private REIT from the Company, the Operating Partnership or another subsidiary of the Company, or from transferring the Private REIT’s property or assets to the Company, the Operating Partnership or another subsidiary of the Company;
(ix) except as disclosed in both the Prospectus and the Disclosure Package, no Subsidiary (other than the Operating Partnership and the Private REIT, which are covered above) is contractually prohibited or restricted, directly or indirectly, from paying dividends to the Operating Partnership or the Private REIT, to the extent such Subsidiary is a direct subsidiary of the Operating Partnership or the Private REIT, or from making any other distribution with respect to the outstanding membership interests of such Subsidiary or from repaying to the Company, the Operating Partnership or another subsidiary of the Company any amounts which may from time to time become due under any loans or advances to such Subsidiary from the Company Company, the Operating Partnership or such other Subsidiaryanother subsidiary of the Company, or from transferring any such Subsidiary’s property or assets to the Company, the Operating Partnership or another subsidiary of the Company except for any such prohibitions and restrictions that would not individually or in the aggregate reasonably be expected to have a Material Adverse Effect or to the extent that any other Subsidiary; other than such restriction would currently materially limit the Company’s ability to pay dividends or that would be reasonably likely to materially limit the future payment of dividends on Common Stock;
(x) the Agreement of Limited Partnership of the Operating Partnership, dated as of October 19, 2004, as amended (the “Partnership Agreement”), has been duly and validly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally or by general principles of equity, and except to the extent that the indemnification and contribution provisions thereof may be limited by federal or state securities laws and public policy considerations in respect thereof;
(xi) the Company is the sole general partner of the Operating Partnership and owns units of partnership interest in the Operating Partnership (“OP Units”) representing an ownership interest in the Operating Partnership in the percentage set forth in both the Prospectus and the Disclosure Package, and, except as disclosed in the Prospectus, the Company Prospectus and the Operating Partnership do not ownDisclosure Package, directly or indirectlysuch ownership interest is free and clear of any pledge, any capital stock lien, encumbrance, security interest or other equity securities of claim except for any other corporation or any ownership pledge, lien, encumbrance, security interest in any partnership, joint venture or other associationclaim that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
d. the Company and the Subsidiaries are in compliance in all material respects with all applicable laws, rules, regulations, orders, decrees and judgments, including those relating to transactions with affiliates;
e. (xii) neither the Company nor any Subsidiary is in breach of or in default under (nor has any event occurred which with notice, lapse of time, or both would constitute a breach of, or default under), (i) its respective charterorganizational documents, bylaws, agreement of limited partnership, operating agreement or other similar organizational documents (the “Organizational Documents”), (ii) in the performance or observance of any obligation, agreement, covenant or condition contained in any license, indenture, mortgage, deed of trust, loan or credit agreement or other agreement or instrument to which the Company or any Subsidiary is a party or by which any of them or their respective properties or assets is bound, or (iii) any federal, state, local or foreign law, regulation or rule or any decree, judgment, permit or order (each, a “Law”) applicable to the Company or any Subsidiary, except, in the case of clauses (ii) and (iii) above, except for such breaches or defaults which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
f. (xiii) the execution, delivery and performance of this Agreement, Agreement and consummation of the transactions contemplated herein will not (A) conflict with, or result in any breach of, or constitute a default under (nor constitute any event which with notice, lapse of time, or both would constitute a breach of, or default under), ): (i1) any provision of the Organizational Documents organizational documents of the Company or any Subsidiary, or (ii2) any provision of any license, indenture, mortgage, deed of trust, loan or credit agreement or other agreement or instrument to which the Company or any Subsidiary is a party or by which any of them or their respective assets or properties may be bound or affected, or under any Law federal, state, local or foreign law, regulation or rule or any decree, judgment or order applicable to the Company or any Subsidiary, except in the case of this clause (ii2) for such breaches or defaults which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse EffectEffect and which would not reasonably be expected to have a material adverse effect on the Company and the Operating Partnership’s ability to perform their agreed upon obligations under the Agreement; or (B) result in the creation or imposition of any lien, charge, claim or encumbrance upon any property or asset of the Company or any Subsidiary, except for such liens, charges, claims or encumbrances which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
g. (xiv) this Agreement and the Management Agreement have has been duly authorized, executed and delivered by each of the Company and the Operating Partnership and each is a legal, valid and binding agreement of each of the Company and the Operating Partnership enforceable against the Company and the Operating Partnership in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, and by general equitable principles, and except to the extent that the indemnification and contribution provisions of Section 12 9 hereof may be limited by federal or state securities laws and public policy considerations in respect thereof;
h. (xv) no approval, authorization, consent or order of or filing with any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency is required in connection with the Company’s or the Operating Partnership’s execution, delivery and performance of this Agreement Agreement, the consummation of the transactions contemplated herein by the Company or the Operating Partnership, their consummation of the transactions contemplated herein, and including the Company’s issuance, sale and delivery of the Placement Shares, other than (A) such as have been obtained, or will have been obtained at the Closing Time or the relevant Settlement DateDate of Delivery, as the case may be, under the Securities Act and the Exchange Act, (B) such approvals as have been obtained in connection with the approval of the listing of the Placement Shares on the Exchange, (C) such as have been obtained or made under the rules and regulations of the Financial Industry Regulatory Authority (“FINRA”) and (D) any necessary qualification under the securities or “blue sky sky” laws of the various jurisdictions in which the Placement Shares are being offered by the AgentUnderwriters, or (C) any such approvals, authorizations, consents, orders, or filings that if not obtained or made, would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect and which would not reasonably be expected to have a material adverse effect on the Company and the Operating Partnership’s ability to perform their agreed upon obligations under this Agreement;
i. (xvi) each of the Company and the Subsidiaries has all necessary licenses, authorizations, consents and approvals and has made all necessary filings required under any Lawfederal, state, local or foreign law, regulation or rule, and has obtained all necessary authorizations, consents and approvals from other persons, required in order to conduct their respective businesses as described in both the Registration Statement Prospectus and the ProspectusDisclosure Package, except to the extent that any failure to have any such licenses, authorizations, consents or approvals, to make any such filings or to obtain any such authorizations, consents or approvals would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; neither the Company nor any of the Subsidiaries is required by any applicable law to obtain accreditation or certification from any governmental agency or authority in order to provide the products and services which it currently provides or which it proposes to provide as set forth in the Registration Statement and the Prospectus; neither the Company, nor any of the Subsidiaries is in violation of, in default under, or has received any notice regarding a possible violation, default or revocation of any such license, authorization, consent or approval or any federal, state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Company or any of the Subsidiaries the effect of which could would reasonably be expected to result in a Material Adverse Change; and no such license, authorization, consent or approval contains a materially burdensome restriction that is not adequately disclosed in each of the Registration Statement and the Prospectus;
j. the Company meets the requirements for use of Form S-3 under the Securities Act; (xvii) the Registration Statement has become been declared effective under the Securities Act and by the Commission; the Rule 462(b) Registration Statement, if any, is effective; no stop order suspending the effectiveness or the use of the Registration Statement Statement, including any Rule 462(b) Registration Statement, has been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Company, are contemplated or threatened by the Commission; and the Company has complied to the Commission’s satisfaction with any request on the part of the Commission for additional information;
k. (xviii) the Registration Statement Preliminary Prospectus, as of each effective its date (including each deemed effective date with respect to the Agent pursuant to Rule 430B or otherwise under the Securities Act) and as of the date hereof, complied or complies, the Registration Statement, as of each effective date and as of the date hereof, complied, complies or will complycomply in all material respects, and the Prospectus as of its date and any further amendments or supplements to the Registration Statement Statement, the Preliminary Prospectus or the Prospectus at the time they were filed with the Commission, were, or willwill comply in all material respects, when they become effective or are filed with the Commission, as the case may be, comply, in all material respects with the requirements of the Securities Act, including Rule 415; the documents incorporated by reference in the Registration Statement Act and the Prospectus, when they became effective or at the time they were or hereafter are filed with the Commission, complied and will comply in all material respects with the requirements of the Exchange Act;
l. Securities Act Regulations; the Registration Statement, as of each effective date (including each deemed effective date with respect to the Agent pursuant to Rule 430B or otherwise under the Securities Act), and as of the date hereof, and at each Settlement Datedate, did not, and does not or will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; the Preliminary Prospectus, as of its date, did not contain and the Prospectus or any amendment or supplement thereto will notthereto, as of its issue datetheir respective dates, as of the applicable filing date, as of the date hereof hereof, the Closing Time and at on each Settlement DateDate of Delivery (if any), will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no warranty or representation with respect to any statement contained in or omitted from the Registration Statement Statement, the Preliminary Prospectus or the Prospectus or any amendment or supplement to any of the foregoing in reliance upon and in conformity with the information concerning the Agent Underwriters and furnished in writing by or on behalf of the Agent Underwriters to the Company expressly for use therein; ;
(xix) the documents incorporated by reference in Disclosure Package as of the Registration Statement and the Prospectus, at the time the Registration Statement became effective or when such documents incorporated by reference were filed with the Commission, as the case may be, when read together with the other information in the Registration Statement or the Prospectus, as the case may beApplicable Time, did not and will not include an any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
m. as of the issue date or date of first use and at all subsequent times through each Settlement Date, each Issuer Free Writing Prospectus did not, and at the time of each sale of Placement Shares and at the Settlement date, each such Issuer Free Writing Prospectus will not, contain an untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
n. ; and each Issuer Free Writing Prospectus, if any, as of its issue date and at all subsequent times through Prospectus included in the completion of the public offer and sale of the Placement Shares did not, Disclosure Package does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement Statement, the Preliminary Prospectus or the Prospectus and each such Issuer Free Writing Prospectus, including as supplemented by and taken together with the other information comprising the Disclosure Package as of the Applicable Time, did not include any document incorporated by reference untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, and any other prospectus deemed to be a part thereof that has in the light of the circumstances under which they were made, not been superseded or modified;
o. the Company is eligible to use Free Writing Prospectuses in connection with this offering pursuant to Rules 164 and 433 under the Securities Actmisleading; any Free Writing Prospectus provided, however, that the Company is required makes no warranty or representation with respect to file pursuant to Rule 433(d) has been, or will be, filed any statement contained in the Disclosure Package in reliance upon and in conformity with the Commission information concerning the Underwriters and furnished in accordance with the requirements of the Securities Act; and each Free Writing Prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d) or that was prepared writing by or on behalf of or used by the Company complies or will comply in all material respects with the requirements of the Securities Act;
p. except for any Issuer Free Writing Prospectuses, the Company has not prepared, used or referred to, and will not, without the prior consent of the Agent, prepare, use or refer to, any Free Writing Prospectus;
q. the Prospectus and any Issuer Free Writing Prospectuses (Underwriters to the extent any such Issuer Free Writing Prospectus was required to be filed with the Commission) delivered to the Agent for use in connection with the public offering of the Placement Shares contemplated herein have been and will be identical to the versions of such documents transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T under the Securities Act;
r. the Company filed the Registration Statement with the Commission before using any Issuer Free Writing Prospectus;
s. there are no actions, suits, proceedings, inquiries or investigations pending or, to the knowledge of the Company or the Operating Partnership, threatened against the Company or any Subsidiary or any of their respective officers and directors or to which the properties, assets or rights of any such entity are subject, at law or in equity, before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority, arbitral panel or agency which could result in a judgment, decree, award or order having a Material Adverse Effect;
t. the consolidated financial statements, including the notes thereto, included in each of the Registration Statement and the Prospectus present fairly the consolidated financial position of the Company and its subsidiaries as of the dates indicated and their consolidated results of operations and changes in financial position anCompa
Appears in 1 contract
Sources: Underwriting Agreement (Northstar Realty Finance Corp.)
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, represent and warrant toto the Underwriter, and agree with the Agent as of the date of this Agreement, as of each Representation Date (as defined below)hereof, as of the time of each sale of Placement Shares pursuant to this Agreement Closing Time and as of each Settlement DateDate of Delivery, unless such representation, warranty or agreement specifies a different date or timethat:
a. (i) the Company has the an authorized and outstanding capitalization as set forth in both the Registration Statement Prospectus and the ProspectusDisclosure Package; the outstanding shares of capital stock of the Company and NRFC Sub-REIT Corp., a Maryland corporation and a subsidiary of the Operating Partnership (the “Private REIT”), have been duly and validly authorized and issued and are fully paid and non-assessable. All nonassessable;
(ii) the outstanding partnership interests of the outstanding shares of capital stock, partnership interests and membership interests, as the case may be, of the subsidiaries of the Company identified on Schedule 4 hereto (each, a “Subsidiary”) Operating Partnership have been duly and validly authorized and are validly issued, fully paid and non-assessable securities thereof and, except as disclosed in the Prospectus, ; all of the outstanding shares of capital stock, partnership interest or membership interests, as the case may be, stock of the Subsidiaries Private REIT are directly or and indirectly owned of record and beneficially by the Operating Partnership and the Company; , respectively;
(iii) except as disclosed in both the ProspectusProspectus and the Disclosure Package, there are no outstanding (iA) securities or obligations of the Company or any the subsidiaries of the Subsidiaries Company required to be set forth in Exhibit 21.1 to the Company’s Form 10-K for the fiscal year ended December 31, 2011 (the “Subsidiaries”), convertible into or exchangeable for any capital stock of or partnership interests, membership interests or other equity interests, as the case may be, in the Company or any such Subsidiary, (iiB) warrants, rights or options to subscribe for or purchase from the Company or any such Subsidiary any such capital stock or any such convertible or exchangeable securities or obligations, or (iiiC) obligations of the Company or any such Subsidiary to issue any shares of capital stocksecurities or obligations, any such convertible or exchangeable securities or obligationobligations, or any such warrants, rights or options; all issued options the existence of which, in each case of (A), (B) and outstanding units of partnership interest (C), is required to be disclosed in the Operating Partnership (“Units”) owned by Prospectus and the Company Disclosure Package and are owned free and clear of any perfected security interest or any other security interests, claims, liens or encumbrancesnot so disclosed;
b. (iv) each of the Company and each of the Subsidiaries has been duly incorporated, formed incorporated or organized and is validly existing as a corporation, general or limited partnership or limited liability company company, as the case may be, except to the extent, in the case of the Subsidiaries, that the failure to be so organized would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect and is in good standing under the laws of its respective jurisdiction of incorporation, formation incorporation or organization with full power except to the extent that the failure to be so qualified or in good standing would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
(v) each of the Company and the Subsidiaries have the corporate, partnership or limited liability company power, as the case may be, and authority to own its their respective properties and to conduct its their respective businesses businesses, each as described in each of the Registration Statement Statement, the Prospectus and the ProspectusDisclosure Package except to the extent that the failure to have such power or authority would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, and, in the case of the Company and the Operating Partnership, to execute and deliver this Agreement and to consummate the transactions contemplated herein and to perform its obligations under the Amended and Restated Management described in this Agreement, dated October 27, 2015, by and among the Company, the Operating Partnership and the Manager (the “Management Agreement”);
c. (vi) the Company and each of the Subsidiaries is are duly qualified or licensed and in good standing in each jurisdiction in which it conducts its businesses where such qualification or in which it owns or leases real property or otherwise maintains an office and in which license is required except where the failure, individually or in the aggregate, to be so qualified or licensed would not reasonably be expected to have a material adverse effect on the assets, business, operations, earnings, prospects, properties or condition (financial or otherwise) of the Company and the Subsidiaries taken as a whole, (any such effect or change, where the context so requires, is hereinafter called a “Material Adverse Effect” or “Material Adverse Change”); ;
(vii) except as disclosed in both the ProspectusProspectus and the Disclosure Package, no Subsidiary the Operating Partnership is neither contractually prohibited or nor contractually restricted, directly or indirectly, from paying dividends to the Company, or from making any other distribution with respect to such Subsidiarythe Operating Partnership’s partnership interests or from repaying to the Company or another subsidiary of the Company any amounts which may from time to time become due under any loans or advances to the Operating Partnership from the Company or another subsidiary of the Company, or from transferring the Operating Partnership’s property or assets to the Company or another subsidiary of the Company;
(viii) except as disclosed in both the Prospectus and the Disclosure Package, the Private REIT is neither contractually prohibited nor contractually restricted, directly or indirectly, from paying dividends to the Operating Partnership, or from making any other distribution with respect to the Private REIT’s shares of capital stock or from repaying to the Company, the Operating Partnership or another subsidiary of the Company any amounts which may from time to time become due under any loans or advances to the Private REIT from the Company, the Operating Partnership or another subsidiary of the Company, or from transferring the Private REIT’s property or assets to the Company, the Operating Partnership or another subsidiary of the Company;
(ix) except as disclosed in both the Prospectus and the Disclosure Package, no Subsidiary (other than the Operating Partnership and the Private REIT, which are covered above) is contractually prohibited or restricted, directly or indirectly, from paying dividends to the Operating Partnership or the Private REIT, to the extent such Subsidiary is a direct subsidiary of the Operating Partnership or the Private REIT, or from making any other distribution with respect to the outstanding membership interests of such Subsidiary or from repaying to the Company, the Operating Partnership or another subsidiary of the Company any amounts which may from time to time become due under any loans or advances to such Subsidiary from the Company Company, the Operating Partnership or such other Subsidiaryanother subsidiary of the Company, or from transferring any such Subsidiary’s property or assets to the Company, the Operating Partnership or another subsidiary of the Company except for any such prohibitions and restrictions that would not individually or in the aggregate reasonably be expected to have a Material Adverse Effect or to the extent that any other Subsidiary; other than such restriction would currently materially limit the Company’s ability to pay dividends or that would be reasonably likely to materially limit the future payment of dividends on Common Stock;
(x) the Agreement of Limited Partnership of the Operating Partnership, dated as of October 19, 2004, as amended (the “Partnership Agreement”), has been duly and validly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally or by general principles of equity, and except to the extent that the indemnification and contribution provisions thereof may be limited by federal or state securities laws and public policy considerations in respect thereof;
(xi) the Company is the sole general partner of the Operating Partnership and owns units of partnership interest in the Operating Partnership (“OP Units”) representing an ownership interest in the Operating Partnership in the percentage set forth in both the Prospectus and the Disclosure Package, and, except as disclosed in the Prospectus, the Company Prospectus and the Operating Partnership do not ownDisclosure Package, directly or indirectlysuch ownership interest is free and clear of any pledge, any capital stock lien, encumbrance, security interest or other equity securities of claim except for any other corporation or any ownership pledge, lien, encumbrance, security interest in any partnership, joint venture or other associationclaim that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
d. the Company and the Subsidiaries are in compliance in all material respects with all applicable laws, rules, regulations, orders, decrees and judgments, including those relating to transactions with affiliates;
e. (xii) neither the Company nor any Subsidiary is in breach of or in default under (nor has any event occurred which with notice, lapse of time, or both would constitute a breach of, or default under), (i) its respective charterorganizational documents, bylaws, agreement of limited partnership, operating agreement or other similar organizational documents (the “Organizational Documents”), (ii) in the performance or observance of any obligation, agreement, covenant or condition contained in any license, indenture, mortgage, deed of trust, loan or credit agreement or other agreement or instrument to which the Company or any Subsidiary is a party or by which any of them or their respective properties or assets is bound, or (iii) any federal, state, local or foreign law, regulation or rule or any decree, judgment, permit or order (each, a “Law”) applicable to the Company or any Subsidiary, except, in the case of clauses (ii) and (iii) above, except for such breaches or defaults which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
f. (xiii) the execution, delivery and performance of this Agreement, Agreement and consummation of the transactions contemplated herein will not (A) conflict with, or result in any breach of, or constitute a default under (nor constitute any event which with notice, lapse of time, or both would constitute a breach of, or default under), ): (i1) any provision of the Organizational Documents organizational documents of the Company or any Subsidiary, or (ii2) any provision of any license, indenture, mortgage, deed of trust, loan or credit agreement or other agreement or instrument to which the Company or any Subsidiary is a party or by which any of them or their respective assets or properties may be bound or affected, or under any Law federal, state, local or foreign law, regulation or rule or any decree, judgment or order applicable to the Company or any Subsidiary, except in the case of this clause (ii2) for such breaches or defaults which would notwould, individually or in the aggregate, not reasonably be expected to have a Material Adverse EffectEffect and which would not reasonably be expected to have a material adverse effect on the Company and the Operating Partnership’s ability to perform their agreed upon obligations under the Agreement; or (B) result in the creation or imposition of any lien, charge, claim or encumbrance upon any property or asset of the Company or any Subsidiary, except for such liens, charges, claims or encumbrances which would individually or in the aggregate not reasonably be expected to have a Material Adverse Effect;
g. (xiv) this Agreement and the Management Agreement have has been duly authorized, executed and delivered by each of the Company and the Operating Partnership and each is a legal, valid and binding agreement of each of the Company and the Operating Partnership enforceable against the Company and the Operating Partnership in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, and by general equitable principles, and except to the extent that the indemnification and contribution provisions of Section 12 9 hereof may be limited by federal or state securities laws and public policy considerations in respect thereof;
h. (xv) no approval, authorization, consent or order of or filing with any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency is required in connection with the Company’s or the Operating Partnership’s execution, delivery and performance of this Agreement Agreement, the consummation of the transactions contemplated herein by the Company or the Operating Partnership, their consummation of the transactions contemplated herein, and including the Company’s issuance, sale and delivery of the Placement Shares, other than (A) such as have been obtained, or will have been obtained at the Closing Time or the relevant Settlement DateDate of Delivery, as the case may be, under the Securities Act and the Exchange Act, or (B) such approvals as have been obtained in connection with the approval of the listing of the Placement Shares on the Exchange, (C) such as have been obtained or made under the rules and regulations of the Financial Industry Regulatory Authority (“FINRA”) and (D) any necessary qualification under the securities or “blue sky sky” laws of the various jurisdictions in which the Placement Shares are being offered by the AgentUnderwriter, or (C), any such approvals, authorizations, consents, orders, or filings that if not obtained or made, would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect and which would not reasonably be expected to have a material adverse effect on the Company and the Operating Partnership’s ability to perform their agreed upon obligations under this Agreement;
i. (xvi) each of the Company and the Subsidiaries has all necessary licenses, authorizations, consents and approvals and has made all necessary filings required under any Lawfederal, state, local or foreign law, regulation or rule, and has obtained all necessary authorizations, consents and approvals from other persons, required in order to conduct their respective businesses as described in both the Registration Statement Prospectus and the ProspectusDisclosure Package, except to the extent that any failure to have any such licenses, authorizations, consents or approvals, to make any such filings or to obtain any such authorizations, consents or approvals would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; neither the Company nor any of the Subsidiaries is required by any applicable law to obtain accreditation or certification from any governmental agency or authority in order to provide the products and services which it currently provides or which it proposes to provide as set forth in the Registration Statement and the Prospectus; neither the Company, nor any of the Subsidiaries is in violation of, in default under, or has received any notice regarding a possible violation, default or revocation of any such license, authorization, consent or approval or any federal, state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Company or any of the Subsidiaries the effect of which could would reasonably be expected to result in a Material Adverse Change; and no such license, authorization, consent or approval contains a materially burdensome restriction that is not adequately disclosed in each of the Registration Statement and the Prospectus;
j. the Company meets the requirements for use of Form S-3 under the Securities Act; (xvii) the Registration Statement has become been declared effective under the Securities Act and by the Commission; the Rule 462(b) Registration Statement, if any, is effective; no stop order suspending the effectiveness or the use of the Registration Statement Statement, including any Rule 462(b) Registration Statement, has been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Company, are contemplated or threatened by the Commission; and the Company has complied to the Commission’s satisfaction with any request on the part of the Commission for additional information;
k. (xviii) the Registration Statement Preliminary Prospectus, as of each effective its date (including each deemed effective date with respect to the Agent pursuant to Rule 430B or otherwise under the Securities Act) and as of the date hereof, complied or complies, the Registration Statement, as of each effective date and as of the date hereof, complied, complies or will complycomply in all material respects, and the Prospectus as of its date and any further amendments or supplements to the Registration Statement Statement, the Preliminary Prospectus or the Prospectus at the time they were filed with the Commission, were, or willwill comply in all material respects, when they become effective or are filed with the Commission, as the case may be, comply, in all material respects with the requirements of the Securities Act, including Rule 415; the documents incorporated by reference in the Registration Statement Act and the Prospectus, when they became effective or at the time they were or hereafter are filed with the Commission, complied and will comply in all material respects with the requirements of the Exchange Act;
l. Securities Act Regulations; the Registration Statement, as of each effective date (including each deemed effective date with respect to the Agent pursuant to Rule 430B or otherwise under the Securities Act), and as of the date hereof, and at each Settlement Datedate, did not, and does not or will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; the Preliminary Prospectus, as of its date, did not contain and the Prospectus or any amendment or supplement thereto will notthereto, as of its issue datetheir respective dates, as of the applicable filing date, as of the date hereof hereof, the Closing Time and at on each Settlement DateDate of Delivery, will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no warranty or representation with respect to any statement contained in or omitted from the Registration Statement Statement, the Preliminary Prospectus or the Prospectus or any amendment or supplement to any of the foregoing in reliance upon and in conformity with the information concerning the Agent Underwriter and furnished in writing by or on behalf of the Agent Underwriter to the Company expressly for use therein;
(xix) for the purposes of this Agreement, the “Applicable Time” has the meaning set forth on Schedule II hereto; the documents incorporated by reference in Disclosure Package as of the Registration Statement and the Prospectus, at the time the Registration Statement became effective or when such documents incorporated by reference were filed with the Commission, as the case may be, when read together with the other information in the Registration Statement or the Prospectus, as the case may beApplicable Time, did not and will not include an any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
m. as of the issue date or date of first use and at all subsequent times through each Settlement Date, each Issuer Free Writing Prospectus did not, and at the time of each sale of Placement Shares and at the Settlement date, each such Issuer Free Writing Prospectus will not, contain an untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
n. ; and each Issuer Free Writing Prospectus, if any, as of its issue date and at all subsequent times through Prospectus included in the completion of the public offer and sale of the Placement Shares did not, Disclosure Package does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein, and any other prospectus deemed to be a part thereof that has not been superseded or modified;
o. the Company is eligible to use Free Writing Prospectuses in connection with this offering pursuant to Rules 164 and 433 under the Securities Act; any Free Writing Prospectus that the Company is required to file pursuant to Rule 433(d) has been, or will be, filed with the Commission in accordance with the requirements of the Securities Act; and each Free Writing Prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d) or that was prepared by or on behalf of or used by the Company complies or will comply in all material respects with the requirements of the Securities Act;
p. except for any Issuer Free Writing ProspectusesStatement, the Company has not prepared, used Preliminary Prospectus or referred to, and will not, without the prior consent of the Agent, prepare, use or refer to, any Free Writing Prospectus;
q. the Prospectus and any Issuer Free Writing Prospectuses (to the extent any each such Issuer Free Writing Prospectus was required to be filed Prospectus, as supplemented by and taken together with the Commission) delivered to other information comprising the Agent for use in connection with the public offering of the Placement Shares contemplated herein have been and will be identical to the versions of such documents transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T under the Securities Act;
r. the Company filed the Registration Statement with the Commission before using any Issuer Free Writing Prospectus;
s. there are no actions, suits, proceedings, inquiries or investigations pending or, to the knowledge of the Company or the Operating Partnership, threatened against the Company or any Subsidiary or any of their respective officers and directors or to which the properties, assets or rights of any such entity are subject, at law or in equity, before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority, arbitral panel or agency which could result in a judgment, decree, award or order having a Material Adverse Effect;
t. the consolidated financial statements, including the notes thereto, included in each of the Registration Statement and the Prospectus present fairly the consolidated financial position of the Company and its subsidiaries Disclosure Package as of the dates indicated Applicable Time, did not include 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; provided, however, that the Company makes no warranty or representation with respect to any statement contained in the Disclosure Package in reliance upon and their consolidated results of operations and changes in financial position anconformity with the information co
Appears in 1 contract
Sources: Underwriting Agreement (Northstar Realty Finance Corp.)
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, represent and warrant to, and agree with to the Agent as of the date of this Agreement, as of each Representation Date (as defined below), as of the time of each sale of Placement Shares pursuant to this Agreement and as of each Settlement Date, unless such representation, warranty or agreement specifies a different date or timeUnderwriters that:
a. (a) the Company has an authorized capitalization of 200 million shares of common stock, par value $.01 per share, and 50 million shares of preferred stock, par value $.01 per share (the authorized and outstanding capitalization as set forth in the Registration Statement and the Prospectus"Preferred Stock"); the outstanding shares of capital stock or, as applicable partnership or membership interests, of the Company and each subsidiary of the Company, including the Operating Partnership and its subsidiaries (each, a "Subsidiary" and collectively, the "Subsidiaries"), have been duly and validly authorized and issued and are fully paid and non-assessable. All of the outstanding and, with respect to shares of capital stock, partnership membership interests and membership limited partnership interests, as the case may be, of the subsidiaries of the Company identified on Schedule 4 hereto (each, a “Subsidiary”) have been duly authorized and are validly issued, fully paid and non-assessable securities thereof (except to the extent such non-assessability may be affected by Section 17-607 of the Delaware Revised Uniform Limited Partnership Act or Section 18-607 of the Delaware Limited Liability Company Act), and, except as disclosed in the Prospectus, all of the outstanding shares of capital stock, stock or partnership interest or membership interests, as the case may be, interests of the Subsidiaries are directly or indirectly owned of record and beneficially by the Company; , free and clear of any pledge, lien, encumbrance, security interest or other claim, and, except as disclosed in the Prospectus, there are no outstanding (i) securities or obligations of the Company or any of the Subsidiaries convertible into or exchangeable or redeemable for any capital stock or other equity interests of the Company or any such Subsidiary, (ii) warrants, rights or options to subscribe for or purchase from the Company or any such Subsidiary any such capital stock or other equity interests or any such convertible or exchangeable securities or obligations, or (iii) obligations of the Company or any such Subsidiary to issue any shares of capital stockstock or other equity interests, any such convertible or exchangeable or redeemable securities or obligation, or any such warrants, rights or options; all issued and outstanding units of partnership interest in the Operating Partnership (“Units”) owned by the Company are owned free and clear of any perfected security interest or any other security interests, claims, liens or encumbrances;
b. (b) each of the Company and each of the Subsidiaries (all of which Subsidiaries are named in Exhibit 21.1 to the Registration Statement) has been duly incorporated, formed incorporated or organized and is validly existing as a corporation, general or limited partnership or limited liability company company, as applicable, in good standing under the laws of its respective jurisdiction of incorporation, formation incorporation or organization with full corporate or other power and authority to own its respective properties and to conduct its respective businesses as described in each of the Registration Statement and the Prospectus, Prospectus and, in the case of each of the Company and the Operating Partnership, to execute and deliver this Agreement and to consummate the transactions contemplated herein and to perform its obligations under the Amended and Restated Management Agreement, dated October 27, 2015, by and among the Company, the Operating Partnership and the Manager (the “Management Agreement”)herein;
c. (c) each of the Company and each of the Subsidiaries is duly qualified or licensed and is in good standing in each jurisdiction in which it conducts the nature or conduct of its businesses business requires such qualification or in which it owns or leases real property or otherwise maintains an office license and in which the failure, individually or in the aggregate, to be so qualified or licensed would could reasonably be expected to have a material adverse effect on the assets, business, operations, earnings, prospects, properties or condition (financial or otherwise) of the Company and the Subsidiaries taken as a whole, whole (any such effect or change, where the context so requires, is hereinafter called a “"Material Adverse Effect” or “Material Adverse Change”"); except as disclosed in the Prospectus, no Subsidiary is prohibited or restricted, directly or indirectly, from paying dividends to the Company, or from making any other distribution with respect to such Subsidiary’s 's capital stock or other equity interests or from repaying to the Company or any other Subsidiary any amounts which that may from time to time become due under any loans or advances to such Subsidiary from the Company or such other Subsidiary, or from transferring any such Subsidiary’s 's property or assets to the Company or to any other Subsidiary; other than as disclosed in the Prospectus, the Company and the Operating Partnership do does not own, directly or indirectly, any capital stock or other equity securities of any other corporation or any ownership interest in any partnership, joint venture or other association;
d. (d) the Agreement of Limited Partnership of the Operating Partnership (the "Partnership Agreement") has been duly and validly authorized, executed and delivered by or on behalf of the partners of the Operating Partnership and constitutes a valid and binding agreement of the parties thereto, enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally or by general principles of equity;
(i) Ashford OP Limited Partner, LLC (the "Limited Partner") is a holder of Units representing an ownership interest in the Operating Partnership in the amount described in the Prospectus, (ii) Ashford OP General Partner, LLC (the "General Partner") is the holder of the sole general partner interest in the Operating Partnership, and (iii) the Company owns a 100% membership interest in the General Partner and in the Limited Partner, in each case free and clear of any pledge, lien, encumbrance, security interest or other claim;
(f) the Company and the Subsidiaries are in compliance in all material respects with all applicable federal, state, local or foreign laws, regulations, rules, regulationsdecrees, judgments and orders, decrees and judgments, including those relating to transactions with affiliates, except where any failures to be in compliance could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
e. (g) neither the Company nor any Subsidiary is in breach of or in default under (nor has any event occurred which with notice, lapse of time, or both would constitute a breach of, or default under), (i) its respective charterorganizational documents, bylaws, agreement of limited partnership, operating agreement or other similar organizational documents (the “Organizational Documents”), (ii) in the performance or observance of any obligation, agreement, covenant or condition contained in any license, indenture, mortgage, deed of trust, loan or credit agreement or other agreement or instrument to which the Company or any Subsidiary is a party or by which any of them or their respective properties is bound, or (iii) any federal, state, local or foreign law, regulation or rule or any decree, judgment, permit or order (each, a “Law”) applicable to the Company or any Subsidiary, except, in the case of clauses (ii) and (iii) above, except for such breaches or defaults which would notthat, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect;
f. (h) the execution, delivery and performance of this Agreement, Agreement and consummation of the transactions contemplated herein will not (A) conflict with, or result in any breach of, or constitute a default under (nor constitute any event which with notice, lapse of time, or both would constitute a breach of, or default under), (i) any provision of the Organizational Documents organizational documents of the Company or any Subsidiary, or (ii) any provision of any license, indenture, mortgage, deed of trust, loan or credit agreement or other agreement or instrument to which the Company or any Subsidiary is a party or by which any of them or their respective assets or properties may be bound or affected, or under any Law federal, state, local or foreign law, regulation or rule or any decree, judgment or order applicable to the Company or any Subsidiary, except in the case of this clause (ii) for such breaches or defaults which would notthat, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect; or (B) result in the creation or imposition of any lien, charge, claim or encumbrance upon any property or asset of the Company or any Subsidiary;
g. (i) this Agreement and the Management Agreement have has been duly authorized, executed and delivered by the Company and the Operating Partnership and each is a legal, valid and binding agreement of the Company and the Operating Partnership enforceable in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ ' rights generally, and by general equitable principles, and except to the extent that the indemnification and contribution provisions of Section 12 9 hereof may be limited by federal or state securities laws and public policy considerations in respect thereof;
h. (j) no approval, authorization, consent or order of or filing with any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency or any other third party is required in connection with the Company's or the Operating Partnership's execution, delivery and performance of this Agreement by the Company or the Operating PartnershipAgreement, their consummation of the transactions contemplated herein, and herein or the Company’s 's sale and delivery of the Placement Shares, other than (Ai) such as have been obtained, or will have been obtained at the Closing Time or the relevant Settlement DateDate of Delivery, as the case may be, under the Securities Act and the Securities Exchange Act of 1934 (the "Exchange Act"), (Bii) such approvals as have been obtained in connection with the approval of the listing of the Placement Shares on the New York Stock Exchange, (C) such as have been obtained or made under the rules and regulations of the Financial Industry Regulatory Authority (“FINRA”) and (Diii) any necessary qualification under the securities or blue sky laws of the various state jurisdictions in which the Placement Shares are being offered by the AgentUnderwriters, and (iv) such approvals, authorizations, consents or orders or filings, the absence of which could not reasonably be expected to have a Material Adverse Effect, individually or in the aggregate;
i. (k) each of the Company and the Subsidiaries has all necessary licenses, authorizations, consents and approvals and has made all necessary filings required under any Lawfederal, state, local or foreign law, regulation or rule, and has obtained all necessary authorizations, consents and approvals from other persons, required in order to conduct their respective businesses as described in the Registration Statement and the Prospectus, except to the extent that any failure to have any such licenses, authorizations, consents or approvals, to make any such filings or to obtain any such authorizations, consents or approvals would could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; neither the Company nor any of the Subsidiaries is required by any applicable law to obtain accreditation or certification from any governmental agency or authority in order to provide the products and services which it currently provides or which it proposes to provide as set forth in the Registration Statement and the Prospectus; neither the Company, nor any of the Subsidiaries is in violation of, in default under, or has received any notice regarding a possible violation, default or revocation of any such license, authorization, consent or approval or any federal, state, local or foreign law, regulation or rule or any decree, judgment or order or judgment applicable to the Company or any of the Subsidiaries Subsidiaries, the effect of which could reasonably be expected to result in a Material Adverse ChangeEffect; and no such license, authorization, consent or approval contains a materially burdensome restriction that is not adequately disclosed in each of the Registration Statement and the Prospectus; neither the Company nor any of the Subsidiaries is required by any applicable law to obtain accreditation or certification from any governmental agency or authority in order to provide the products and services that it currently provides or that it proposes to provide as set forth in the Prospectus except to the extent that any failure to have such accreditation or certification could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
j. (l) the Company meets and the transactions contemplated by this Agreement meet the requirements for the use of Form S-3 under the Securities Act; each of the Registration Statement and any Rule 462(b) Registration Statement has become effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement or any Rule 462(b) Registration Statement has been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Company, are contemplated or threatened by the Commission; and , and, to the knowledge of the Company, the Company has complied to the Commission’s 's satisfaction with any request on the part of the Commission for additional information;
k. (m) the Preliminary Prospectus and the Registration Statement as of each effective date (including each deemed effective date with respect to the Agent pursuant to Rule 430B or otherwise under the Securities Act) and as of the date hereof, complied or will comply, and the Prospectus and any further amendments or supplements to the Registration Statement or the Prospectus at the time they were filed with the Commission, were, or thereto will, when they have become effective or are filed with the Commission, as the case may be, comply, in all material respects with the requirements of the Securities Act, including Rule 415Act and the Securities Act Regulations; the documents incorporated by reference in the Registration Statement and the Prospectus, when they became effective or at the time they were or hereafter are filed with the Commission, complied and will comply in all material respects with the requirements of the Exchange Act;
l. the Registration Statement, as of each effective date (including each deemed effective date with respect to the Agent pursuant to Rule 430B or otherwise under the Securities Act), and as of the date hereof, and at each Settlement Date, did not, and does not or any amendment thereto will not not, in each case as of the applicable effective date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading; and the Preliminary Prospectus does not, and the Prospectus or any amendment or supplement thereto will not, as of its issue date, as of the applicable filing date, as of the date hereof and at the Closing Time and on each Settlement DateDate of Delivery (if any), contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no warranty or representation with respect to any statement contained in or omitted from the Registration Statement Statement, the Preliminary Prospectus or the Prospectus Prospectus, in reliance upon and in conformity with the information concerning the Agent Underwriters and furnished in writing by or on behalf of the Agent Underwriters through the Representatives to the Company expressly for use therein; in the documents Registration Statement, the Preliminary Prospectus or the Prospectus (that information being limited to that described in the penultimate sentence of the first paragraph of Section 9(b) hereof);
(n) each document incorporated by reference in the Prospectus or the Registration Statement (the "Incorporated Documents"), when it became effective or was filed with the Commission, as the case may be, conformed in all material respects to the requirements of the Securities Act or the Exchange Act, as applicable, and the Securities Act Regulations and the Exchange Act Regulations, and none of such documents contained or will contain an untrue statement of a material fact or omitted or will omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and, when read together with the other information in the Prospectus, at the time the Registration Statement became effective and at the Closing Date, each such incorporated document did not or when such documents incorporated by reference were filed with the Commissionwill not, as the case may be, when read together with the other information in the Registration Statement or the Prospectus, as the case may be, did not and will not include contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
m. as of (o) the issue date or date of first Preliminary Prospectus was and the Prospectus delivered to the Underwriters for use and at all subsequent times through each Settlement Date, each Issuer Free Writing Prospectus did not, and at the time of each sale of Placement Shares and at the Settlement date, each such Issuer Free Writing Prospectus will not, contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
n. each Issuer Free Writing Prospectus, if any, as of its issue date and at all subsequent times through the completion of the public offer and sale of the Placement Shares did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein, and any other prospectus deemed to be a part thereof that has not been superseded or modified;
o. the Company is eligible to use Free Writing Prospectuses in connection with this offering pursuant to Rules 164 and 433 under the Securities Act; any Free Writing Prospectus that the Company is required to file pursuant to Rule 433(d) has been, or will be, filed with the Commission in accordance with the requirements of the Securities Act; and each Free Writing Prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d) or that was prepared by or on behalf of or used by the Company complies or will comply in all material respects with the requirements of the Securities Act;
p. except for any Issuer Free Writing Prospectuses, the Company has not prepared, used or referred to, and will not, without the prior consent of the Agent, prepare, use or refer to, any Free Writing Prospectus;
q. the Prospectus and any Issuer Free Writing Prospectuses (to the extent any such Issuer Free Writing Prospectus was required to be filed with the Commission) delivered to the Agent for use in connection with the public offering of the Placement Shares contemplated herein have been and will be identical to the versions respective version of such documents the Preliminary Prospectus or Prospectus created to be transmitted to the Commission under the Securities Act for filing via ▇▇▇▇▇the Electronic Data Gathering Analysis and Retrieval System ("EDGAR"), except to the extent permitted by Regulation S-T under the Securities ActT;
r. the Company filed the Registration Statement with the Commission before using any Issuer Free Writing Prospectus;
s. (▇) there are no actions, suits, proceedings, inquiries or investigations pending or, to the knowledge of the Company or the Operating PartnershipCompany, threatened against the Company or any Subsidiary or any of their respective officers and directors or to which the properties, assets or rights of any such entity are subject, at law or in equity, before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority, arbitral panel or agency which agency, where in any such case (A) there is a reasonable possibility that such action, suit or proceeding will be determined adversely to the Company or such Subsidiary and (B) if so determined adversely, could reasonably be expected to result in a judgment, decree, award or order having a Material Adverse Effect;
t. (q) the consolidated financial statements, including the related supporting schedules and notes thereto, included in each of (or incorporated by reference into) the Registration Statement and the Prospectus present fairly the consolidated financial position of the Company and its subsidiaries entities to which such financial statements relate (the "Covered Entities") as of the dates indicated and their the consolidated results of operations and changes in financial position anand cash flows of the Covered Entities for the periods specified; such financial statements have been prepared in conformity with generally accepted accounting principles as applied in the United States and on a consistent basis during the periods involved and in
Appears in 1 contract
Sources: Underwriting Agreement (Ashford Hospitality Trust Inc)
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, represent and warrant to, and agree with to the Agent Underwriters as of the date of this Agreementhereof, as of each Representation Date the Initial Sale Time (as defined below), as of the time of Closing Time, and agrees with each sale of Placement Shares pursuant to this Agreement and as of each Settlement DateUnderwriter, unless such representation, warranty or agreement specifies a different date or timethat:
a. (a) the Company has the authorized and outstanding capitalization as set forth in the Registration Statement Statement, the Prospectus and the ProspectusDisclosure Package under the section captioned “Capitalization”; the outstanding shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessablenonassessable. All of the outstanding shares of capital stock, partnership interests and membership interests, as the case may be, of the subsidiaries of the Company identified on Schedule 4 IV hereto (each, a “Subsidiary”) have been duly authorized and are validly issued, fully paid and non-assessable nonassessable securities thereof and, except as disclosed in the ProspectusRegistration Statement, the Prospectus and the Disclosure Package, all of the outstanding shares of capital stock, partnership interest or membership interests, as the case may be, of the Subsidiaries are directly or indirectly owned of record and beneficially by the Company; except as disclosed in the ProspectusRegistration Statement, the Prospectus and the Disclosure Package, there are no outstanding (i) securities or obligations of the Company or any of the Subsidiaries convertible into or exchangeable for any capital stock of the Company or any such Subsidiary, (ii) warrants, rights or options to subscribe for or purchase from the Company or any such Subsidiary any such capital stock or any such convertible or exchangeable securities or obligations, or (iii) obligations of the Company or any such Subsidiary to issue any shares of capital stock, any such convertible or exchangeable securities or obligation, or any such warrants, rights or options; all issued and outstanding units of partnership interest in the Operating Partnership (“Units”) owned by the Company are owned free and clear of any perfected security interest or any other security interests, claims, liens or encumbrances;
b. (b) each of the Company and each of the Subsidiaries has been duly incorporated, formed or organized and is validly existing as a corporation, general or limited partnership or limited liability company in good standing under the laws of its respective jurisdiction of incorporation, formation or organization with full power and authority to own its respective properties and to conduct its respective businesses as described in each of the Registration Statement Statement, the Prospectus and the ProspectusDisclosure Package, and, in the case of the Company and the Operating Partnership, to execute and deliver this Agreement the Transaction Documents (as defined below), as applicable, and to consummate the transactions contemplated herein therein and to perform its the obligations of the Company and the Operating Partnership, as applicable, under the Amended and Restated Management Agreement, dated October 27, 2015, by and among the Company, the Operating Partnership and the Manager (the “Management Agreement”);
c. (c) the Company and each of the Subsidiaries is duly qualified or licensed and in good standing in each jurisdiction in which it conducts its businesses or in which it owns or leases real property or otherwise maintains an office and in which the failure, individually or in the aggregate, to be so qualified or licensed would have a material adverse effect on the assets, business, operations, earnings, prospects, properties or condition (financial or otherwise) of the Company and the Subsidiaries taken as a whole, (any such effect or change, where the context so requires, is hereinafter called a “Material Adverse Effect” or “Material Adverse Change”); except as disclosed in the ProspectusRegistration Statement, the Prospectus and the Disclosure Package, no Subsidiary is prohibited or restricted, directly or indirectly, from paying dividends to the Company, or from making any other distribution with respect to such Subsidiary’s capital stock or from repaying to the Company or any other Subsidiary any amounts which may from time to time become due under any loans or advances to such Subsidiary from the Company or such other Subsidiary, or from transferring any such Subsidiary’s property or assets to the Company or to any other Subsidiary; other than as disclosed in the ProspectusRegistration Statement, the Prospectus and the Disclosure Package, the Company and the Operating Partnership do not own, directly or indirectly, any capital stock or other equity securities of any other corporation or any ownership interest in any partnership, joint venture or other association;
d. (d) the Company and the Subsidiaries are in compliance in all material respects with all applicable laws, rules, regulations, orders, decrees and judgments, including those relating to transactions with affiliates;
e. (e) neither the Company nor any Subsidiary is in breach of or in default under (nor has any event occurred which with notice, lapse of time, or both would constitute a breach of, or default under), (i) its respective charter, bylaws, agreement of limited partnership, operating agreement or other similar organizational documents (the “Organizational Documents”), (ii) the performance or observance of any obligation, agreement, covenant or condition contained in any license, indenture, mortgage, deed of trust, loan or credit agreement or other agreement or instrument to which the Company or any Subsidiary is a party or by which any of them or their respective properties is bound, or (iii) any federal, state, local or foreign law, regulation or rule or any decree, judgment, permit or order (each, a “Law”) applicable to the Company or any Subsidiary, except, in the case of clauses (ii) and (iii) above, for such breaches or defaults which would not, individually or in the aggregate, have a Material Adverse Effect;
f. (f) the issuance and sale of the Notes, the execution, delivery and performance of this Agreement, the Indenture and the Notes (collectively, the “Transaction Documents”) and the consummation of the transactions contemplated herein and thereunder (including the issuance of the Conversion Shares upon conversion of the Notes) will not (A) conflict with, or result in any breach of, or constitute a default under (nor constitute any event which with notice, lapse of time, or both would constitute a breach of, or default under), (i) any provision of the Organizational Documents of the Company or any Subsidiary, or (ii) any provision of any license, indenture, mortgage, deed of trust, loan or credit agreement or other agreement or instrument to which the Company or any Subsidiary is a party or by which any of them or their respective properties may be bound or affected, or under any Law applicable to the Company or any Subsidiary, except in the case of this clause (ii) for such breaches or defaults which would not, individually or in the aggregate, have a Material Adverse Effect; or (B) result in the creation or imposition of any lien, charge, claim or encumbrance upon any property or asset of the Company or any Subsidiary;
g. (g) this Agreement and the Management Agreement have been duly authorized, executed and delivered by the Company and the Operating Partnership and each is a legal, valid and binding agreement of the Company and the Operating Partnership enforceable in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, and by general equitable principles, and except to the extent that the indemnification and contribution provisions of Section 12 10 hereof may be limited by federal or state securities laws and public policy considerations in respect thereof;
h. (h) the Commission has not issued any order preventing or suspending the use of any Preliminary Prospectus;
(i) (i) no approval, authorization, consent or order of or filing with any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency is required in connection with the execution, delivery and performance of this Agreement the Transaction Documents by the Company or the Operating Partnership, as applicable, their consummation of the transactions contemplated herein, and herein or thereunder (including the Company’s sale and delivery of the Placement SharesNotes and the Company’s issuance of the Conversion Shares upon conversion thereof), other than (A) such as have been obtained, or will have been obtained at the relevant Settlement Date, Closing Time under the Securities Act, the Trust Indenture Act (as defined below) and the Exchange Act, (B) such approvals as have been obtained in connection with the approval of the listing of the Placement Shares Securities on the Exchange, New York Stock Exchange (the “NYSE”) (C) such as have been obtained or made under the rules and regulations of the Financial Industry Regulatory Authority (“FINRA”) and (D) any necessary qualification under the securities or blue sky laws of the various jurisdictions in which the Placement Shares Securities are being offered by the AgentUnderwriters;
i. (j) each of the Company and the Subsidiaries has all necessary licenses, authorizations, consents and approvals and has made all necessary filings required under any Law, and has obtained all necessary authorizations, consents and approvals from other persons, required in order to conduct their respective businesses as described in the Registration Statement Statement, Prospectus and the ProspectusDisclosure Package, except to the extent that any failure to have any such licenses, authorizations, consents or approvals, to make any such filings or to obtain any such authorizations, consents or approvals would not, individually or in the aggregate, have a Material Adverse Effect; neither the Company nor any of the Subsidiaries is required by any applicable law to obtain accreditation or certification from any governmental agency or authority in order to provide the products and services which it currently provides or which it proposes to provide as set forth in the Registration Statement Statement, Prospectus and the ProspectusDisclosure Package; neither the Company, nor any of the Subsidiaries is in violation of, in default under, or has received any notice regarding a possible violation, default or revocation of any such license, authorization, consent or approval or any federal, state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Company or any of the Subsidiaries the effect of which could result in a Material Adverse Change; and no such license, authorization, consent or approval contains a materially burdensome restriction that is not adequately disclosed in each of the Registration Statement Statement, the Prospectus and the ProspectusDisclosure Package;
j. (k) the Company meets the requirements for use of Form S-3 under the Securities Act; each of the Registration Statement and any Rule 462(b) Registration Statement has become effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement or any Rule 462(b) Registration Statement has been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Company, are contemplated or threatened by the Commission; and the Company has complied to the Commission’s satisfaction with any request on the part of the Commission for additional information;
k. (l) the Preliminary Prospectus when filed and the Registration Statement as of each effective date (including each deemed effective date with respect to the Agent Underwriters pursuant to Rule 430B or otherwise under the Securities Act) and as of the date hereof, complied or will comply, and the Prospectus and any further amendments or supplements to the Registration Statement Statement, the Preliminary Prospectus or the Prospectus at the time they were filed with the Commission, were, or will, when they become effective or are filed with the Commission, as the case may be, comply, in all material respects with the requirements of the Securities Act and the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission thereunder (the “Trust Indenture Act, including Rule 415”); the documents incorporated by reference in the Registration Statement and the Prospectus, when they became effective or at the time they were or hereafter are filed with the Commission, complied and will comply in all material respects with the requirements of the Exchange Act;
l. (m) the Registration Statement, as of each effective date (including each deemed effective date with respect to the Agent Underwriters pursuant to Rule 430B or otherwise under the Securities Act), ) and as of the date hereof, hereof and at each Settlement Datethe Closing Time, did not, and does not or will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and the Preliminary Prospectus does not, and the Prospectus or any amendment or supplement thereto will not, as of its issue date, as of the applicable filing date, as of the date hereof and at each Settlement Date, the Closing Time contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no warranty or representation with respect to any statement contained in or omitted from the Registration Statement Statement, the Preliminary Prospectus or the Prospectus in reliance upon and in conformity with the information concerning the Agent Underwriters and furnished in writing by or on behalf of the Agent Underwriters by the Representatives to the Company expressly for use thereintherein (that information being limited to that described in the last sentence of the first paragraph of Section 10(b) hereof); the documents incorporated by reference in the Registration Statement Statement, the Prospectus and the ProspectusDisclosure Package, at the time the Registration Statement became effective or when such documents incorporated by reference were filed with the Commission, as the case may be, when read together with the other information in the Registration Statement or Statement, the ProspectusProspectus and the Disclosure Package, as the case may be, did not and will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
m. (n) as of 9:10 a.m. (Eastern time) on November 15, 2018 (the “Initial Sale Time”), the Disclosure Package did not, and at the time of each sale of Notes and at the Closing Time, the Disclosure Package will not, contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; as of the issue date or date of first use and at all subsequent times through each Settlement Datethe Initial Sale Time, each Issuer Free Writing Prospectus did not, and at the time of each sale of Placement Shares Notes and at the Settlement dateClosing Time, each such Issuer Free Writing Prospectus will not, contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no warranty or representation with respect to any statement contained in or omitted from the Disclosure Package in reliance upon and in conformity with the information concerning the Underwriters and furnished in writing by or on behalf of the Underwriters by the Representatives to the Company expressly for use therein (that information being limited to that described in the last sentence of the first paragraph of Section 10(b) hereof);
n. (o) each Issuer Free Writing ProspectusProspectus (including the Final Term Sheet), if any, as of its issue date and at all subsequent times through the completion of the public offer and sale of the Placement Shares Notes did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement Statement, Preliminary Prospectus or the Prospectus, including any document incorporated by reference therein, and any preliminary or other prospectus deemed to be a part thereof that has not been superseded or modified;
o. (p) the Company is eligible to use Free Writing Prospectuses in connection with this offering pursuant to Rules 164 and 433 under the Securities Act; any Free Writing Prospectus that the Company is required to file pursuant to Rule 433(d) has been, or will be, filed with the Commission in accordance with the requirements of the Securities Act; and each Free Writing Prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d) or that was prepared by or on behalf of or used by the Company complies or will comply in all material respects with the requirements of the Securities Act;
p. except for any Issuer Free Writing Prospectuses, the Company has not prepared, used or referred to, and will not, without the prior consent of the Agent, prepare, use or refer to, any Free Writing Prospectus;
q. the Prospectus and any Issuer Free Writing Prospectuses (to the extent any such Issuer Free Writing Prospectus was required to be filed with the Commission) delivered to the Agent for use in connection with the public offering of the Placement Shares contemplated herein have been and will be identical to the versions of such documents transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T under the Securities Act;
r. the Company filed the Registration Statement with the Commission before using any Issuer Free Writing Prospectus;
s. there are no actions, suits, proceedings, inquiries or investigations pending or, to the knowledge of the Company or the Operating Partnership, threatened against the Company or any Subsidiary or any of their respective officers and directors or to which the properties, assets or rights of any such entity are subject, at law or in equity, before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority, arbitral panel or agency which could result in a judgment, decree, award or order having a Material Adverse Effect;
t. the consolidated financial statements, including the notes thereto, included in each of the Registration Statement and the Prospectus present fairly the consolidated financial position of the Company and its subsidiaries as of the dates indicated and their consolidated results of operations and changes in financial position anpursuant
Appears in 1 contract
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, represent and warrant to, and agree with the Agent to each Underwriter that:
(a) (i) as of the date of this Agreementhereof, as of each Representation Date (as defined below), as of the time of each sale of Placement Shares pursuant to this Agreement and as of each Settlement Date, unless such representation, warranty or agreement specifies a different date or time:
a. the Company has the an authorized and outstanding capitalization as set forth in the Registration Statement and Prospectus in the Prospectus; section entitled "Capitalization" under the outstanding heading "Historical Predecessor;" all of the issued shares of capital stock stock, the partnership interests, membership interests or other equity interests, as the case may be, of the Company and each subsidiary of the Company listed on Schedule II hereto (each, a "Subsidiary"), have been been, or will be when issued upon consummation of the Formation Transactions, duly and validly authorized and issued and are fully paid and non-assessable. All nonassessable; all of the outstanding shares of capital stockstock of or the partnership interests, partnership membership interests and membership interestsor other equity interests in the Subsidiaries (other than the Operating Partnership), as the case may be, are, or will be upon consummation of the subsidiaries of the Company identified on Schedule 4 hereto (eachFormation Transactions, a “Subsidiary”) have been duly authorized and are validly issued, fully paid and non-assessable securities thereof and, except as disclosed in the Prospectus, all of the outstanding shares of capital stock, partnership interest or membership interests, as the case may be, of the Subsidiaries are directly or indirectly owned of record and beneficially by the Company; except as disclosed in the Prospectus, there are no outstanding (i) securities or obligations of the Company or any of the Subsidiaries convertible into or exchangeable for any capital stock of or partnership interests, membership interests or other equity interests, as the case may be, in the Company or any such Subsidiary, (ii) warrants, rights or options to subscribe for or purchase from the Company or any such Subsidiary any such capital stock or any such convertible or exchangeable securities or obligations, obligations or (iii) obligations of the Company or any such Subsidiary to issue any shares of capital stocksecurities or obligations, any such convertible or exchangeable securities or obligationobligations, or any such warrants, rights or options; all issued and outstanding units of partnership interest in the Operating Partnership (“Units”) owned by the Company are owned free and clear of any perfected security interest or any other security interests, claims, liens or encumbrances;
b. (b) each of the Company and each of the Subsidiaries has been duly incorporated, formed incorporated or organized and is validly existing as a corporation, general or limited partnership or limited liability company company, as the case may be, in good standing under the laws of its respective jurisdiction of incorporation, formation incorporation or organization with full corporate, partnership or limited liability company power and authority to own its respective properties and to conduct its respective businesses business as described in each of the Registration Statement and the Prospectus, and, Prospectus and in the case of the Company Company, to execute and deliver this Agreement and in the case of the Operating Partnership, to execute and deliver this Agreement and the Formation Agreements to which it is a party and to consummate the transactions contemplated herein and to perform its obligations under the Amended and Restated Management Agreement, dated October 27, 2015, by and among the Company, the Operating Partnership and the Manager (the “Management Agreement”)described in each such agreement;
c. (c) each of the Company and each of the Subsidiaries is duly qualified or licensed to conduct business and is in good standing in each jurisdiction in which it conducts the conduct of its businesses business or in which it owns or leases the ownership of its real property or otherwise maintains an office and requires such qualification except for such jurisdictions in which the failure, individually or in the aggregate, to be so qualified or licensed would not reasonably be expected to have a material adverse effect on the assets, business, operations, earnings, prospects, properties or condition (financial or otherwise) of the Company and the Subsidiaries Subsidiaries, taken as a whole, whole (any such effect or changeeffect, where the context so requires, is hereinafter called a “"Material Adverse Effect” or “Material Adverse Change”"); except as disclosed in the Prospectus, no Subsidiary is prohibited or restricted, directly or indirectly, from paying dividends to the Company, or from making any other distribution with respect to such Subsidiary’s 's capital stock stock, partnership interests, membership interests or other equity interests, as the case may be, from repaying to the Company or any other Subsidiary any amounts which may from time to time become due under any loans or advances to such Subsidiary from the Company or such other Subsidiary, or from transferring any such Subsidiary’s 's property or assets to the Company or to any other Subsidiary; other than except as disclosed in the Prospectus, the Company and the Operating Partnership do does not own, directly or indirectly, any capital stock or other equity securities of any other corporation or any ownership interest in any partnership, limited liability company, joint venture or other associationentity;
d. (d) the Agreement of Limited Partnership of the Operating Partnership (the "Partnership Agreement") has been duly and validly authorized, executed and delivered by or on behalf of the partners of the Operating Partnership and constitutes a valid and binding agreement of the parties thereto, enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally or by general principles of equity;
(e) upon completion of the offering of the Shares, the Company and/or one or more wholly-owned subsidiaries of the Company will be the holder of OP Units representing an ownership interest in the Operating Partnership in the amounts described in the Prospectus, free and clear of any pledge, lien, encumbrance, security interest or other claim and a wholly-owned subsidiary of the Company will be the sole general partner of the Operating Partnership;
(f) the Company and the Subsidiaries are in compliance in all material respects with all applicable laws, rules, regulations, orders, decrees and judgments, including those relating to transactions with affiliates;
e. (g) neither the Company nor any Subsidiary of the Subsidiaries is in breach of or in default under (nor has any event occurred which with notice, lapse of time, or both would constitute a breach of, or default under), (i) its respective charterorganizational documents, bylaws, agreement of limited partnership, operating agreement or other similar organizational documents (the “Organizational Documents”), (ii) in the performance or observance of any obligation, agreement, covenant or condition contained in any license, indenture, mortgage, deed of trust, loan or credit agreement or other agreement or instrument to which the Company or any Subsidiary is a party or by which any of them or their respective properties is bound, or (iii) any federal, state, local or foreign law, regulation or rule or any decree, judgment, permit or order (each, a “Law”) applicable to the Company or any Subsidiary, except, in the case of clauses (ii) and (iii) above, except for such breaches or defaults which would not, individually or in the aggregate, not reasonably be expected to have a Material Adverse Effect;
f. (h) the execution, delivery and performance of this Agreement, Agreement and the Formation Agreements by the Company and the Operating Partnership (to the extent a party thereto) and consummation by the Company and the Operating Partnership (to the extent a party thereto) of the transactions contemplated herein by this Agreement and the Formation Agreements do not and will not (A) conflict with, or result in any breach of, or constitute a default under (nor constitute any event which with notice, lapse of time, or both would constitute a breach of, or default under), ) (i) any provision of the Organizational Documents organizational documents of the Company or any Subsidiary, or (ii) any provision of any license, indenture, mortgage, deed of trust, loan or credit agreement or other agreement or instrument to which the Company or any Subsidiary is a party or by which any of them or their respective assets or properties may be bound or affected, or under any Law U.S. federal, state, local or foreign law, regulation or rule or any decree, judgment or order applicable to the Company or any Subsidiary, except in the case of this clause (ii) for such breaches or defaults which would not, individually or in the aggregate, not reasonably be expected to have a Material Adverse Effect; Effect or (B) result in the creation or imposition of any lien, charge, claim or encumbrance upon any property or asset of the Company or any Subsidiary;
g. (i) this Agreement and the Management Agreement have has been duly authorized, executed and delivered by each of the Company and the Operating Partnership and each is a legal, valid and binding agreement of each of the Company and the Operating Partnership Partnership, enforceable in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ ' rights generally, and by general equitable principlesprinciples of equity, and except to the extent that the indemnification and contribution provisions of Section 12 9 hereof may be limited by U.S. federal or state securities laws and public policy considerations in respect thereof;
h. (j) the execution and delivery of the Formation Agreements and each of the documents, agreements and instruments executed and delivered in connection therewith, and the consummation of the transactions contemplated by the foregoing, has been duly authorized by all necessary corporate or other action by the Company, the Operating Partnership and the other parties to the Formation Agreements, including, but not limited to, any vote of the stockholders or other holders of equity interests which may be required by the applicable organizational document, or applicable state law, and the Formation Agreements are sufficient to effect the valid transfer to the Operating Partnership of all real property and other assets specified in the Formation Agreements, upon payment of the consideration therefor;
(k) the Formation Agreements to which the Company, the Operating Partnership or any other Subsidiary is a party have been duly authorized, executed and delivered by the Company, the Operating Partnership and each other Subsidiary (to the extent a party thereto) and are legal, valid and binding agreements of the Company, the Operating Partnership [and each other Subsidiary (to the extent a party thereto),] enforceable in accordance with their respective terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally, and by general equitable principles;
(l) no approval, authorization, consent or order of or filing with any U.S. federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency having jurisdiction over the Company (each, a "Governmental Authority") is required in connection with the execution, delivery and performance of this Agreement or the Formation Agreements, the consummation of the transactions contemplated herein or therein by the Company or the Operating Partnership, their consummation of Partnership (to the transactions contemplated hereinextent a party thereto), and the Company’s 's sale and delivery of the Placement Shares, Shares as contemplated hereby other than (A) such as have been obtained, or will have been obtained at or prior to the Closing Time or the relevant Settlement DateDate of Delivery, as the case may be, under the Securities Act and the Securities Exchange Act of 1934 (the "Exchange Act"), (B) such approvals as have been obtained in connection with the approval of the listing of the Placement Shares on the Exchange, New York Stock Exchange and (C) such as have been obtained or made under the rules and regulations of the Financial Industry Regulatory Authority (“FINRA”) and (D) any necessary qualification under the securities or "blue sky sky" laws of the various jurisdictions in which the Placement Shares are being offered by the AgentUnderwriters;
i. (m) each of the Company and the Subsidiaries has has, and will have upon consummation of the Formation Transactions, all necessary licenses, authorizations, consents and approvals and has made all necessary filings required under any LawU.S. federal, state, local or foreign law, regulation or rule (except that neither the Company not any Subsidiary organized under the laws of any state other than the State of Arizona has received a confirmation of from the State of Arizona as to its foreign qualification status), and has obtained all necessary authorizations, consents and approvals from other persons, required in order to conduct their respective businesses its business as described in the Registration Statement and the Prospectus, except to the extent that any failure to have any such licenses, authorizations, consents or approvals, to make any such filings or to obtain any such authorizations, consents or approvals would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; neither the Company nor any of the Subsidiaries is required by any applicable law to obtain accreditation or certification from any governmental agency or authority in order to provide the products and services which it currently provides or which it proposes to provide as set forth in the Registration Statement and the Prospectus; neither the Company, nor any of the Subsidiaries Subsidiary is in violation of, in default under, or has received any notice regarding a possible violation, default or revocation of any such license, authorization, consent or approval or any U.S. federal, state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Company or any of the Subsidiaries the effect of Subsidiary, which could result in would reasonably be expected to have a Material Adverse ChangeEffect; and no such license, authorization, consent or approval contains a materially burdensome restriction which would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect that is not adequately disclosed in each of the Registration Statement and the Prospectus;
j. (n) each of the Registration Statement, the Registration Statement on Form 8-A filed with the Commission by the Company meets (the requirements for use of "Form S-3 under the Securities Act; the 8-A") and any Rule 462(b) Registration Statement has become effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement, any Rule 462(b) Registration Statement or the Form 8-A has been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Company, are contemplated or threatened by the Commission; , and the Company has complied to the Commission’s 's satisfaction with any request on the part of the Commission for additional information;
k. (o) the Preliminary Prospectus, the Registration Statement as of each effective date (including each deemed effective date with respect to and the Agent pursuant to Rule 430B or otherwise under the Securities Act) and as of the date hereof, complied or will Form 8-A comply, and the Prospectus and any further amendments or supplements to the Registration Statement or the Prospectus at the time they were filed with the Commission, were, or thereto will, when they have become effective or are filed with the Commission, as the case may be, comply, in all material respects with the requirements of the Securities Act, including Rule 415Act and the Securities Act Regulations; the documents incorporated by reference in the Registration Statement and the Prospectus, when they became effective or at the time they were or hereafter are filed with the Commission, complied and will comply in all material respects with the requirements of the Exchange Act;
l. the Registration Statement, as of each effective date (including each deemed effective date with respect to the Agent pursuant to Rule 430B or otherwise under the Securities Act), and as of the date hereof, and at each Settlement Date, Form 8-A did not, and does not or any amendment thereto will not not, in each case as of the applicable effective date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and the Preliminary Prospectus does not, and the Prospectus or any amendment or supplement thereto will not, as of its issue date, as of the applicable respective filing date, as of the date hereof and at the Closing Time and on each Settlement DateDate of Delivery (if any), contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no warranty or representation with respect to any statement contained in or omitted from the Registration Statement or the Prospectus in reliance upon and in conformity with the information concerning the Agent Underwriters and furnished in writing by or on behalf of the Agent Underwriters through the Representative to the Company expressly for use therein; the documents incorporated by reference in the Registration Statement and the Prospectus, at the time the Registration Statement became effective or when such documents incorporated by reference were filed with the Commission, as the case may be, when read together with the other information in the Registration Statement or the Prospectus, as Prospectus (that information being limited to that described in the case may be, did not and will not include an untrue statement penultimate sentence of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleadingfirst paragraph of Section 9(c) hereof);
m. as of (p) the issue date or date of first use and at all subsequent times through each Settlement Date, each Issuer Free Writing Preliminary Prospectus did notwas, and at the time of each sale of Placement Shares and at Prospectus delivered to the Settlement date, each such Issuer Free Writing Prospectus will not, contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
n. each Issuer Free Writing Prospectus, if any, as of its issue date and at all subsequent times through the completion of the public offer and sale of the Placement Shares did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein, and any other prospectus deemed to be a part thereof that has not been superseded or modified;
o. the Company is eligible to Underwriters for use Free Writing Prospectuses in connection with this offering pursuant to Rules 164 and 433 under the Securities Act; any Free Writing Prospectus that the Company is required to file pursuant to Rule 433(d) has been, or will be, filed with the Commission in accordance with the requirements of the Securities Act; and each Free Writing Prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d) or that was prepared by or on behalf of or used by the Company complies or will comply in all material respects with the requirements of the Securities Act;
p. except for any Issuer Free Writing Prospectuses, the Company has not prepared, used or referred to, and will not, without the prior consent of the Agent, prepare, use or refer to, any Free Writing Prospectus;
q. the Prospectus and any Issuer Free Writing Prospectuses (to the extent any such Issuer Free Writing Prospectus was required to be filed with the Commission) delivered to the Agent for use in connection with the public offering of the Placement Shares contemplated herein have been and will be identical to the versions of such documents the Preliminary Prospectus and Prospectus, respectively, created to be transmitted to the Commission for filing via the Electronic Data Gathering Analysis and Retrieval System ("▇▇▇▇▇"), except to the extent permitted by Regulation S-T under the Securities ActT;
r. the Company filed the Registration Statement with the Commission before using any Issuer Free Writing Prospectus;
s. (q) there are no actions, suits, proceedings, inquiries or investigations pending or, to the knowledge of the Company or the Operating PartnershipCompany, threatened against the Company or any Subsidiary (other than ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Harrisburg, LP) or any of their respective officers and directors or to which the properties, assets or rights of any such entity (including any properties, assets or rights to be acquired upon consummation of the Formation Transactions) are subject, at law or in equity, before or by any federal, state, local Governmental Authority or foreign governmental or regulatory commission, board, body, authority, arbitral panel or agency which could would reasonably be expected to result in a judgment, decree, award or order having a Material Adverse Effect;
t. (r) there are no actions, suits, proceedings, inquiries or investigations pending or, to the consolidated financial statements, including the notes thereto, included in each knowledge of the Registration Statement Company, threatened against ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Harrisburg, LP or any of its respective officers and directors or to which the Prospectus present fairly the consolidated financial position properties, assets or rights of any such entity (including any properties, assets or rights to be acquired upon consummation of the Company and its subsidiaries as Formation Transactions) are subject, except for actions solely relating to or affecting the partnership interests held by the limited partners of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Harrisburg, LP (other than ▇▇▇▇▇▇▇ Harrisburg Limited Partnership LP), at law or in equity, before or by any Governmental Authority or arbitral panel which would reasonably be expected to result in a judgment, decree, award or order having a Material Adverse Effect;
(s) the dates indicated and their consolidated results of operations and changes in financial position anstatement
Appears in 1 contract
Sources: Underwriting Agreement (Feldman Mall Properties, Inc.)
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, Partnership represent and warrant to, and agree with to each Underwriter that:
(a) the Agent as authorized shares of beneficial interest of the date of this Agreement, as of each Representation Date (as defined below), as of Company conform in all material respects to the time of each sale of Placement Shares pursuant to this Agreement and as of each Settlement Date, unless such representation, warranty or agreement specifies a different date or time:
a. description thereof contained in the Prospectus; the Company has the authorized an authorized, issued and outstanding capitalization as set forth in the Registration Statement and Prospectus under the caption "Capitalization" (other than for subsequent issuances, if any, pursuant to employee benefit plans described in the Prospectus or upon exercise of outstanding options or warrants described in the Prospectus); at the First Closing Date, 42,298,008 Common Shares will be issued and outstanding and no other shares of beneficial interest will be issued and outstanding; the outstanding shares of beneficial interest of the Company and the outstanding shares of beneficial interest and capital stock of each subsidiary of the Company Company, all of which are listed on Exhibit 21 to the Registration Statement (each, including the Operating Partnership, except where noted, a "Subsidiary" and, collectively, "Subsidiaries") including Common Shares owned by Selling Shareholders have been duly and validly authorized and issued and are fully paid and non-assessable. All of the outstanding shares of capital stocknonassessable, partnership interests and membership interests, as in the case may beof limited liability company membership interests or units of limited partnership interest, of the subsidiaries of the Company identified on Schedule 4 hereto (each, a “Subsidiary”) have been duly and validly authorized and issued and are validly issuedfully paid, fully paid have been issued in compliance with federal and non-assessable state securities thereof andlaws, and except as disclosed in the ProspectusProspectus with respect to First States Partners II, L.P., all of the outstanding shares of beneficial interest, capital stock, units of limited partnership interest or and limited liability company membership interests, as the case may be, interests of the Subsidiaries Subsidiaries, excluding the Operating Partnership, are directly or indirectly owned of record and beneficially by the Company; except as disclosed in the Prospectus, there are no outstanding (i) securities or obligations of the Company or any of the Subsidiaries convertible into or exchangeable for any capital stock equity interests of the Company or any such Subsidiary, (ii) warrants, rights or options to subscribe for or purchase from the Company or any such Subsidiary any such capital stock equity interests or any such convertible or exchangeable securities or obligations, obligations or (iii) obligations of the Company or any such Subsidiary to issue any shares of capital stockequity interests, any such convertible or exchangeable securities or obligation, or any such warrants, rights or options; all issued the descriptions of the Company's share option, bonus and outstanding units of partnership interest other share plans or arrangements, and the options or other rights granted thereunder, set forth in the Operating Partnership Prospectus accurately and fairly present the information required to be disclosed with respect to such plans, arrangements, options and rights.
(“Units”b) owned by the Company are owned free and clear of any perfected security interest or any other security interests, claims, liens or encumbrances;
b. each of the Company and each of the Subsidiaries has been duly incorporated, formed or organized and is validly existing as a corporation, general or limited partnership or limited liability company in good standing real estate investment trust under the laws of its respective jurisdiction the State of incorporationMaryland and is in good standing with the State Department of Assessments and Taxation of Maryland (the "SDAT"), formation or organization with full all requisite trust power and authority to own own, lease and operate its respective properties properties, and to conduct its respective businesses business as described in each of the Registration Statement and the Prospectus, and, in the case of the Company and the Operating Partnership, to execute and deliver this Agreement and to consummate the transactions contemplated herein and to perform its obligations under the Amended and Restated Management Agreement, dated October 27, 2015, by and among the Company, the Operating Partnership and the Manager (the “Management Agreement”);
c. the Company and each of the Subsidiaries is duly qualified as a foreign entity to transact business or licensed and is in good standing in each jurisdiction in which it conducts the nature or conduct of its businesses business requires such qualification or in which it owns or leases real property or otherwise maintains an office license and in which the failure, individually or in the aggregate, to be so qualified or licensed would could, individually or in the aggregate, reasonably be expected to have a material adverse effect on the assets, business, operations, earnings, prospects, properties or condition (financial or otherwise) ), of the Company and the Subsidiaries taken as a whole, whole (any such effect or change, where the context so requires, is hereinafter called a “"Material Adverse Effect” " or “"Material Adverse Change”"); except as disclosed in the Prospectus, all of the issued and outstanding shares of beneficial interest, capital stock, limited liability company membership interests or units of limited partnership interests of each Subsidiary are owned by the Company directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim; except as disclosed in the Prospectus, no Subsidiary is prohibited or restricted, directly or indirectly, from paying dividends to the Company, or from making any other distribution with respect to such Subsidiary’s 's capital stock or from repaying to the Company or any other Subsidiary any amounts which may from time to time become due under any loans or advances to such Subsidiary from the Company or such other Subsidiary, or from transferring any such Subsidiary’s 's property or assets to the Company or to any other Subsidiary; other than as disclosed in the ProspectusProspectus and the next paragraph, the Company and the Operating Partnership do does not own, directly or indirectly, any capital stock or other equity securities of any other corporation or any ownership interest in any partnership, joint venture or other association;.
d. (c) upon completion of the offering of the Shares (i) the Company will be a holder of units of limited partnership interest in the Operating Partnership (the "Units") representing an approximate 95.5% interest in the Operating Partnership, (ii) First States Group, LLC (the "General Partner") will be the holder of Units representing an approximate 0.50% interest in the Operating Partnership, as its sole general partner, and (iii) the Company will own a 100% membership interest in the General Partner; the Subsidiaries have been duly incorporated, formed or organized, as the case may be, and are validly existing as a corporation, limited liability company, general partnership or limited partnership, as the case may be, in good standing under the laws of their respective jurisdictions of incorporation, formation or organization, as applicable, with all requisite power and authority to own, lease and operate their respective properties and to conduct their respective business as described in the Registration Statement and the Prospectus; each Subsidiary is duly qualified to transact business or licensed as a foreign corporation, foreign limited partnership or foreign limited liability company, as applicable, and is in good standing in each jurisdiction in which the conduct or nature of their business requires such qualification or license, and in which the failure to be so qualified or licensed could, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(d) the Amended and Restated Agreement of Limited Partnership of the Operating Partnership, as further amended and/or restated (the "Partnership Agreement"), has been duly and validly authorized, executed and delivered by or on behalf of the partners of the Operating Partnership and constitutes a valid and binding agreement of the parties thereto, enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally or by general principles of equity.
(e) the Company has delivered to the Representatives two complete manually signed copies of the Registration Statement and of each consent and certificate of experts filed as a part thereof, and conformed copies of the Registration Statement (without exhibits) and the Preliminary Prospectus, as amended or supplemented, in such quantities and at such places as the Representatives have reasonably requested for each of the Underwriters.
(f) the Company has not distributed and will not distribute, prior to the later of the last Option Closing Date or the completion of the Underwriters' distribution of the Shares, any offering material in connection with the offering and sale of the Shares other than a Preliminary Prospectus, the Prospectus and the Registration Statement.
(g) the Company and the Subsidiaries are in compliance in all material respects with all applicable laws, rules, regulations, orders, decrees and judgments, including those relating to transactions with affiliates;, except where any failures to be in compliance could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
e. (h) the Company is not in violation of its Amended and Restated Declaration of Trust, as amended or restated (the "Declaration of Trust") or Bylaws; the Operating Partnership is not in violation of its Certificate of Limited Partnership or the Partnership Agreement, and, to our knowledge, no Subsidiary is in violation of its applicable organizational documents (including, without limitation, partnership and limited liability company agreements); neither the Company nor any Subsidiary is in breach of or default in default under (nor has any event occurred which with notice, lapse of time, or both would constitute a breach of, or default under), (i) its respective charter, bylaws, agreement of limited partnership, operating agreement or other similar organizational documents (the “Organizational Documents”), (iiin) the performance or observance by the Company or any Subsidiary, as the case may be, of any obligation, agreement, contract, franchise, covenant or condition contained in any license, indenture, mortgage, deed of trust, loan or credit agreement agreement, lease or other agreement or instrument to which the Company or any Subsidiary is a party or by which any of them or their respective properties is bound, or (iii) any federal, state, local or foreign law, regulation or rule or any decree, judgment, permit or order (each, a “Law”) applicable to the Company or any Subsidiary, except, in the case of clauses (ii) and (iii) above, except for such breaches or defaults which would notwhich, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect;.
f. (i) the execution, delivery and performance of this Agreement, the issuance, sale and delivery by the Company of the Shares and the consummation of the transactions contemplated herein will not (A) conflict with, or result in any breach of, or constitute a default under (nor constitute any event which with notice, lapse of time, or both would constitute a breach of, or default under), default) (i) by the Company of any provisions of its Declaration of Trust or Bylaws, by the Operating Partnership of any provisions under its Certificate of Limited Partnership or Partnership Agreement, by any Subsidiary (excluding the Operating Partnership) of any provision of the Organizational Documents of the Company or any Subsidiaryits applicable organizational documents, or (ii) of any provision of any obligation, agreement, contract, franchise, license, indenture, mortgage, deed of trust, loan or credit agreement agreement, lease or other agreement or instrument to which the Company or any Subsidiary is a party or by which any of them or their respective properties may be bound or affected, or (iii) under any Law federal, state, local or foreign law, regulation or rule or any decree, judgment or order applicable to the Company or any Subsidiary, except in the case of this clause (ii) for such breaches or defaults which would not, individually or in the aggregate, have a Material Adverse Effect; or (B) result in the creation or imposition of any lien, charge, claim or encumbrance upon any property or asset of the Company or any Subsidiary;.
g. (j) the Company has the full legal right, trust power and authority to enter into this Agreement and to consummate the Management transactions contemplated herein; the Company has the trust power to issue, sell and deliver the Shares as provided herein; this Agreement have has been duly authorized, executed and delivered by the Company and the Operating Partnership and each is a legal, valid and binding agreement of the Company and enforceable against the Operating Partnership enforceable Company in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ ' rights generally, and by general equitable principles, and except to the extent that the indemnification and contribution provisions of Section 12 9 hereof may be limited by federal or state securities laws and public policy considerations in respect thereof;.
h. (k) the Operating Partnership has the full legal right, power and authority to enter into this Agreement and to consummate the transactions contemplated herein; this Agreement has been duly authorized, executed and delivered by the Operating Partnership and constitutes the valid and binding agreement of the Operating Partnership enforceable against the Operating Partnership in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally, and by general equitable principles, and except to the extent that the indemnification and contribution provisions of Section 9 hereof may be limited by federal or state securities laws and public policy considerations in respect thereof.
(l) no approval, authorization, consent or order of of, or registration or filing with any federal, state, state or local or foreign governmental or regulatory commission, board, body, authority or agency is required in connection with for the Company's or Operating Partnership's execution, delivery and performance of this Agreement by and the Company Prospectus or the Operating Partnership, their consummation of the transactions contemplated herein, and including the Company’s sale and delivery of the Placement Shares, other than (A) such as have been obtained, or will have been obtained at before the relevant Settlement First Closing Date or the applicable Option Closing Date, as the case may be, under the Securities Act and the Securities Exchange Act of 1934, as amended (the "Exchange Act, (B) such approvals as have been obtained in connection with the approval of the listing of the Placement Shares on the Exchange, (C) such as have been obtained or made under the rules and regulations of the Financial Industry Regulatory Authority (“FINRA”") and (DB) any necessary qualification under the securities or blue sky laws of the various jurisdictions in which the Placement Shares are being offered by the Agent;Underwriters.
i. (m) each of the Company and the Subsidiaries has all necessary licenses, permits, authorizations, consents and approvals approvals, possess valid and current certificates, has made all necessary filings required under any Lawfederal, state or local law, regulation or rule, and has obtained all necessary authorizations, consents and approvals from other persons, required in order to conduct their respective businesses as described in the Registration Statement and the Prospectus, except to the extent that any failure to have any such licenses, permits, authorizations, consents or approvals, to make any such filings or to obtain any such authorizations, consents or approvals would could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; neither the Company nor any of the Subsidiaries is required by any applicable law to obtain accreditation or certification from any governmental agency or authority in order to provide the products and services which it currently provides or which it proposes to provide as set forth in the Registration Statement and the Prospectus; neither the Company, nor any of the Subsidiaries is in violation of, in default under, or has received any notice regarding a possible violation, default or revocation of any such certificate, license, permit, authorization, consent or approval or any federal, state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Company or any of the Subsidiaries the effect of which which, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Change; and no such license, permit, authorization, consent or approval contains a materially burdensome restriction that is not adequately disclosed in each of the Registration Statement and the Prospectus;.
j. the Company meets the requirements for use of Form S-3 under the Securities Act; (n) the Registration Statement has become been declared effective under the Securities Act by the Commission and no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the CompanyCompany and the Operating Partnership, are contemplated or threatened by the Commission; , and the Company has complied has, to the Commission’s satisfaction knowledge of the Company and the Operating Partnership, complied with any request on the part of the Commission for additional or supplemental information;.
k. (o) the Registration Statement as of each effective date (including each deemed effective date with respect to the Agent pursuant to Rule 430B or otherwise under the Securities Act) and as of the date hereof, complied or will comply, and the Prospectus and any further amendments or supplements to the Registration Statement or the Prospectus at the time they were filed with the Commission, were, or thereto will, when they have become effective or are filed with the Commission, as the case may be, comply, in all material respects with the requirements of the Securities Act, including Rule 415Act and the Securities Act Regulations; the documents incorporated by reference in the Registration Statement and the Prospectus, when they became effective or at the time they were or hereafter are filed with the Commission, complied and will comply in all material respects with the requirements of the Exchange Act;
l. the Registration Statement, as of each effective date (including each deemed effective date with respect to the Agent pursuant to Rule 430B or otherwise under the Securities Act), and as of the date hereof, and at each Settlement Date, did not, and does not or any amendment thereto will not not, in each case as of the applicable effective date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and the Prospectus or any amendment or supplement thereto will not, as of its issue date, as of the applicable filing date, as of date and on the date hereof First Closing Date and at on each Settlement DateOption Closing Date (if any), contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no warranty or representation with respect to any statement contained in or omitted from the Registration Statement or the Prospectus in reliance upon and in conformity with the information concerning the Agent and furnished in writing by or on behalf of the Agent to the Company expressly for use therein; the documents incorporated by reference in the Registration Statement and the Prospectus, at the time the Registration Statement became effective or when such documents incorporated by reference were filed with the Commission, as the case may be, when read together with the other information in the Registration Statement or the Prospectus, as the case may be, did not and will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
m. as of the issue date or date of first use and at all subsequent times through each Settlement Date, each Issuer Free Writing Prospectus did not, and at the time of each sale of Placement Shares and at the Settlement date, each such Issuer Free Writing Prospectus will not, contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
n. each Issuer Free Writing Prospectus, if any, as of its issue date and at all subsequent times through the completion of the public offer and sale of the Placement Shares did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein, and any other prospectus deemed to be a part thereof that has not been superseded or modified;
o. the Company is eligible to use Free Writing Prospectuses in connection with this offering pursuant to Rules 164 and 433 under the Securities Act; any Free Writing Prospectus that the Company is required to file pursuant to Rule 433(d) has been, or will be, filed with the Commission in accordance with the requirements of the Securities Act; and each Free Writing Prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d) or that was prepared by or on behalf of or used by the Company complies or will comply in all material respects with the requirements of the Securities Act;
p. except for any Issuer Free Writing Prospectuses, the Company has not prepared, used or referred to, and will not, without the prior consent of the Agent, prepare, use or refer to, any Free Writing Prospectus;
q. the Prospectus and any Issuer Free Writing Prospectuses (to the extent any such Issuer Free Writing Prospectus was required to be filed with the Commission) delivered to the Agent for use in connection with the public offering of the Placement Shares contemplated herein have been and will be identical to the versions of such documents transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T under the Securities Act;
r. the Company filed the Registration Statement with the Commission before using any Issuer Free Writing Prospectus;
s. there are no actions, suits, proceedings, inquiries or investigations pending or, to the knowledge of the Company or the Operating Partnership, threatened against the Company or any Subsidiary or any of their respective officers and directors or to which the properties, assets or rights of any such entity are subject, at law or in equity, before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority, arbitral panel or agency which could result in a judgment, decree, award or order having a Material Adverse Effect;
t. the consolidated financial statements, including the notes thereto, included in each of the Registration Statement and the Prospectus present fairly the consolidated financial position of the Company and its subsidiaries as of the dates indicated and their consolidated results of operations and changes in financial position anRegistr
Appears in 1 contract
Sources: Underwriting Agreement (American Financial Realty Trust)
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, represent and warrant toto the Underwriters, and agree with the Agent as of the date of this Agreement, as of each Representation Date (as defined below)hereof, as of the time of each sale of Placement Shares pursuant to this Agreement Closing Time and as of each Settlement Dateany Date of Delivery, unless such representation, warranty or agreement specifies a different date or timethat:
a. (i) the Company has the an authorized and outstanding capitalization as set forth in both the Registration Statement Prospectus and the ProspectusDisclosure Package; the outstanding shares of capital stock of the Company and NRFC Sub-REIT Corp., a Maryland corporation and a subsidiary of the Operating Partnership (the “Private REIT”), have been duly and validly authorized and issued and are fully paid and non-assessable. All nonassessable;
(ii) the outstanding partnership interests of the outstanding shares of capital stock, partnership interests and membership interests, as the case may be, of the subsidiaries of the Company identified on Schedule 4 hereto (each, a “Subsidiary”) Operating Partnership have been duly and validly authorized and are validly issued, fully paid and non-assessable securities thereof and, except as disclosed in the Prospectus, ; all of the outstanding shares of capital stock, partnership interest or membership interests, as the case may be, common stock of the Subsidiaries Private REIT are directly or and indirectly owned of record and beneficially by the Operating Partnership and the Company; , respectively;
(iii) except as disclosed in both the ProspectusProspectus and the Disclosure Package, there are no outstanding (iA) securities or obligations of the Company or any the subsidiaries of the Subsidiaries Company required to be set forth in Exhibit 21.1 to the Company’s Annual Report on Form 10-K for the year ended December 31, 2013 (the “Subsidiaries”), convertible into or exchangeable for any capital stock of or partnership interests, membership interests or other equity interests, as the case may be, in the Company or any such Subsidiary, (iiB) warrants, rights or options to subscribe for or purchase from the Company or any such Subsidiary any such capital stock or any such convertible or exchangeable securities or obligations, or (iiiC) obligations of the Company or any such Subsidiary to issue any shares of capital stocksecurities or obligations, any such convertible or exchangeable securities or obligationobligations, or any such warrants, rights or options; all issued options the existence of which, in each case of (A), (B) and outstanding units of partnership interest (C), is required to be disclosed in the Operating Partnership (“Units”) owned by Prospectus and the Company Disclosure Package and are owned free and clear of any perfected security interest or any other security interests, claims, liens or encumbrancesnot so disclosed;
b. (iv) each of the Company and each of the Subsidiaries has been duly incorporated, formed incorporated or organized and is validly existing as a corporation, general or limited partnership or limited liability company company, as the case may be, except to the extent, in the case of the Subsidiaries, that the failure to be so organized would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect and is in good standing under the laws of its respective jurisdiction of incorporation, formation incorporation or organization with full power except to the extent that the failure to be in good standing would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
(v) each of the Company and the Subsidiaries has the corporate, partnership or limited liability company power, as the case may be, and authority to own its their respective properties and to conduct its their respective businesses businesses, each as described in each of the Registration Statement Statement, the Prospectus and the ProspectusDisclosure Package except to the extent that the failure to have such power or authority would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, and, in the case of the Company and the Operating Partnership, to execute and deliver this Agreement and to consummate the transactions contemplated herein and to perform its obligations under the Amended and Restated Management described in this Agreement, dated October 27, 2015, by and among the Company, the Operating Partnership and the Manager (the “Management Agreement”);
c. (vi) the Company and each of the Subsidiaries is are duly qualified or licensed and in good standing in each jurisdiction in which it conducts its businesses where such qualification or in which it owns or leases real property or otherwise maintains an office and in which license is required except where the failure, individually or in the aggregate, to be so qualified or licensed would not reasonably be expected to have a material adverse effect on the assets, business, operations, earnings, prospects, properties or condition (financial or otherwise) of the Company and the Subsidiaries taken as a whole, (any such effect or change, where the context so requires, is hereinafter called a “Material Adverse Effect” or “Material Adverse Change”); ;
(vii) except as disclosed in both the ProspectusProspectus and the Disclosure Package, no Subsidiary the Operating Partnership is neither contractually prohibited or nor contractually restricted, directly or indirectly, from paying dividends to the Company, or from making any other distribution with respect to such Subsidiarythe Operating Partnership’s partnership interests or from repaying to the Company or another subsidiary of the Company any amounts which may from time to time become due under any loans or advances to the Operating Partnership from the Company or another subsidiary of the Company, or from transferring the Operating Partnership’s property or assets to the Company or another subsidiary of the Company;
(viii) except as disclosed in both the Prospectus and the Disclosure Package, the Private REIT is neither contractually prohibited nor contractually restricted, directly or indirectly, from paying dividends to the Operating Partnership, or from making any other distribution with respect to the Private REIT’s shares of capital stock or from repaying to the Company, the Operating Partnership or another subsidiary of the Company any amounts which may from time to time become due under any loans or advances to the Private REIT from the Company, the Operating Partnership or another subsidiary of the Company, or from transferring the Private REIT’s property or assets to the Company, the Operating Partnership or another subsidiary of the Company;
(ix) except as disclosed in both the Prospectus and the Disclosure Package, no Subsidiary (other than the Operating Partnership and the Private REIT, which are covered above) is contractually prohibited or restricted, directly or indirectly, from paying dividends to the Operating Partnership or the Private REIT, to the extent such Subsidiary is a direct subsidiary of the Operating Partnership or the Private REIT, or from making any other distribution with respect to the outstanding membership interests of such Subsidiary or from repaying to the Company, the Operating Partnership or another subsidiary of the Company any amounts which may from time to time become due under any loans or advances to such Subsidiary from the Company Company, the Operating Partnership or such other Subsidiaryanother subsidiary of the Company, or from transferring any such Subsidiary’s property or assets to the Company, the Operating Partnership or another subsidiary of the Company except for any such prohibitions and restrictions that would not, individually or in the aggregate, reasonably be expected to any other Subsidiary; other than have a Material Adverse Effect;
(x) the Agreement of Limited Partnership of the Operating Partnership, dated as of October 19, 2004, as amended (the “Partnership Agreement”), has been duly and validly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally or by general principles of equity, and except to the extent that the indemnification and contribution provisions thereof may be limited by federal or state securities laws and public policy considerations in respect thereof;
(xi) the Company is the sole general partner of the Operating Partnership and owns units of partnership interest in the Operating Partnership (“OP Units”) representing an ownership interest in the Operating Partnership in the percentage set forth in both the Prospectus and the Disclosure Package, and, except as disclosed in the Prospectus, the Company Prospectus and the Operating Partnership do not ownDisclosure Package, directly or indirectlysuch ownership interest is free and clear of any pledge, any capital stock lien, encumbrance, security interest or other equity securities of claim except for any other corporation or any ownership pledge, lien, encumbrance, security interest in any partnership, joint venture or other associationclaim that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
d. the Company and the Subsidiaries are in compliance in all material respects with all applicable laws, rules, regulations, orders, decrees and judgments, including those relating to transactions with affiliates;
e. (xii) neither the Company nor any Subsidiary is in breach of or in default under (nor has any event occurred which with notice, lapse of time, or both would constitute a breach of, or default under), (i) its respective charterorganizational documents, bylaws, agreement of limited partnership, operating agreement or other similar organizational documents (the “Organizational Documents”), (ii) in the performance or observance of any obligation, agreement, covenant or condition contained in any license, indenture, mortgage, deed of trust, loan or credit agreement or other agreement or instrument to which the Company or any Subsidiary is a party or by which any of them or their respective properties or assets is bound, or (iii) any federal, state, local or foreign law, regulation or rule or any decree, judgment, permit or order (each, a “Law”) applicable to the Company or any Subsidiary, except, in the case of clauses (ii) and (iii) above, except for such breaches or defaults which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
f. (xiii) the execution, delivery and performance of this Agreement, Agreement and consummation of the transactions contemplated herein will not (A) conflict with, or result in any breach of, or constitute a default under (nor constitute any event which with notice, lapse of time, or both would constitute a breach of, or default under), ): (i1) any provision of the Organizational Documents organizational documents of the Company or any Subsidiary, or (ii2) any provision of any license, indenture, mortgage, deed of trust, loan or credit agreement or other agreement or instrument to which the Company or any Subsidiary is a party or by which any of them or their respective assets or properties may be bound or affected, or under any Law federal, state, local or foreign law, regulation or rule or any decree, judgment or order applicable to the Company or any Subsidiary, except in the case of this clause (ii2) for such breaches or defaults which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse EffectEffect and which would not reasonably be expected to have a material adverse effect on the Company and the Operating Partnership’s ability to perform their agreed upon obligations under the Agreement; or (B) result in the creation or imposition of any lien, charge, claim or encumbrance upon any property or asset of the Company or any Subsidiary, except for such liens, charges, claims or encumbrances which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
g. (xiv) this Agreement and the Management Agreement have has been duly authorized, executed and delivered by each of the Company and the Operating Partnership and each is a legal, valid and binding agreement of each of the Company and the Operating Partnership enforceable against the Company and the Operating Partnership in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, and generally or by general equitable principlesprinciples of equity, and except to the extent that the indemnification and contribution provisions of Section 12 9 hereof may be limited by federal or state securities laws and public policy considerations in respect thereof;
h. (xv) no approval, authorization, consent or order of or filing with any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency is required in connection with the Company’s or the Operating Partnership’s execution, delivery and performance of this Agreement Agreement, the consummation of the transactions contemplated herein by the Company or the Operating Partnership, their consummation of the transactions contemplated herein, and including the Company’s issuance, sale and delivery of the Placement Shares, other than (A) such as have been obtained, or will have been obtained at the Closing Time or the relevant Settlement DateDate of Delivery, as the case may be, under the Securities Act and the Exchange Act, (B) such approvals as have been obtained in connection with the approval of the listing of the Placement Shares on the Exchange, (C) such as have been obtained or made under the rules and regulations of the Financial Industry Regulatory Authority (“FINRA”) and (D) any necessary qualification under the securities or “blue sky sky” laws of the various jurisdictions in which the Placement Shares are being offered by the AgentUnderwriters, or (C) any such approvals, authorizations, consents, orders, or filings that if not obtained or made, would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect and which would not reasonably be expected to have a material adverse effect on the Company and the Operating Partnership’s ability to perform their agreed upon obligations under this Agreement;
i. (xvi) each of the Company and the Subsidiaries has all necessary licenses, authorizations, consents and approvals and has made all necessary filings required under any Lawfederal, state, local or foreign law, regulation or rule, and has obtained all necessary authorizations, consents and approvals from other persons, required in order to conduct their respective businesses as described in both the Registration Statement Prospectus and the ProspectusDisclosure Package, except to the extent that any failure to have any such licenses, authorizations, consents or approvals, to make any such filings or to obtain any such authorizations, consents or approvals would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; neither the Company nor any of the Subsidiaries is required by any applicable law to obtain accreditation or certification from any governmental agency or authority in order to provide the products and services which it currently provides or which it proposes to provide as set forth in the Registration Statement and the Prospectus; neither the Company, nor any of the Subsidiaries is in violation of, in default under, or has received any notice regarding a possible violation, default or revocation of any such license, authorization, consent or approval or any federal, state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Company or any of the Subsidiaries the effect of which could would reasonably be expected to result in a Material Adverse Change; and no such license;
(A) at the time of filing the Original Registration Statement, authorization, consent or approval contains a materially burdensome restriction that is not adequately disclosed in each (B) at the time of the most recent amendment to the Registration Statement for the purposes of complying with Section 10(a)(3) of the Securities 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) and the Prospectus;
j. (C) at any time the Company meets or any person acting on its behalf (within the requirements meaning, for use this clause only, of Form S-3 under Rule 163(c) of the Securities ActAct Regulations) made any offer relating to the Shares in reliance on the exemption of Rule 163 of the Securities Act Regulations (“Rule 163”), the Company was and is a “well-known seasoned issuer” as defined in Rule 405, including not having been and not being an “ineligible issuer” as defined in Rule 405; the Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 and the Shares, since their registration on the Registration Statement, have been and remain eligible for registration by the Company on a Rule 405 “automatic shelf registration statement”; and the Company has become effective under not received from the Commission any notice pursuant to Rule 401(g)(2) of the Securities Act Regulations objecting to the use of the automatic shelf registration statement form;
(xviii) the Original Registration Statement became effective upon filing under Rule 462(e) on February 19, 2013, and any post-effective amendment thereto also became effective upon filing under Rule 462(e); no stop order suspending the effectiveness or the use of the Registration Statement has been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Company, are contemplated or threatened by the Commission; , and the Company has complied to the Commission’s satisfaction with any request on the part of the Commission for additional informationinformation have been complied with;
k. (xix) any offer that is a written communication relating to the Shares made by the Company or any person acting on its behalf (within the meaning, for this sentence only, of Rule 163(c)) prior to the filing of the Original Registration Statement as has been filed with the Commission in accordance with Rule 163 and otherwise complied with the requirements of Rule 163, including without limitation the legending requirement, to qualify such offer for the exemption from Section 5(c) of the Securities Act provided by Rule 163;
(xx) at the respective times the Original Registration Statement became effective and each effective date (including amendment thereto became effective, at each deemed effective date with respect to the Agent Underwriters pursuant to Rule 430B or otherwise under 430B(f)(2) of the Securities Act) Act Regulations and as of the date hereof, complied or will comply, and the Prospectus and any further amendments or supplements to the Registration Statement or the Prospectus at the time they were filed with the Commission, were, or will, when they become effective or are filed with the Commission, as the case may be, comply, in all material respects with the requirements of the Securities Act, including Rule 415; the documents incorporated by reference in the Registration Statement and the Prospectus, when they became effective or at the time they were or hereafter are filed with the Commission, any amendments thereto complied and will comply in all material respects with the requirements of the Exchange Act;
l. the Registration Statement, as of each effective date (including each deemed effective date with respect to the Agent pursuant to Rule 430B or otherwise under Securities Act and the Securities Act)Act Regulations, and as of the date hereof, and at each Settlement Date, did not, and does not or will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and the Prospectus or any amendment or supplement thereto will not, as of its issue date, as of the applicable filing date, as of the date hereof and at each Settlement Date, contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no warranty or representation with respect to any statement contained in or omitted from the Registration Statement or the Prospectus any amendment thereto in reliance upon and in conformity with the information concerning the Agent Underwriters and furnished in writing by or on behalf of the Agent Underwriters through the Representatives to the Company expressly for use therein; the documents incorporated by reference therein (that information being limited to that described in the Registration Statement and the Prospectus, at the time the Registration Statement became effective or when such documents incorporated by reference were filed with the Commission, as the case may be, when read together with the other information in the Registration Statement or the Prospectus, as the case may be, did not and will not include an untrue statement penultimate sentence of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleadingSection 9(b) hereof);
m. as of (xxi) the issue date or date of first use and at all subsequent times through each Settlement Date, each Issuer Free Writing Prospectus did not, and at the time of each sale of Placement Shares and at the Settlement date, each such Issuer Free Writing Prospectus will not, contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
n. each Issuer Free Writing Preliminary Prospectus, if any, as of its issue date and at all subsequent times through the completion of the public offer and sale of the Placement Shares did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein, and any other prospectus deemed to be a part thereof that has not been superseded or modified;
o. the Company is eligible to use Free Writing Prospectuses in connection with this offering pursuant to Rules 164 and 433 under the Securities Act; any Free Writing Prospectus that the Company is required to file pursuant to Rule 433(d) has been, or will be, filed with the Commission in accordance with the requirements of the Securities Act; and each Free Writing Prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d) or that was prepared by or on behalf of or used by the Company complies or will comply in all material respects with the requirements of the Securities Act;
p. except for any Issuer Free Writing Prospectuses, the Company has not prepared, used or referred to, and will not, without the prior consent of the Agent, prepare, use or refer to, any Free Writing Prospectus;
q. the Prospectus and any Issuer Free Writing Prospectuses (to the extent any such Issuer Free Writing Prospectus was required to be filed with the Commission) delivered to the Agent for use in connection with the public offering of the Placement Shares contemplated herein have been and will be identical to the versions of such documents transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T under the Securities Act;
r. the Company filed the Registration Statement with the Commission before using any Issuer Free Writing Prospectus;
s. there are no actions, suits, proceedings, inquiries or investigations pending or, to the knowledge of the Company or the Operating Partnership, threatened against the Company or any Subsidiary or any of their respective officers and directors or to which the properties, assets or rights of any such entity are subject, at law or in equity, before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority, arbitral panel or agency which could result in a judgment, decree, award or order having a Material Adverse Effect;
t. the consolidated financial statements, including the notes thereto, included in each of the Registration Statement and the Prospectus present fairly the consolidated financial position of the Company and its subsidiaries as of the dates indicated and their consolidated results of operations and changes in financial position an
Appears in 1 contract
Sources: Underwriting Agreement (Northstar Realty Finance Corp.)
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, represent and warrant toto the Underwriters, and agree with the Agent as of the date of this Agreement, as of each Representation Date (as defined below)hereof, as of the time of each sale of Placement Shares pursuant to this Agreement Closing Time and as of each Settlement Dateany Date of Delivery, unless such representation, warranty or agreement specifies a different date or timethat:
a. (i) the Company has the an authorized and outstanding capitalization as set forth in both the Registration Statement Prospectus and the ProspectusDisclosure Package; the outstanding shares of capital stock of the Company and NRFC Sub-REIT Corp., a Maryland corporation and a subsidiary of the Operating Partnership (the “Private REIT”), have been duly and validly authorized and issued and are fully paid and non-assessable. All nonassessable;
(ii) the outstanding partnership interests of the outstanding shares of capital stock, partnership interests and membership interests, as the case may be, of the subsidiaries of the Company identified on Schedule 4 hereto (each, a “Subsidiary”) Operating Partnership have been duly and validly authorized and are validly issued, fully paid and non-assessable securities thereof and, except as disclosed in the Prospectus, ; all of the outstanding shares of capital stock, partnership interest or membership interests, as the case may be, stock of the Subsidiaries Private REIT are directly or and indirectly owned of record and beneficially by the Operating Partnership and the Company; , respectively;
(iii) except as disclosed in both the ProspectusProspectus and the Disclosure Package, there are no outstanding (iA) securities or obligations of the Company or any the subsidiaries of the Subsidiaries Company required to be set forth in Exhibit 21.1 to the Company’s Form 10-K for the fiscal year ended December 31, 2005 (the “Subsidiaries”) convertible into or exchangeable for any capital stock of or partnership interests, membership interests or other equity interests, as the case may be, in the Company or any such Subsidiary, (iiB) warrants, rights or options to subscribe for or purchase from the Company or any such Subsidiary any such capital stock or any such convertible or exchangeable securities or obligations, or (iiiC) obligations of the Company or any such Subsidiary to issue any shares of capital stocksecurities or obligations, any such convertible or exchangeable securities or obligationobligations, or any such warrants, rights or options; all issued options the existence of which, in each case of (A), (B) and outstanding units of partnership interest (C), is required to be disclosed in the Operating Partnership (“Units”) owned by Prospectus and the Company Disclosure Package and are owned free and clear of any perfected security interest or any other security interests, claims, liens or encumbrancesnot so disclosed;
b. (iv) each of the Company and each of the Subsidiaries has been duly incorporated, formed incorporated or organized and is validly existing as a corporation, general or limited partnership or limited liability company company, as the case may be, except to the extent, in the case of the Subsidiaries, that the failure to be so organized would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect and is in good standing under the laws of its respective jurisdiction of incorporation, formation incorporation or organization with full power except to the extent, that the failure to be so qualified or in good standing would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
(v) each of the Company and the Subsidiaries have the corporate, partnership or limited liability company power, as the case may be, and authority to own its their respective properties and to conduct its their respective businesses businesses, each as described in each of the Registration Statement Statement, the Prospectus and the ProspectusDisclosure Package except to the extent that the failure to have such power or authority would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, and, in the case of the Company and the Operating Partnership, to execute and deliver this Agreement and to consummate the transactions contemplated herein and to perform its obligations under the Amended and Restated Management described in this Agreement, dated October 27, 2015, by and among the Company, the Operating Partnership and the Manager (the “Management Agreement”);
c. (vi) the Company and each of the Subsidiaries is are duly qualified or licensed and in good standing in each jurisdiction in which it conducts its businesses where such qualification or in which it owns or leases real property or otherwise maintains an office and in which license is required except where the failure, individually or in the aggregate, to be so qualified or licensed would not reasonably be expected to have a material adverse effect on the assets, business, operations, earnings, prospects, properties or condition (financial or otherwise) of the Company and the Subsidiaries taken as a whole, (any such effect or change, where the context so requires, is hereinafter called a “Material Adverse Effect” or “Material Adverse Change”); ;
(vii) except as disclosed in both the ProspectusProspectus and the Disclosure Package, no Subsidiary the Operating Partnership is neither contractually prohibited or nor contractually restricted, directly or indirectly, from paying dividends to the Company, or from making any other distribution with respect to such Subsidiarythe Operating Partnership’s partnership interests or from repaying to the Company or another subsidiary of the Company any amounts which may from time to time become due under any loans or advances to the Operating Partnership from the Company or another subsidiary of the Company, or from transferring the Operating Partnership’s property or assets to the Company or another subsidiary of the Company;
(viii) except as disclosed in both the Prospectus and the Disclosure Package, the Private REIT is neither contractually prohibited nor contractually restricted, directly or indirectly, from paying dividends to the Operating Partnership, or from making any other distribution with respect to the Private REIT’s shares of capital stock or from repaying to the Company, the Operating Partnership or another subsidiary of the Company any amounts which may from time to time become due under any loans or advances to the Private REIT from the Company, the Operating Partnership or another subsidiary of the Company, or from transferring the Private REIT’s property or assets to the Company, the Operating Partnership or another subsidiary of the Company;
(ix) except as disclosed in both the Prospectus and the Disclosure Package, no Subsidiary (other than the Operating Partnership and the Private REIT, which are covered above) is contractually prohibited or restricted, directly or indirectly, from paying dividends to the Operating Partnership or the Private REIT, to the extent such Subsidiary is a direct subsidiary of the Operating Partnership or the Private REIT, or from making any other distribution with respect to the outstanding membership interests of such Subsidiary or from repaying to the Company, the Operating Partnership or another subsidiary of the Company any amounts which may from time to time become due under any loans or advances to such Subsidiary from the Company Company, the Operating Partnership or such other Subsidiaryanother subsidiary of the Company, or from transferring any such Subsidiary’s property or assets to the Company, the Operating Partnership or another subsidiary of the Company except for any such prohibitions and restrictions that would not individually or in the aggregate reasonably be expected to have a Material Adverse Effect or to the extent that any other Subsidiary; other than such restriction would currently materially limit the Company’s ability to pay dividends or that would be reasonably likely to materially limit the future payment of dividends on Preferred Stock;
(x) the Agreement of Limited Partnership of the Operating Partnership, dated as of October 19, 2004 (the “Partnership Agreement”), has been duly and validly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally or by general principles of equity, and except to the extent that the indemnification and contribution provisions of Section 9 hereof may be limited by federal or state securities laws and public policy considerations in respect thereof;
(xi) the Company is the sole general partner of the Operating Partnership and the holder of units of partnership interest in the Operating Partnership (“OP Units”) representing an ownership interest in the Operating Partnership in the percentage set forth in both the Prospectus and the Disclosure Package, and, except as disclosed in the Prospectus, the Company Prospectus and the Operating Partnership do not ownDisclosure Package, directly or indirectlyfree and clear of any pledge, any capital stock lien, encumbrance, security interest or other equity securities of claim except for any other corporation or any ownership pledge, lien, encumbrance, security interest in any partnership, joint venture or other associationclaim that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
d. the Company and the Subsidiaries are in compliance in all material respects with all applicable laws, rules, regulations, orders, decrees and judgments, including those relating to transactions with affiliates;
e. (xii) neither the Company nor any Subsidiary is in breach of or in default under (nor has any event occurred which with notice, lapse of time, or both would constitute a breach of, or default under), (i) its respective charterorganizational documents, bylaws, agreement of limited partnership, operating agreement or other similar organizational documents (the “Organizational Documents”), (ii) in the performance or observance of any obligation, agreement, covenant or condition contained in any license, indenture, mortgage, deed of trust, loan or credit agreement or other agreement or instrument to which the Company or any Subsidiary is a party or by which any of them or their respective properties or assets is bound, or (iii) any federal, state, local or foreign law, regulation or rule or any decree, judgment, permit or order (each, a “Law”) applicable to the Company or any Subsidiary, except, in the case of clauses (ii) and (iii) above, except for such breaches or defaults which would notwhich, individually or in the aggregate, aggregate could not reasonably be expected to have a Material Adverse Effect;
f. (xiii) the execution, delivery and performance of this Agreement, Agreement and consummation of the transactions contemplated herein will not (A) conflict with, or result in any breach of, or constitute a default under (nor constitute any event which with notice, lapse of time, or both would constitute a breach of, or default under), ): (i1) any provision of the Organizational Documents organizational documents of the Company or any Subsidiary, or (ii2) any provision of any license, indenture, mortgage, deed of trust, loan or credit agreement or other agreement or instrument to which the Company or any Subsidiary is a party or by which any of them or their respective assets or properties may be bound or affected, or under any Law federal, state, local or foreign law, regulation or rule or any decree, judgment or order applicable to the Company or any Subsidiary, except in the case of this clause (ii2) for such breaches or defaults which would not, individually or in the aggregate, aggregate not reasonably be expected to have a Material Adverse EffectEffect and which would not reasonably be expected to have a material adverse effect on the Company and the Operating Partnership’s ability to perform their agreed upon obligations under the Agreement; or (B) result in the creation or imposition of any lien, charge, claim or encumbrance upon any property or asset of the Company or any Subsidiary, except for such liens, charges, claims or encumbrances which would individually or in the aggregate not reasonably be expected to have a Material Adverse Effect;
g. (xiv) this Agreement and the Management Agreement have has been duly authorized, executed and delivered by each of the Company and the Operating Partnership and each is a legal, valid and binding agreement of each of the Company and the Operating Partnership enforceable against the Company and the Operating Partnership in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, and by general equitable principles, and except to the extent that the indemnification and contribution provisions of Section 12 9 hereof may be limited by federal or state securities laws and public policy considerations in respect thereof;
h. (xv) no approval, authorization, consent or order of or filing with any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency is required in connection with the Company’s or the Operating Partnership’s execution, delivery and performance of this Agreement Agreement, the consummation of the transactions contemplated herein by the Company or the Operating Partnership, their consummation of the transactions contemplated herein, and including the Company’s issuance, sale and delivery of the Placement Shares, other than (A) such as have been obtained, or will have been obtained at the Closing Time or the relevant Settlement DateDate of Delivery, as the case may be, under the Securities Act and the Exchange Act, or (B) such approvals as have been obtained in connection with the approval of the listing of the Placement Shares on the Exchange, (C) such as have been obtained or made under the rules and regulations of the Financial Industry Regulatory Authority (“FINRA”) and (D) any necessary qualification under the securities or “blue sky sky” laws of the various jurisdictions in which the Placement Shares are being offered by the AgentUnderwriters, or (C) any such approvals, authorizations, consents, orders, or filings that if not obtained or made, would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect and which would not reasonably be expected to have a material adverse effect on the Company and the Operating Partnership’s ability to perform their agreed upon obligations under the Agreement;
i. (xvi) each of the Company and the Subsidiaries has all necessary licenses, authorizations, consents and approvals and has made all necessary filings required under any Lawfederal, state, local or foreign law, regulation or rule, and has obtained all necessary authorizations, consents and approvals from other persons, required in order to conduct their respective businesses as described in both the Registration Statement Prospectus and the ProspectusDisclosure Package, except to the extent that any failure to have any such licenses, authorizations, consents or approvals, to make any such filings or to obtain any such authorizations, consents or approvals would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; neither the Company nor any of the Subsidiaries is required by any applicable law to obtain accreditation or certification from any governmental agency or authority in order to provide the products and services which it currently provides or which it proposes to provide as set forth in the Registration Statement and the Prospectus; neither the Company, nor any of the Subsidiaries is in violation of, in default under, or has received any notice regarding a possible violation, default or revocation of any such license, authorization, consent or approval or any federal, state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Company or any of the Subsidiaries the effect of which could would reasonably be expected to result in a Material Adverse Change; and no such license, authorization, consent or approval contains a materially burdensome restriction that is not adequately disclosed in each of the Registration Statement and the Prospectus;
j. the Company meets the requirements for use of Form S-3 under the Securities Act; (xvii) the Registration Statement has become been declared effective under the Securities Act and by the Commission; the Rule 462(b) Registration Statement, if any, is effective; no stop order suspending the effectiveness or the use of the Registration Statement Statement, including any Rule 462(b) Registration Statement, has been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Company, are contemplated or threatened by the Commission; and the Company has complied to the Commission’s satisfaction with any request on the part of the Commission for additional information;
k. (xviii) the Registration Statement Preliminary Prospectus, as of each effective its date (including each deemed effective date with respect to the Agent pursuant to Rule 430B or otherwise under the Securities Act) and as of the date hereof, complied or complies, the Registration Statement, as of each effective date and as of the date hereof, complied, complies or will complycomply in all material respects, and the Prospectus as of its date and any further amendments or supplements to the Registration Statement Statement, the Preliminary Prospectus or the Prospectus at the time they were filed with the Commission, were, or willwill comply in all material respects, when they become effective or are filed with the Commission, as the case may be, comply, in all material respects with the requirements of the Securities Act, including Rule 415; the documents incorporated by reference in the Registration Statement Act and the Prospectus, when they became effective or at the time they were or hereafter are filed with the Commission, complied and will comply in all material respects with the requirements of the Exchange Act;
l. Securities Act Regulations; the Registration Statement, as of each effective date (including each deemed effective date with respect to the Agent pursuant to Rule 430B or otherwise under the Securities Act), and as of the date hereof, and at each Settlement Datedate, did not, and does not or will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; the Preliminary Prospectus, as of its date, did not contain and the Prospectus or any amendment or supplement thereto will notthereto, as of its issue datetheir respective dates, as of the applicable filing date, as of the date hereof hereof, the Closing Time and at on each Settlement DateDate of Delivery (if any), will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no warranty or representation with respect to any statement contained in or omitted from the Registration Statement Statement, the Preliminary Prospectus or the Prospectus or any amendment or supplement to any of the foregoing in reliance upon and in conformity with the information concerning the Agent Underwriters and furnished in writing by or on behalf of the Agent Underwriters through the Representatives to the Company expressly for use thereintherein (that information being limited to that described in the penultimate sentence of the first paragraph of Section 9(b) hereof);
(xix) for the purposes of this Agreement, the “Applicable Time” is 10:00 A.M. (Eastern Standard Time) on the date of this Agreement; the documents incorporated by reference in Disclosure Package as of the Registration Statement and the Prospectus, at the time the Registration Statement became effective or when such documents incorporated by reference were filed with the Commission, as the case may be, when read together with the other information in the Registration Statement or the Prospectus, as the case may beApplicable Time, did not and will not include an any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
m. as of the issue date or date of first use and at all subsequent times through each Settlement Date, each Issuer Free Writing Prospectus did not, and at the time of each sale of Placement Shares and at the Settlement date, each such Issuer Free Writing Prospectus will not, contain an untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
n. ; and each Issuer Free Writing Prospectus, if any, as of its issue date and at all subsequent times through Prospectus included in the completion of the public offer and sale of the Placement Shares did not, Disclosure Package does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein, and any other prospectus deemed to be a part thereof that has not been superseded or modified;
o. the Company is eligible to use Free Writing Prospectuses in connection with this offering pursuant to Rules 164 and 433 under the Securities Act; any Free Writing Prospectus that the Company is required to file pursuant to Rule 433(d) has been, or will be, filed with the Commission in accordance with the requirements of the Securities Act; and each Free Writing Prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d) or that was prepared by or on behalf of or used by the Company complies or will comply in all material respects with the requirements of the Securities Act;
p. except for any Issuer Free Writing ProspectusesStatement, the Company has not prepared, used Preliminary Prospectus or referred to, and will not, without the prior consent of the Agent, prepare, use or refer to, any Free Writing Prospectus;
q. the Prospectus and any Issuer Free Writing Prospectuses (to the extent any each such Issuer Free Writing Prospectus was required to be filed Prospectus, as supplemented by and taken together with the Commission) delivered to other information comprising the Agent for use in connection with the public offering of the Placement Shares contemplated herein have been and will be identical to the versions of such documents transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T under the Securities Act;
r. the Company filed the Registration Statement with the Commission before using any Issuer Free Writing Prospectus;
s. there are no actions, suits, proceedings, inquiries or investigations pending or, to the knowledge of the Company or the Operating Partnership, threatened against the Company or any Subsidiary or any of their respective officers and directors or to which the properties, assets or rights of any such entity are subject, at law or in equity, before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority, arbitral panel or agency which could result in a judgment, decree, award or order having a Material Adverse Effect;
t. the consolidated financial statements, including the notes thereto, included in each of the Registration Statement and the Prospectus present fairly the consolidated financial position of the Company and its subsidiaries Disclosure Package as of the dates indicated and their consolidated results Applicable Time, did not include any untrue statement of operations and changes a material fact or omit to state any material fact necessary in financial position anorder to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company
Appears in 1 contract
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, represent and warrant toto the Underwriters, and agree with the Agent as of the date of this Agreement, as of each Representation Date (as defined below)hereof, as of the time of each sale of Placement Shares pursuant to this Agreement Closing Time and as of each Settlement Dateany Date of Delivery, unless such representation, warranty or agreement specifies a different date or timethat:
a. (i) the Company has the an authorized and outstanding capitalization as set forth in both the Registration Statement Prospectus and the ProspectusDisclosure Package; the outstanding shares of capital stock of the Company and NRFC Sub-REIT Corp., a Maryland corporation and a subsidiary of the Operating Partnership (the “Private REIT”), have been duly and validly authorized and issued and are fully paid and non-assessable. All nonassessable;
(ii) the outstanding partnership interests of the outstanding shares of capital stock, partnership interests and membership interests, as the case may be, of the subsidiaries of the Company identified on Schedule 4 hereto (each, a “Subsidiary”) Operating Partnership have been duly and validly authorized and are validly issued, fully paid and non-assessable securities thereof and, except as disclosed in the Prospectus, ; all of the outstanding shares of capital stock, partnership interest or membership interests, as the case may be, stock of the Subsidiaries Private REIT are directly or and indirectly owned of record and beneficially by the Operating Partnership and the Company; , respectively;
(iii) except as disclosed in both the ProspectusProspectus and the Disclosure Package, there are no outstanding (iA) securities or obligations of the Company or any the subsidiaries of the Subsidiaries Company required to be set forth in Exhibit 21.1 to the Company’s Form 10-K for the fiscal year ended December 31, 2012 (the “Subsidiaries”), convertible into or exchangeable for any capital stock of or partnership interests, membership interests or other equity interests, as the case may be, in the Company or any such Subsidiary, (iiB) warrants, rights or options to subscribe for or purchase from the Company or any such Subsidiary any such capital stock or any such convertible or exchangeable securities or obligations, or (iiiC) obligations of the Company or any such Subsidiary to issue any shares of capital stocksecurities or obligations, any such convertible or exchangeable securities or obligationobligations, or any such warrants, rights or options; all issued options the existence of which, in each case of (A), (B) and outstanding units of partnership interest (C), is required to be disclosed in the Operating Partnership (“Units”) owned by Prospectus and the Company Disclosure Package and are owned free and clear of any perfected security interest or any other security interests, claims, liens or encumbrancesnot so disclosed;
b. (iv) each of the Company and each of the Subsidiaries has been duly incorporated, formed incorporated or organized and is validly existing as a corporation, general or limited partnership or limited liability company company, as the case may be, except to the extent, in the case of the Subsidiaries, that the failure to be so organized would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect and is in good standing under the laws of its respective jurisdiction of incorporation, formation incorporation or organization with full power except to the extent that the failure to be so qualified or in good standing would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
(v) each of the Company and the Subsidiaries has the corporate, partnership or limited liability company power, as the case may be, and authority to own its their respective properties and to conduct its their respective businesses businesses, each as described in each of the Registration Statement Statement, the Prospectus and the ProspectusDisclosure Package except to the extent that the failure to have such power or authority would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, and, in the case of the Company and the Operating Partnership, to execute and deliver this Agreement and to consummate the transactions contemplated herein and to perform its obligations under the Amended and Restated Management described in this Agreement, dated October 27, 2015, by and among the Company, the Operating Partnership and the Manager (the “Management Agreement”);
c. (vi) the Company and each of the Subsidiaries is are duly qualified or licensed and in good standing in each jurisdiction in which it conducts its businesses where such qualification or in which it owns or leases real property or otherwise maintains an office and in which license is required except where the failure, individually or in the aggregate, to be so qualified or licensed would not reasonably be expected to have a material adverse effect on the assets, business, operations, earnings, prospects, properties or condition (financial or otherwise) of the Company and the Subsidiaries taken as a whole, (any such effect or change, where the context so requires, is hereinafter called a “Material Adverse Effect” or “Material Adverse Change”); ;
(vii) except as disclosed in both the ProspectusProspectus and the Disclosure Package, no Subsidiary the Operating Partnership is neither contractually prohibited or nor contractually restricted, directly or indirectly, from paying dividends to the Company, or from making any other distribution with respect to such Subsidiarythe Operating Partnership’s partnership interests or from repaying to the Company or another subsidiary of the Company any amounts which may from time to time become due under any loans or advances to the Operating Partnership from the Company or another subsidiary of the Company, or from transferring the Operating Partnership’s property or assets to the Company or another subsidiary of the Company;
(viii) except as disclosed in both the Prospectus and the Disclosure Package, the Private REIT is neither contractually prohibited nor contractually restricted, directly or indirectly, from paying dividends to the Operating Partnership, or from making any other distribution with respect to the Private REIT’s shares of capital stock or from repaying to the Company, the Operating Partnership or another subsidiary of the Company any amounts which may from time to time become due under any loans or advances to the Private REIT from the Company, the Operating Partnership or another subsidiary of the Company, or from transferring the Private REIT’s property or assets to the Company, the Operating Partnership or another subsidiary of the Company;
(ix) except as disclosed in both the Prospectus and the Disclosure Package, no Subsidiary (other than the Operating Partnership and the Private REIT, which are covered above) is contractually prohibited or restricted, directly or indirectly, from paying dividends to the Operating Partnership or the Private REIT, to the extent such Subsidiary is a direct subsidiary of the Operating Partnership or the Private REIT, or from making any other distribution with respect to the outstanding membership interests of such Subsidiary or from repaying to the Company, the Operating Partnership or another subsidiary of the Company any amounts which may from time to time become due under any loans or advances to such Subsidiary from the Company Company, the Operating Partnership or such other Subsidiaryanother subsidiary of the Company, or from transferring any such Subsidiary’s property or assets to the Company, the Operating Partnership or another subsidiary of the Company except for any such prohibitions and restrictions that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect or to the extent that any other Subsidiary; other than such restriction would currently materially limit the Company’s ability to pay dividends or that would be reasonably likely to materially limit the future payment of dividends on Preferred Stock;
(x) the Agreement of Limited Partnership of the Operating Partnership, dated as of October 19, 2004, as amended (the “Partnership Agreement”), has been duly and validly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally or by general principles of equity, and except to the extent that the indemnification and contribution provisions thereof may be limited by federal or state securities laws and public policy considerations in respect thereof;
(xi) the Company is the sole general partner of the Operating Partnership and owns units of partnership interest in the Operating Partnership (“OP Units”) representing an ownership interest in the Operating Partnership in the percentage set forth in both the Prospectus and the Disclosure Package, and, except as disclosed in the Prospectus, the Company Prospectus and the Operating Partnership do not ownDisclosure Package, directly or indirectlysuch ownership interest is free and clear of any pledge, any capital stock lien, encumbrance, security interest or other equity securities of claim except for any other corporation or any ownership pledge, lien, encumbrance, security interest in any partnership, joint venture or other associationclaim that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
d. the Company and the Subsidiaries are in compliance in all material respects with all applicable laws, rules, regulations, orders, decrees and judgments, including those relating to transactions with affiliates;
e. (xii) neither the Company nor any Subsidiary is in breach of or in default under (nor has any event occurred which with notice, lapse of time, or both would constitute a breach of, or default under), (i) its respective charterorganizational documents, bylaws, agreement of limited partnership, operating agreement or other similar organizational documents (the “Organizational Documents”), (ii) in the performance or observance of any obligation, agreement, covenant or condition contained in any license, indenture, mortgage, deed of trust, loan or credit agreement or other agreement or instrument to which the Company or any Subsidiary is a party or by which any of them or their respective properties or assets is bound, or (iii) any federal, state, local or foreign law, regulation or rule or any decree, judgment, permit or order (each, a “Law”) applicable to the Company or any Subsidiary, except, in the case of clauses (ii) and (iii) above, except for such breaches or defaults which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
f. (xiii) the execution, delivery and performance of this Agreement, the issuance of the shares of common stock, par value $0.01 per share (the “Common Stock”) of the Company, to be issued upon conversion of the Shares (the “Conversion Shares”) and consummation of the transactions contemplated herein do not and will not (A) conflict with, or result in any breach of, or constitute a default under (nor constitute any event which with notice, lapse of time, or both would constitute a breach of, or default under), ): (i1) any provision of the Organizational Documents organizational documents of the Company or any Subsidiary, or (ii2) any provision of any license, indenture, mortgage, deed of trust, loan or credit agreement or other agreement or instrument to which the Company or any Subsidiary is a party or by which any of them or their respective assets or properties may be bound or affected, or under any Law federal, state, local or foreign law, regulation or rule or any decree, judgment or order applicable to the Company or any Subsidiary, except in the case of this clause (ii2) for such breaches or defaults which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse EffectEffect and which would not reasonably be expected to have a material adverse effect on the Company and the Operating Partnership’s ability to perform their agreed upon obligations under the Agreement; or (B) result in the creation or imposition of any lien, charge, claim or encumbrance upon any property or asset of the Company or any Subsidiary, except for such liens, charges, claims or encumbrances which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
g. (xiv) this Agreement and the Management Agreement have has been duly authorized, executed and delivered by each of the Company and the Operating Partnership and each is a legal, valid and binding agreement of each of the Company and the Operating Partnership enforceable against the Company and the Operating Partnership in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, and by general equitable principles, and except to the extent that the indemnification and contribution provisions of Section 12 9 hereof may be limited by federal or state securities laws and public policy considerations in respect thereof;
h. (xv) no approval, authorization, consent or order of or filing with any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency is required in connection with the Company’s or the Operating Partnership’s execution, delivery and performance of this Agreement Agreement, the consummation of the transactions contemplated herein by the Company or the Operating Partnership, their consummation of the transactions contemplated herein, and including the Company’s issuance, sale and delivery of the Placement Shares, other than (A) such as have been obtained, or will have been obtained at the Closing Time or the relevant Settlement DateDate of Delivery, as the case may be, under the Securities Act and the Exchange Act, (B) such approvals as have been obtained in connection with the approval of the listing of the Placement Shares on the Exchange, (C) such as have been obtained or made under the rules and regulations of the Financial Industry Regulatory Authority (“FINRA”) and (D) any necessary qualification under the securities or “blue sky sky” laws of the various jurisdictions in which the Placement Shares are being offered by the AgentUnderwriters, or (C) any such approvals, authorizations, consents, orders, or filings that if not obtained or made, would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect and which would not reasonably be expected to have a material adverse effect on the Company and the Operating Partnership’s ability to perform their agreed upon obligations under this Agreement;
i. (xvi) each of the Company and the Subsidiaries has all necessary licenses, authorizations, consents and approvals and has made all necessary filings required under any Lawfederal, state, local or foreign law, regulation or rule, and has obtained all necessary authorizations, consents and approvals from other persons, required in order to conduct their respective businesses as described in both the Registration Statement Prospectus and the ProspectusDisclosure Package, except to the extent that any failure to have any such licenses, authorizations, consents or approvals, to make any such filings or to obtain any such authorizations, consents or approvals would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; neither the Company nor any of the Subsidiaries is required by any applicable law to obtain accreditation or certification from any governmental agency or authority in order to provide the products and services which it currently provides or which it proposes to provide as set forth in the Registration Statement and the Prospectus; neither the Company, nor any of the Subsidiaries is in violation of, in default under, or has received any notice regarding a possible violation, default or revocation of any such license, authorization, consent or approval or any federal, state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Company or any of the Subsidiaries the effect of which could would reasonably be expected to result in a Material Adverse Change; and no such license;
(A) at the time of filing the Original Registration Statement, authorization, consent or approval contains a materially burdensome restriction that is not adequately disclosed in each (B) at the time of the most recent amendment to the Registration Statement for the purposes of complying with Section 10(a)(3) of the Securities 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) and the Prospectus;
j. (C) at any time the Company meets or any person acting on its behalf (within the requirements meaning, for use this clause only, of Form S-3 under Rule 163(c) of the Securities ActAct Regulations) made any offer relating to the Shares in reliance on the exemption of Rule 163 of the Securities Act Regulations (“Rule 163”), the Company was and is a “well-known seasoned issuer” as defined in Rule 405, including not having been and not being an “ineligible issuer” as defined in Rule 405; the Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 and the Shares, since their registration on the Registration Statement, have been and remain eligible for registration by the Company on a Rule 405 “automatic shelf registration statement”; and the Company has become effective under not received from the Commission any notice pursuant to Rule 401(g)(2) of the Securities Act Regulations objecting to the use of the automatic shelf registration statement form:
(xviii) the Original Registration Statement became effective upon filing under Rule 462(e) on February 19, 2013, and any post- effective amendment thereto also became effective upon filing under Rule 462(e); no stop order suspending the effectiveness or the use of the Registration Statement has been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Company, are contemplated or threatened by the Commission; , and the Company has complied to the Commission’s satisfaction with any request on the part of the Commission for additional informationinformation have been complied with;
k. (xix) any offer that is a written communication relating to the Shares made by the Company or any person acting on its behalf (within the meaning, for this sentence only, of Rule 163(c)) prior to the filing of the Original Registration Statement as has been filed with the Commission in accordance with Rule 163 and otherwise complied with the requirements of Rule 163, including without limitation the legending requirement, to qualify such offer for the exemption from Section 5(c) of the Securities Act provided by Rule 163;
(xx) the respective times the Original Registration Statement became effective and each effective date (including amendment thereto became effective, at each deemed effective date with respect to the Agent Underwriters pursuant to Rule 430B or otherwise under 430B(f)(2) of the Securities Act) Act Regulations and as of the date hereof, complied or will comply, and the Prospectus and any further amendments or supplements to the Registration Statement or the Prospectus at the time they were filed with the Commission, were, or will, when they become effective or are filed with the Commission, as the case may be, comply, in all material respects with the requirements of the Securities Act, including Rule 415; the documents incorporated by reference in the Registration Statement and the Prospectus, when they became effective or at the time they were or hereafter are filed with the Commission, any amendments thereto complied and will comply in all material respects with the requirements of the Exchange Act;
l. the Registration Statement, as of each effective date (including each deemed effective date with respect to the Agent pursuant to Rule 430B or otherwise under Securities Act and the Securities Act)Act Regulations, and as of the date hereof, and at each Settlement Date, did not, and does not or will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and the Prospectus or any amendment or supplement thereto will not, as of its issue date, as of the applicable filing date, as of the date hereof and at each Settlement Date, contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no warranty or representation with respect to any statement contained in or omitted from the Registration Statement or the Prospectus in reliance upon and in conformity with the information concerning the Agent and furnished in writing by or on behalf of the Agent to the Company expressly for use therein; the documents incorporated by reference in the Registration Statement and the Prospectus, at the time the Registration Statement became effective or when such documents incorporated by reference were filed with the Commission, as the case may be, when read together with the other information in the Registration Statement or the Prospectus, as the case may be, did not and will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
m. as of the issue date or date of first use and at all subsequent times through each Settlement Date, each Issuer Free Writing Prospectus did not, and at the time of each sale of Placement Shares and at the Settlement date, each such Issuer Free Writing Prospectus will not, contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
n. each Issuer Free Writing Prospectus, if any, as of its issue date and at all subsequent times through the completion of the public offer and sale of the Placement Shares did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein, and any other prospectus deemed to be a part thereof that has not been superseded or modified;
o. the Company is eligible to use Free Writing Prospectuses in connection with this offering pursuant to Rules 164 and 433 under the Securities Act; any Free Writing Prospectus that the Company is required to file pursuant to Rule 433(d) has been, or will be, filed with the Commission in accordance with the requirements of the Securities Act; and each Free Writing Prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d) or that was prepared by or on behalf of or used by the Company complies or will comply in all material respects with the requirements of the Securities Act;
p. except for any Issuer Free Writing Prospectuses, the Company has not prepared, used or referred to, and will not, without the prior consent of the Agent, prepare, use or refer to, any Free Writing Prospectus;
q. the Prospectus and any Issuer Free Writing Prospectuses (to the extent any such Issuer Free Writing Prospectus was required to be filed with the Commission) delivered to the Agent for use in connection with the public offering of the Placement Shares contemplated herein have been and will be identical to the versions of such documents transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T under the Securities Act;
r. the Company filed the Registration Statement with the Commission before using any Issuer Free Writing Prospectus;
s. there are no actions, suits, proceedings, inquiries or investigations pending or, to the knowledge of the Company or the Operating Partnership, threatened against the Company or any Subsidiary or any of their respective officers and directors or to which the properties, assets or rights of any such entity are subject, at law or in equity, before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority, arbitral panel or agency which could result in a judgment, decree, award or order having a Material Adverse Effect;
t. the consolidated financial statements, including the notes thereto, included in each of the Registration Statement and the Prospectus present fairly the consolidated financial position of the Company and its subsidiaries as of the dates indicated and their consolidated results of operations and changes in financial position anRegistra
Appears in 1 contract
Sources: Underwriting Agreement (Northstar Realty Finance Corp.)
Representations and Warranties of the Company and the Operating Partnership. The Each of the Company and the Operating Partnership, jointly and severally, represent represents and warrant to, and agree with warrants to the Agent Underwriters as of the date of this Agreementhereof, as of each Representation Date the Initial Sale Time (as defined below), as of the time of each sale of Placement Shares pursuant to this Agreement Closing Time and as of any Option Closing Time (if any), and agrees with each Settlement DateUnderwriter, unless such representation, warranty or agreement specifies a different date or timethat:
a. (a) the Company has the an authorized and outstanding capitalization as set forth in both the Registration Statement Prospectus and the ProspectusDisclosure Package; the outstanding shares of capital stock of the Company and each subsidiary of the Company (each, a “Subsidiary,” which term shall include, without limitation, the Operating Partnership and its subsidiaries) have been duly and validly authorized and issued and are fully paid and non-assessable. All of the outstanding shares of capital stock, partnership interests and membership interests, as the case may be, of the subsidiaries of the Company identified on Schedule 4 hereto (each, a “Subsidiary”) have been duly authorized and are validly issued, fully paid and non-assessable securities thereof and, except as disclosed in both the ProspectusProspectus and the Disclosure Package, all of the outstanding shares of capital stock, partnership interest or membership interests, as the case may be, stock of the Subsidiaries are directly or indirectly owned of record and beneficially by the Company; except as disclosed in both the ProspectusProspectus and the Disclosure Package, there are no outstanding (i) securities or obligations of the Company or any of the Subsidiaries convertible into or exchangeable for any capital stock of the Company or any such Subsidiary, (ii) warrants, rights or options to subscribe for or purchase from the Company or any such Subsidiary any such capital stock or any such convertible or exchangeable securities or obligations, or (iii) obligations of the Company or any such Subsidiary to issue any shares of capital stock, any such convertible or exchangeable securities or obligation, or any such warrants, rights or options; all issued and outstanding units of partnership interest in the Operating Partnership (“Units”) owned by the Company are owned free and clear of any perfected security interest or any other security interests, claims, liens or encumbrances;
b. (b) each of the Company and each of the Subsidiaries (all of which are named in Exhibit 21.1 to the Registration Statement) has been duly incorporated, formed incorporated or organized and is validly existing as a corporation, corporation or general or limited partnership or limited liability company other entity in good standing under the laws of its respective jurisdiction of incorporation, formation incorporation or organization with full corporate or other power and authority to own its respective properties and to conduct its respective businesses as described in each of the Registration Statement Statement, the Prospectus and the ProspectusDisclosure Package, and, in the case of the Company and the Operating Partnership, to execute and deliver this Agreement and to consummate the transactions contemplated herein and to perform its obligations under the Amended and Restated Management Agreement, dated October 27, 2015, by and among the Company, the Operating Partnership and the Manager (the “Management Agreement”)herein;
c. (c) the Company and each all of the Subsidiaries is are, to the extent required, duly qualified or licensed and are in good standing in each jurisdiction in which it conducts its they conduct their respective businesses or in which it owns they own or leases lease real property or otherwise maintains maintain an office and in which the failure, individually or in the aggregate, to be so qualified or licensed would could have a material adverse effect on the assets, business, operations, earnings, prospects, properties or condition (financial or otherwise) ), present or prospective, of the Company and the Subsidiaries taken as a whole, whole (any such effect or change, where the context so requires, is hereinafter called a “Material Adverse Effect” or “Material Adverse Change”); except as disclosed in both the ProspectusProspectus and the Disclosure Package, no Subsidiary is prohibited or restricted, directly or indirectly, from paying dividends to the Company, or from making any other distribution with respect to such Subsidiary’s capital stock or from repaying to the Company or any other Subsidiary any amounts which may from time to time become due under any loans or advances to such Subsidiary from the Company or such other Subsidiary, or from transferring any such Subsidiary’s property or assets to the Company or to any other Subsidiary; other than as disclosed in both the ProspectusProspectus and the Disclosure Package, the Company and the Operating Partnership do not own, directly or indirectly, any capital stock or other equity securities of any other corporation or any ownership interest in any partnership, joint venture or other association;
d. the Company and the Subsidiaries are in compliance in all material respects with all applicable laws, rules, regulations, orders, decrees and judgments, including those relating to transactions with affiliates;
e. (d) neither the Company nor any Subsidiary is in breach of or in default under (nor has any event occurred which with notice, lapse of time, or both would constitute a breach of, or default under), (i) its respective charterorganizational documents, bylaws, agreement of limited partnership, operating agreement or other similar organizational documents (the “Organizational Documents”), (ii) in the performance or observance of any obligation, agreement, covenant or condition contained in any license, indenture, mortgage, deed of trust, loan or credit agreement or other agreement or instrument to which the Company or any Subsidiary is a party or by which any of them or their respective properties is are bound, or (iii) any federal, state, local or foreign law, regulation or rule or any decree, judgment, permit or order (each, a “Law”) applicable to the Company or any Subsidiary, except, in the case of clauses (ii) and (iii) above, except for such breaches or defaults which would could not, individually or in the aggregate, have a Material Adverse Effect;
f. (e) the execution, delivery delivery, performance and performance filing, as applicable, of the Transaction Documents and this Agreement, and consummation of the transactions contemplated herein and therein will not (A) conflict with, or result in any breach of, or constitute a default under (nor constitute any event which with notice, lapse of time, or both would constitute a breach of, or default under), (i) any provision of the Organizational Documents organizational documents of the Company or any Subsidiary, or (ii) any provision of any license, indenture, mortgage, deed of trust, loan or credit agreement or other agreement or instrument to which the Company or any Subsidiary is a party or by which any of them or their respective properties may be bound or affected, or under any Law federal, state, local or foreign law, regulation or rule or any decree, judgment or order applicable to the Company or any Subsidiary, except in the case of this clause (ii) for such breaches or defaults which would could not, individually or in the aggregate, have a Material Adverse Effect; or (B) result in the creation or imposition of any lien, charge, claim or encumbrance upon any property or asset of the Company or any Subsidiary;
g. (f) this Agreement and the Management Agreement have has been duly authorized, executed and delivered by each of the Company and the Operating Partnership Partnership;
(g) each Transaction Document has been duly authorized by all necessary corporate or other action (including, but not limited to, any vote of the stockholders that may be required by applicable state law or listing standards) on the part of the Company or Subsidiaries party thereto, as applicable, and, at the Closing time and each is a any Option Closing time, will be duly executed and delivered thereby and will be the legal, valid and binding agreement of the Company and the Operating Partnership such parties enforceable in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, and by general equitable principles; none of the Company and the Subsidiaries is, and except and, to the extent that knowledge of the indemnification Company and contribution provisions the Operating Partnership, none of Section 12 hereof may be limited by federal the other parties thereto are, in breach or state securities laws and public policy considerations default of (nor has any event occurred which with notice, lapse of time, or both would constitute a breach or default of) their respective obligations under the Transaction Documents, except as could not, individually or in respect thereofthe aggregate, have a Material Adverse Effect or materially interfere with the transactions contemplated thereby or hereby;
h. (h) no approval, authorization, consent or order of or filing with with, or license or permit from, any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency (including, but not limited to, in connection with the Alternative Investment Fund Managers Directive 2011/61/EU (“AIFMD”) or any laws and regulations implementing AIFMD) is required in connection with the execution, delivery and performance of this Agreement and the Transaction Documents by the Company or and the Operating PartnershipSubsidiaries party hereto and thererto, their the consummation of the transactions contemplated hereinherein and therein, and the Company’s sale and delivery of the Placement SharesShares by the Company, other than (A) such as have been obtained, or will have been obtained at the Closing Time or the relevant Settlement DateOption Closing Time, as the case may be, under the Securities Act and the Securities Exchange Act of 1934, as amended (the “Exchange Act”), (B) such approvals as have been obtained in connection with the approval of the listing of the Placement Shares on the ExchangeNew York Stock Exchange (the “NYSE”), and (C) such as have been obtained or made under the rules and regulations of the Financial Industry Regulatory Authority (“FINRA”) and (D) any necessary qualification under the securities or blue sky laws of the various jurisdictions in which the Placement Shares are being offered by the AgentUnderwriters;
i. (i) each of the Company and the Subsidiaries has all necessary licenses, authorizations, consents and approvals and has made all necessary filings required under any Lawfederal, state, local or foreign law, regulation or rule, and has obtained all necessary authorizations, consents and approvals from other persons, required in order to conduct their respective businesses as described in both the Registration Statement Prospectus and the ProspectusDisclosure Package, except to the extent that any failure to have any such licenses, authorizations, consents or approvals, to make any such filings or to obtain any such authorizations, consents or approvals would could not, individually or in the aggregate, have a Material Adverse Effect; neither the Company nor any of the Subsidiaries is required by any applicable law to obtain accreditation or certification from any governmental agency or authority in order to provide the products and services which it currently provides or which it proposes to provide as set forth in the Registration Statement and the Prospectus; neither the Company, nor any of the Subsidiaries is in violation of, in default under, or has received any notice regarding a possible violation, default or revocation of any such license, authorization, consent or approval or any federal, state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Company or any of the Subsidiaries the effect of which could result in a Material Adverse Change; and no such license, authorization, consent or approval contains a materially burdensome restriction that is not adequately disclosed in each of the Registration Statement Statement, the Prospectus and the ProspectusDisclosure Package;
j. the Company meets the requirements for use of Form S-3 under the Securities Act; (j) the Registration Statement (including, for the avoidance of doubt, if the same is required to be effective to register the offer and sale of the Shares, the Rule 462(b) Registration Statement) has become effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement thereof has been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the CompanyCompany and the Operating Partnership, are contemplated or threatened by the Commission; and the Company has complied to the Commission’s satisfaction with any request on the part of the Commission for additional information;
k. (k) the Preliminary Prospectus when filed and the Registration Statement as of each effective date (including each deemed effective date with respect to the Agent pursuant to Rule 430B or otherwise under the Securities Act) and as of the date hereof, hereof complied or will comply, and the Prospectus and any further amendments or supplements to the Registration Statement Statement, the Preliminary Prospectus or the Prospectus at the time they were filed with the Commission, were, or will, when they become effective or are filed with the Commission, as the case may be, comply, in all material respects with the requirements of the Securities Act, including Rule 415; the documents incorporated by reference in the Registration Statement Act and the Prospectus, when they became effective or at the time they were or hereafter are filed with the Commission, complied and will comply in all material respects with the requirements of the Exchange ActSecurities Act Regulations;
l. (l) the Registration Statement, as of each its effective date (including each deemed effective date with respect to the Agent pursuant to Rule 430B or otherwise under the Securities Act), and as of the date hereof, and at each Settlement Date, did not, and does not or and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and the Preliminary Prospectus does not, and the Prospectus or any amendment or supplement thereto will not, as of its issue date, as of the applicable filing date, as of the date hereof and at the Closing Time and on each Settlement DateOption Closing Time (if any), contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes and the Operating Partnership make no warranty or representation with respect to any statement contained in or omitted from the Registration Statement Statement, the Preliminary Prospectus or the Prospectus in reliance upon and in conformity with the information concerning the Agent Underwriters and furnished in writing by or on behalf of the Agent Underwriters through the Representatives to the Company expressly for use therein; the documents incorporated by reference therein (that information being limited to that described in the Registration Statement and last sentence of the Prospectus, at the time the Registration Statement became effective or when such documents incorporated by reference were filed with the Commission, as the case may be, when read together with the other information in the Registration Statement or the Prospectus, as the case may be, did not and will not include an untrue statement first paragraph of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleadingSection 9(b) hereof);
m. (m) as of [ ]:00 [am] [pm] (Eastern time) [on the issue date or date of first use and at all subsequent times through each Settlement Datethis Agreement] (the “Initial Sale Time”), each Issuer Free Writing Prospectus the Disclosure Package did not, and at the time of each sale of Placement Shares and at the Settlement dateClosing Time and each Option Closing Time, each such Issuer Free Writing Prospectus the Disclosure Package will not, contain an any untrue statement of a material fact or omit to state a any 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 its issue date or date of first use and at all subsequent times through the Initial Sale Time, each Issuer Free Writing Prospectus did not, and at the time of each sale of Shares and at the Closing Time and each Option Closing Time, each such Issuer Free Writing Prospectus will not, contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company and the Operating Partnership make no warranty or representation with respect to any statement contained in or omitted from the Disclosure Package in reliance upon and in conformity with the information concerning the Underwriters and furnished in writing by or on behalf of the Underwriters through the Representatives to the Company expressly for use therein (that information being limited to that described in the last sentence of the first paragraph of Section 9(b) hereof);
n. (n) each Issuer Free Writing Prospectus, if any, as of its issue date and at all subsequent times through the completion of the public offer and sale of the Placement Shares did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the ProspectusStatement, including any document incorporated by reference therein, and any other prospectus deemed to be a part thereof therein that has not been superseded or modified;
o. (o) the Company is eligible to use Free Writing Prospectuses in connection with this offering pursuant to Rules 164 and 433 under the Securities Act; any Free Writing Prospectus that the Company is required to file pursuant to Rule 433(d) under the Securities Act Regulations has been, or will be, filed with the Commission in accordance with the requirements of the Securities ActAct and the Securities Act Regulations; and each Free Writing Prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d) under the Securities Act Regulations or that was prepared by or on behalf of or used by the Company complies or will comply in all material respects with the requirements of the Securities ActAct and the Securities Act Regulations;
p. (p) except for any the Issuer Free Writing ProspectusesProspectuses identified in Schedule II hereto, and any electronic road show relating to the public offering of shares contemplated herein, the Company has not prepared, used or referred to, and will not, without the prior consent of the AgentRepresentatives, prepare, use or refer to, any Free Writing Prospectus;
q. (q) the Preliminary Prospectus, the Prospectus and any Issuer Free Writing Prospectuses (to the extent any such Issuer Free Writing Prospectus was required to be filed with the Commission) delivered to the Agent Underwriters for use in connection with the public offering of the Placement Shares contemplated herein have been and will be identical to the versions of such documents transmitted to the Commission for filing via the Electronic Data Gathering Analysis and Retrieval System (“▇▇▇▇▇”), except to the extent permitted by Regulation S-T under the Securities ActT;
r. (r) the Company filed the Registration Statement with the Commission before using any Issuer Free Writing Prospectus; and each Issuer Free Writing Prospectus was preceded or accompanied by the most recent Preliminary Prospectus satisfying the requirements of Section 10 under the Securities Act, which Preliminary Prospectus included an estimated price range;
s. there are no actions, suits, proceedings, inquiries or investigations pending (s) from the time of initial confidential submission of a registration statement relating to the Shares with the Commission (or, to if earlier, the knowledge of first date on which the Company engaged directly or through any person authorized to act on its behalf in any Testing-the-Waters Communication (as defined below)) through the Operating Partnershipdate hereof, threatened against the Company or any Subsidiary or any of their respective officers has been and directors or to which the properties, assets or rights of any such entity are subject, at law or in equity, before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority, arbitral panel or agency which could result in a judgment, decree, award or order having a Material Adverse Effect;
t. the consolidated financial statements, including the notes thereto, included in each of the Registration Statement and the Prospectus present fairly the consolidated financial position of the Company and its subsidiaries is an “emerging growth company” as of the dates indicated and their consolidated results of operations and changes in financial position andefined i
Appears in 1 contract
Sources: Underwriting Agreement (Polar Star Realty Trust Inc.)
Representations and Warranties of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, represent and warrant toto the Underwriter, and agree with the Agent as of the date of this Agreement, as of each Representation Date (as defined below)hereof, as of the time of each sale of Placement Shares pursuant to this Agreement Closing Time and as of each Settlement Dateany Date of Delivery, unless such representation, warranty or agreement specifies a different date or timethat:
a. (i) the Company has the an authorized and outstanding capitalization as set forth in both the Registration Statement Prospectus and the ProspectusDisclosure Package; the outstanding shares of capital stock of the Company and NRFC Sub-REIT Corp., a Maryland corporation and a subsidiary of the Operating Partnership (the “Private REIT”), have been duly and validly authorized and issued and are fully paid and non-assessable. All nonassessable;
(ii) the outstanding partnership interests of the outstanding shares of capital stock, partnership interests and membership interests, as the case may be, of the subsidiaries of the Company identified on Schedule 4 hereto (each, a “Subsidiary”) Operating Partnership have been duly and validly authorized and are validly issued, fully paid and non-assessable securities thereof and, except as disclosed in the Prospectus, ; all of the outstanding shares of capital stock, partnership interest or membership interests, as the case may be, stock of the Subsidiaries Private REIT are directly or and indirectly owned of record and beneficially by the Operating Partnership and the Company; , respectively;
(iii) except as disclosed in both the ProspectusProspectus and the Disclosure Package, there are no outstanding (iA) securities or obligations of the Company or any the subsidiaries of the Subsidiaries Company required to be set forth in Exhibit 21.1 to the Company’s Form 10-K for the fiscal year ended December 31, 2011 (the “Subsidiaries”), convertible into or exchangeable for any capital stock of or partnership interests, membership interests or other equity interests, as the case may be, in the Company or any such Subsidiary, (iiB) warrants, rights or options to subscribe for or purchase from the Company or any such Subsidiary any such capital stock or any such convertible or exchangeable securities or obligations, or (iiiC) obligations of the Company or any such Subsidiary to issue any shares of capital stocksecurities or obligations, any such convertible or exchangeable securities or obligationobligations, or any such warrants, rights or options; all issued options the existence of which, in each case of (A), (B) and outstanding units of partnership interest (C), is required to be disclosed in the Operating Partnership (“Units”) owned by Prospectus and the Company Disclosure Package and are owned free and clear of any perfected security interest or any other security interests, claims, liens or encumbrancesnot so disclosed;
b. (iv) each of the Company and each of the Subsidiaries has been duly incorporated, formed incorporated or organized and is validly existing as a corporation, general or limited partnership or limited liability company company, as the case may be, except to the extent, in the case of the Subsidiaries, that the failure to be so organized would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect and is in good standing under the laws of its respective jurisdiction of incorporation, formation incorporation or organization with full power except to the extent that the failure to be so qualified or in good standing would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
(v) each of the Company and the Subsidiaries have the corporate, partnership or limited liability company power, as the case may be, and authority to own its their respective properties and to conduct its their respective businesses businesses, each as described in each of the Registration Statement Statement, the Prospectus and the ProspectusDisclosure Package except to the extent that the failure to have such power or authority would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, and, in the case of the Company and the Operating Partnership, to execute and deliver this Agreement and to consummate the transactions contemplated herein and to perform its obligations under the Amended and Restated Management described in this Agreement, dated October 27, 2015, by and among the Company, the Operating Partnership and the Manager (the “Management Agreement”);
c. (vi) the Company and each of the Subsidiaries is are duly qualified or licensed and in good standing in each jurisdiction in which it conducts its businesses where such qualification or in which it owns or leases real property or otherwise maintains an office and in which license is required except where the failure, individually or in the aggregate, to be so qualified or licensed would not reasonably be expected to have a material adverse effect on the assets, business, operations, earnings, prospects, properties or condition (financial or otherwise) of the Company and the Subsidiaries taken as a whole, (any such effect or change, where the context so requires, is hereinafter called a “Material Adverse Effect” or “Material Adverse Change”); ;
(vii) except as disclosed in both the ProspectusProspectus and the Disclosure Package, no Subsidiary the Operating Partnership is neither contractually prohibited or nor contractually restricted, directly or indirectly, from paying dividends to the Company, or from making any other distribution with respect to such Subsidiarythe Operating Partnership’s partnership interests or from repaying to the Company or another subsidiary of the Company any amounts which may from time to time become due under any loans or advances to the Operating Partnership from the Company or another subsidiary of the Company, or from transferring the Operating Partnership’s property or assets to the Company or another subsidiary of the Company;
(viii) except as disclosed in both the Prospectus and the Disclosure Package, the Private REIT is neither contractually prohibited nor contractually restricted, directly or indirectly, from paying dividends to the Operating Partnership, or from making any other distribution with respect to the Private REIT’s shares of capital stock or from repaying to the Company, the Operating Partnership or another subsidiary of the Company any amounts which may from time to time become due under any loans or advances to the Private REIT from the Company, the Operating Partnership or another subsidiary of the Company, or from transferring the Private REIT’s property or assets to the Company, the Operating Partnership or another subsidiary of the Company;
(ix) except as disclosed in both the Prospectus and the Disclosure Package, no Subsidiary (other than the Operating Partnership and the Private REIT, which are covered above) is contractually prohibited or restricted, directly or indirectly, from paying dividends to the Operating Partnership or the Private REIT, to the extent such Subsidiary is a direct subsidiary of the Operating Partnership or the Private REIT, or from making any other distribution with respect to the outstanding membership interests of such Subsidiary or from repaying to the Company, the Operating Partnership or another subsidiary of the Company any amounts which may from time to time become due under any loans or advances to such Subsidiary from the Company Company, the Operating Partnership or such other Subsidiaryanother subsidiary of the Company, or from transferring any such Subsidiary’s property or assets to the Company, the Operating Partnership or another subsidiary of the Company except for any such prohibitions and restrictions that would not individually or in the aggregate reasonably be expected to have a Material Adverse Effect or to the extent that any other Subsidiary; other than such restriction would currently materially limit the Company’s ability to pay dividends or that would be reasonably likely to materially limit the future payment of dividends on Common Stock;
(x) the Agreement of Limited Partnership of the Operating Partnership, dated as of October 19, 2004, as amended (the “Partnership Agreement”), has been duly and validly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally or by general principles of equity, and except to the extent that the indemnification and contribution provisions thereof may be limited by federal or state securities laws and public policy considerations in respect thereof;
(xi) the Company is the sole general partner of the Operating Partnership and owns units of partnership interest in the Operating Partnership (“OP Units”) representing an ownership interest in the Operating Partnership in the percentage set forth in both the Prospectus and the Disclosure Package, and, except as disclosed in the Prospectus, the Company Prospectus and the Operating Partnership do not ownDisclosure Package, directly or indirectlysuch ownership interest is free and clear of any pledge, any capital stock lien, encumbrance, security interest or other equity securities of claim except for any other corporation or any ownership pledge, lien, encumbrance, security interest in any partnership, joint venture or other associationclaim that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
d. the Company and the Subsidiaries are in compliance in all material respects with all applicable laws, rules, regulations, orders, decrees and judgments, including those relating to transactions with affiliates;
e. (xii) neither the Company nor any Subsidiary is in breach of or in default under (nor has any event occurred which with notice, lapse of time, or both would constitute a breach of, or default under), (i) its respective charterorganizational documents, bylaws, agreement of limited partnership, operating agreement or other similar organizational documents (the “Organizational Documents”), (ii) in the performance or observance of any obligation, agreement, covenant or condition contained in any license, indenture, mortgage, deed of trust, loan or credit agreement or other agreement or instrument to which the Company or any Subsidiary is a party or by which any of them or their respective properties or assets is bound, or (iii) any federal, state, local or foreign law, regulation or rule or any decree, judgment, permit or order (each, a “Law”) applicable to the Company or any Subsidiary, except, in the case of clauses (ii) and (iii) above, except for such breaches or defaults which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
f. (xiii) the execution, delivery and performance of this Agreement, Agreement and consummation of the transactions contemplated herein will not (A) conflict with, or result in any breach of, or constitute a default under (nor constitute any event which with notice, lapse of time, or both would constitute a breach of, or default under), ): (i1) any provision of the Organizational Documents organizational documents of the Company or any Subsidiary, or (ii2) any provision of any license, indenture, mortgage, deed of trust, loan or credit agreement or other agreement or instrument to which the Company or any Subsidiary is a party or by which any of them or their respective assets or properties may be bound or affected, or under any Law federal, state, local or foreign law, regulation or rule or any decree, judgment or order applicable to the Company or any Subsidiary, except in the case of this clause (ii2) for such breaches or defaults which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse EffectEffect and which would not reasonably be expected to have a material adverse effect on the Company and the Operating Partnership’s ability to perform their agreed upon obligations under the Agreement; or (B) result in the creation or imposition of any lien, charge, claim or encumbrance upon any property or asset of the Company or any Subsidiary, except for such liens, charges, claims or encumbrances which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
g. (xiv) this Agreement and the Management Agreement have has been duly authorized, executed and delivered by each of the Company and the Operating Partnership and each is a legal, valid and binding agreement of each of the Company and the Operating Partnership enforceable against the Company and the Operating Partnership in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, and by general equitable principles, and except to the extent that the indemnification and contribution provisions of Section 12 9 hereof may be limited by federal or state securities laws and public policy considerations in respect thereof;
h. (xv) no approval, authorization, consent or order of or filing with any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency is required in connection with the Company’s or the Operating Partnership’s execution, delivery and performance of this Agreement Agreement, the consummation of the transactions contemplated herein by the Company or the Operating Partnership, their consummation of the transactions contemplated herein, and including the Company’s issuance, sale and delivery of the Placement Shares, other than (A) such as have been obtained, or will have been obtained at the Closing Time or the relevant Settlement DateDate of Delivery, as the case may be, under the Securities Act and the Exchange Act, or (B) such approvals as have been obtained in connection with the approval of the listing of the Placement Shares on the Exchange, (C) such as have been obtained or made under the rules and regulations of the Financial Industry Regulatory Authority (“FINRA”) and (D) any necessary qualification under the securities or “blue sky sky” laws of the various jurisdictions in which the Placement Shares are being offered by the AgentUnderwriter, or (C), any such approvals, authorizations, consents, orders, or filings that if not obtained or made, would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect and which would not reasonably be expected to have a material adverse effect on the Company and the Operating Partnership’s ability to perform their agreed upon obligations under this Agreement;
i. (xvi) each of the Company and the Subsidiaries has all necessary licenses, authorizations, consents and approvals and has made all necessary filings required under any Lawfederal, state, local or foreign law, regulation or rule, and has obtained all necessary authorizations, consents and approvals from other persons, required in order to conduct their respective businesses as described in both the Registration Statement Prospectus and the ProspectusDisclosure Package, except to the extent that any failure to have any such licenses, authorizations, consents or approvals, to make any such filings or to obtain any such authorizations, consents or approvals would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; neither the Company nor any of the Subsidiaries is required by any applicable law to obtain accreditation or certification from any governmental agency or authority in order to provide the products and services which it currently provides or which it proposes to provide as set forth in the Registration Statement and the Prospectus; neither the Company, nor any of the Subsidiaries is in violation of, in default under, or has received any notice regarding a possible violation, default or revocation of any such license, authorization, consent or approval or any federal, state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Company or any of the Subsidiaries the effect of which could would reasonably be expected to result in a Material Adverse Change; and no such license, authorization, consent or approval contains a materially burdensome restriction that is not adequately disclosed in each of the Registration Statement and the Prospectus;
j. the Company meets the requirements for use of Form S-3 under the Securities Act; (xvii) the Registration Statement has become been declared effective under the Securities Act and by the Commission; the Rule 462(b) Registration Statement, if any, is effective; no stop order suspending the effectiveness or the use of the Registration Statement Statement, including any Rule 462(b) Registration Statement, has been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Company, are contemplated or threatened by the Commission; and the Company has complied to the Commission’s satisfaction with any request on the part of the Commission for additional information;
k. (xviii) the Registration Statement Preliminary Prospectus, as of each effective its date (including each deemed effective date with respect to the Agent pursuant to Rule 430B or otherwise under the Securities Act) and as of the date hereof, complied or complies, the Registration Statement, as of each effective date and as of the date hereof, complied, complies or will complycomply in all material respects, and the Prospectus as of its date and any further amendments or supplements to the Registration Statement Statement, the Preliminary Prospectus or the Prospectus at the time they were filed with the Commission, were, or willwill comply in all material respects, when they become effective or are filed with the Commission, as the case may be, comply, in all material respects with the requirements of the Securities Act, including Rule 415; the documents incorporated by reference in the Registration Statement Act and the Prospectus, when they became effective or at the time they were or hereafter are filed with the Commission, complied and will comply in all material respects with the requirements of the Exchange Act;
l. Securities Act Regulations; the Registration Statement, as of each effective date (including each deemed effective date with respect to the Agent pursuant to Rule 430B or otherwise under the Securities Act), and as of the date hereof, and at each Settlement Datedate, did not, and does not or will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; the Preliminary Prospectus, as of its date, did not contain and the Prospectus or any amendment or supplement thereto will notthereto, as of its issue datetheir respective dates, as of the applicable filing date, as of the date hereof hereof, the Closing Time and at on each Settlement DateDate of Delivery (if any), will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no warranty or representation with respect to any statement contained in or omitted from the Registration Statement Statement, the Preliminary Prospectus or the Prospectus or any amendment or supplement to any of the foregoing in reliance upon and in conformity with the information concerning the Agent Underwriter and furnished in writing by or on behalf of the Agent Underwriter to the Company expressly for use therein; ;
(xix) the documents incorporated by reference in Disclosure Package as of the Registration Statement and the Prospectus, at the time the Registration Statement became effective or when such documents incorporated by reference were filed with the Commission, as the case may be, when read together with the other information in the Registration Statement or the Prospectus, as the case may beApplicable Time, did not and will not include an any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
m. as of the issue date or date of first use and at all subsequent times through each Settlement Date, each Issuer Free Writing Prospectus did not, and at the time of each sale of Placement Shares and at the Settlement date, each such Issuer Free Writing Prospectus will not, contain an untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
n. ; and each Issuer Free Writing Prospectus, if any, as of its issue date and at all subsequent times through Prospectus included in the completion of the public offer and sale of the Placement Shares did not, Disclosure Package does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement Statement, the Preliminary Prospectus or the Prospectus and each such Issuer Free Writing Prospectus, including as supplemented by and taken together with the other information comprising the Disclosure Package as of the Applicable Time, did not include any document incorporated by reference untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, and any other prospectus deemed to be a part thereof that has in the light of the circumstances under which they were made, not been superseded or modified;
o. the Company is eligible to use Free Writing Prospectuses in connection with this offering pursuant to Rules 164 and 433 under the Securities Actmisleading; any Free Writing Prospectus provided, however, that the Company is required makes no warranty or representation with respect to file pursuant to Rule 433(d) has been, or will be, filed any statement contained in the Disclosure Package in reliance upon and in conformity with the Commission information concerning the Underwriter and furnished in accordance with the requirements of the Securities Act; and each Free Writing Prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d) or that was prepared writing by or on behalf of or used by the Company complies or will comply in all material respects with the requirements of the Securities Act;
p. except for any Issuer Free Writing Prospectuses, the Company has not prepared, used or referred to, and will not, without the prior consent of the Agent, prepare, use or refer to, any Free Writing Prospectus;
q. the Prospectus and any Issuer Free Writing Prospectuses (Underwriter to the extent any such Issuer Free Writing Prospectus was required to be filed with the Commission) delivered to the Agent for use in connection with the public offering of the Placement Shares contemplated herein have been and will be identical to the versions of such documents transmitted to the Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation S-T under the Securities Act;
r. the Company filed the Registration Statement with the Commission before using any Issuer Free Writing Prospectus;
s. there are no actions, suits, proceedings, inquiries or investigations pending or, to the knowledge of the Company or the Operating Partnership, threatened against the Company or any Subsidiary or any of their respective officers and directors or to which the properties, assets or rights of any such entity are subject, at law or in equity, before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority, arbitral panel or agency which could result in a judgment, decree, award or order having a Material Adverse Effect;
t. the consolidated financial statements, including the notes thereto, included in each of the Registration Statement and the Prospectus present fairly the consolidated financial position of the Company and its subsidiaries as of the dates indicated and their consolidated results of operations and changes in financial position anCompan
Appears in 1 contract
Sources: Underwriting Agreement (Northstar Realty Finance Corp.)