Representations and Warranties by the Company. The Company represents and warrants to the Sales Agent, the Forward Seller and the Forward Purchaser as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 8(o) of this Agreement, as of that date on which any Placement Notice is given hereunder, as of the time of each sale of any Issuance Shares or Forward Hedge Shares pursuant to this Agreement (the “Applicable Time”) and as of each Settlement Date (as defined below), and agrees with the Sales Agent, the Forward Seller and the Forward Purchaser, as follows: (1) The Company satisfies all of the requirements of the Securities Act for use of Form S-3 for the offering of the Shares contemplated hereby and the offering and sale of Shares contemplated hereby complies with the requirements of Rule 415 under the Securities Act. At the time of the initial filing of the Registration Statement, at the time of the most recent amendment thereto 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), at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Securities Act) made any offer relating to the Shares in reliance on the exemption of Rule 163 under the Securities Act and at the date hereof, the Company was and is a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act, including not having been and not being an “ineligible issuer,” as defined in Rule 405 under the Securities Act. The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 under the Securities Act, 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.” The Company has not received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting to the use of the automatic shelf registration statement form. The Company has paid or will pay the required Commission filing fees relating to the Shares within the time required by Rule 456(b)(1)(i) under the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Securities Act (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) under the Securities Act either in a post-effective amendment to the Registration Statement or on the cover page of the Prospectus). (2) The Original Registration Statement became effective upon filing under Rule 462(e) under the Securities Act on February 12, 2020. 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 by the Commission, and any request on the part of the Commission for additional information has been complied with. (3) Any offer that is a written communication relating to the Shares made prior to the initial filing of the Registration Statement by the Company or any person acting on its behalf (within the meaning, for this paragraph only, of Rule 163(c) under the Securities Act) has been filed with the Commission in accordance with the exemption provided by Rule 163 under the Securities Act and otherwise complied with the requirements of Rule 163 under the Securities Act, including without limitation the legending requirement. (4) The Company has delivered or made available on XXXXX to each of the Sales Agent and the Forward Seller one complete copy of the Registration Statement and a copy of each consent and certificate of experts filed as a part thereof, and conformed copies of the Registration Statement (without exhibits) and the Prospectus, as amended or supplemented, in such quantities and at such places as the Sales Agent or the Forward Seller, as applicable, has reasonably requested. The Prospectus delivered to the Sales Agent and the Forward Seller for use in connection with the offering of Shares will, at the time of such delivery, be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T. (5) At the respective times the Registration Statement and each amendment thereto became effective, at each deemed effective date with respect to the Sales Agent, the Forward Seller or the Forward Purchaser pursuant to Rule 430B(f)(2) under the Securities Act, as the case may be, the Registration Statement complied and will comply in all material respects with the requirements of the Securities Act, and did not 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. The preceding sentence does not apply to statements in or omissions from the Registration Statement or any amendment thereto in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, expressly for inclusion in any of the aforementioned documents. (6) Neither the Prospectus nor any amendments or supplements thereto, at the time the Prospectus or any such amendment or supplement was issued, as of the date hereof, at each Representation Date, at each Applicable Time, and at each Settlement Date, as the case may be, included or will include an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from the Prospectus, as amended or supplemented, in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, expressly for inclusion in any of the aforementioned documents. (7) Each document incorporated by reference in the Registration Statement or the Prospectus heretofore filed, when it was filed (or, if any amendment with respect to any such document was filed, when such amendment was filed), conformed in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder, and any further documents so filed and incorporated after the date of this Agreement will, when they are filed, conform in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder; no such document when it was filed (or, if an amendment with respect to any such document was filed, when such amendment was filed), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and no such document, when it is filed, will contain an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading. (8) Each Issuer Free Writing Prospectus (as defined herein), on its issue date, as of each Applicable Time, and as of each Settlement Date, or until any earlier date that the issuer notified or notifies the Sales Agent or the Forward Seller as described in Section 8(d) hereof, 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 incorporated document deemed to be a part thereof that has not been superseded or modified. The foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with written information furnished to the Company by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, specifically for use therein. (9) This Agreement has been duly authorized, executed and delivered by the Company and this Agreement constitutes a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and by general principles of equity (the “Exceptions”). The Master Forward Confirmation will have been, as of its date, duly authorized, executed and delivered by the Company and when executed and delivered by the Forward Purchaser, such Master Forward Confirmation will constitute a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by the Exceptions. (10) The Company and its “Subsidiaries” (as defined in Section 6(a)(13) hereof) have been duly incorporated or organized and are validly existing as corporations or organizations in good standing under the laws of the states or other jurisdictions in which they are incorporated or organized, with full power and authority (corporate and other) to own, lease and operate their properties and conduct their businesses as described in the Prospectus and, with respect to the Company, to execute and deliver, and perform the Company’s obligations under, this Agreement; the Company and its Subsidiaries are duly qualified to do business as foreign corporations or organizations in good standing in each state or other jurisdiction in which their ownership or leasing of property or conduct of business legally requires such qualification, except where the failure to be so qualified, individually or in the aggregate, would not have a Material Adverse Effect. The term “Material Adverse Effect” as used herein means any material adverse effect on the condition (financial or other), net worth, business, affairs, management, prospects, results of operations or cash flow of the Company and its Subsidiaries, taken as a whole.
Appears in 6 contracts
Samples: Equity Distribution Agreement (Healthcare Realty Trust Inc), Equity Distribution Agreement (Healthcare Realty Trust Inc), Equity Distribution Agreement (Healthcare Realty Trust Inc)
Representations and Warranties by the Company. The Company hereby represents and warrants to the Sales AgentPledgee that:
8.1 It is a limited liability company duly registered and lawfully existing under PRC Laws with independent legal personality; and has full and independent legal status and capacity to execute and deliver this Agreement and may xxx or be sued as an independent party.
8.2 All reports, documents and information provided by it to the Forward Seller Pledgee prior to the effectiveness of this Agreement with respect to matters pertaining to the Pledged Equity or required by this Agreement are true and the Forward Purchaser correct in all material respects as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 8(o) effectiveness of this Agreement;
8.3 All reports, as documents and information provided by it to the Pledgee subsequent to the effectiveness of that date on which any Placement Notice is given hereunder, this Agreement with respect to matters pertaining to the Pledged Equity or required by this Agreement are true and valid in all material respects as of the time of each sale provision of any Issuance Shares or Forward Hedge Shares pursuant to the same;
8.4 Once duly executed by it, this Agreement (the “Applicable Time”) will constitute its lawful, valid and as of each Settlement Date (as defined below), binding obligations;
8.5 It has full internal corporate power and agrees authority to execute and deliver this Agreement and all other documents to be executed by it in connection with the Sales Agenttransactions contemplated hereunder as well as full power and authority to consummate the transactions contemplated hereunder;
8.6 There are no pending, the Forward Seller and the Forward Purchaser, as follows:
(1) The Company satisfies all of the requirements of the Securities Act for use of Form S-3 for the offering of the Shares contemplated hereby and the offering and sale of Shares contemplated hereby complies with the requirements of Rule 415 under the Securities Act. At the time of the initial filing of the Registration Statement, at the time of the most recent amendment thereto 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), at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Securities Act) made any offer relating to the Shares in reliance on the exemption of Rule 163 under the Securities Act and at the date hereof, the Company was and is a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act, including not having been and not being an “ineligible issuer,” as defined in Rule 405 under the Securities Act. The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 under the Securities Act, 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.” The Company has not received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting to the use of the automatic shelf registration statement form. The Company has paid or will pay the required Commission filing fees relating to the Shares within the time required by Rule 456(b)(1)(i) under the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Securities Act (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) under the Securities Act either in a post-effective amendment to the Registration Statement or on the cover page of the Prospectus).
(2) The Original Registration Statement became effective upon filing under Rule 462(e) under the Securities Act on February 12, 2020. 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 threatened, suits, legal proceedings or claims before any court or arbitral tribunal or by the Commission, and any request on the part of the Commission for additional information has been complied with.
(3) Any offer that is a written communication relating to the Shares made prior to the initial filing of the Registration Statement by governmental body or administrative authority against the Company or any person acting on its behalf assets (within the meaning, for this paragraph only, of Rule 163(c) under the Securities Act) has been filed with the Commission in accordance with the exemption provided by Rule 163 under the Securities Act and otherwise complied with the requirements of Rule 163 under the Securities Act, including without limitation the legending requirement.
(4Pledged Equity) The Company has delivered or made available on XXXXX to each of the Sales Agent and the Forward Seller one complete copy of the Registration Statement and a copy of each consent and certificate of experts filed as a part thereof, and conformed copies of the Registration Statement (without exhibits) and the Prospectus, as amended or supplemented, in such quantities and at such places as the Sales Agent or the Forward Seller, as applicable, has reasonably requested. The Prospectus delivered to the Sales Agent and the Forward Seller for use in connection with the offering of Shares will, at the time of such delivery, be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(5) At the respective times the Registration Statement and each amendment thereto became effective, at each deemed effective date with respect to the Sales Agent, the Forward Seller or the Forward Purchaser pursuant to Rule 430B(f)(2) under the Securities Act, as the case may be, the Registration Statement complied and will comply in all material respects with the requirements of the Securities Act, and did not and will not contain an untrue statement of having 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 preceding sentence does not apply to statements in or omissions from the Registration Statement or any amendment thereto in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, expressly for inclusion in any of the aforementioned documents.
(6) Neither the Prospectus nor any amendments or supplements thereto, at the time the Prospectus or any such amendment or supplement was issued, as of the date hereof, at each Representation Date, at each Applicable Time, and at each Settlement Date, as the case may be, included or will include an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from the Prospectus, as amended or supplemented, in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, expressly for inclusion in any of the aforementioned documents.
(7) Each document incorporated by reference in the Registration Statement or the Prospectus heretofore filed, when it was filed (or, if any amendment with respect to any such document was filed, when such amendment was filed), conformed in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder, and any further documents so filed and incorporated after the date of this Agreement will, when they are filed, conform in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder; no such document when it was filed (or, if an amendment with respect to any such document was filed, when such amendment was filed), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and no such document, when it is filed, will contain an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(8) Each Issuer Free Writing Prospectus (as defined herein), on its issue date, as of each Applicable Time, and as of each Settlement Date, or until any earlier date that the issuer notified or notifies the Sales Agent or the Forward Seller as described in Section 8(d) hereof, 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 incorporated document deemed to be a part thereof that has not been superseded or modified. The foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with written information furnished to the Company by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, specifically for use therein.
(9) This Agreement has been duly authorized, executed and delivered by the Company and this Agreement constitutes a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and by general principles of equity (the “Exceptions”). The Master Forward Confirmation will have been, as of its date, duly authorized, executed and delivered by the Company and when executed and delivered by the Forward Purchaser, such Master Forward Confirmation will constitute a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by the Exceptions.
(10) The Company and its “Subsidiaries” (as defined in Section 6(a)(13) hereof) have been duly incorporated or organized and are validly existing as corporations or organizations in good standing under the laws of the states or other jurisdictions in which they are incorporated or organized, with full power and authority (corporate and other) to own, lease and operate their properties and conduct their businesses as described in the Prospectus and, with respect to the Company, to execute and deliver, and perform the Company’s obligations under, this Agreement; the Company and its Subsidiaries are duly qualified to do business as foreign corporations or organizations in good standing in each state or other jurisdiction in which their ownership or leasing of property or conduct of business legally requires such qualification, except where the failure to be so qualified, individually or in the aggregate, would not have a Material Adverse Effect. The term “Material Adverse Effect” as used herein means any material adverse effect on the financial condition (financial or other), net worth, business, affairs, management, prospects, results of operations or cash flow of the Company or the ability of the Pledgor to fulfill their obligations and its Subsidiariesthe guarantee liability hereunder;
8.7 The Company hereby agrees to be severally and jointly liable to the Pledgee for the representations and warranties made by the Pledgor under Sections 7.4, taken as a whole7.5, 7.6, 7.8 and 7.10 hereunder.
8.8 The Company hereby warrants to the Pledgee that the foregoing representations and warranties will remain true and correct and fully complied with under all circumstances at any time prior to full performance of the Contractual Obligations or full satisfaction of the Secured Indebtedness.
Appears in 4 contracts
Samples: Equity Pledge Agreement (Baozun Inc.), Equity Pledge Agreement (Baozun Inc.), Equity Pledge Agreement (Baozun Inc.)
Representations and Warranties by the Company. The Company represents and warrants to each Underwriter named in the Sales Agentapplicable Underwriting Agreement, the Forward Seller and the Forward Purchaser as of the date hereof and as of each Representation Date Pricing Effective Time (as defined below) on which a certificate is required to be delivered pursuant to Section 8(o) of this Agreement, as of that date on which any Placement Notice is given hereunder, and as of the time of each sale of any Issuance Shares or Forward Hedge Shares pursuant to this Agreement (the “Applicable Time”) and as of each Settlement Date Closing Time (as defined below), and agrees ) with respect to the Sales Agent, the Forward Seller and the Forward Purchaser, Designated Securities as follows:
(1) The each document filed by the Company satisfies all of pursuant to the requirements of the Securities 1934 Act for use of Form S-3 for the offering of the Shares contemplated hereby and the offering and sale of Shares contemplated hereby complies with the requirements of Rule 415 under the Securities Act. At the time of the initial filing of which is incorporated by reference in the Registration Statement, at the time of Prospectus or the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Securities Act Pricing Disclosure Material (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), at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Securities Act) made any offer relating to the Shares in reliance on the exemption of Rule 163 under the Securities Act and at the date hereof, the Company was and is a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act, including not having been and not being an “ineligible issuer,” as defined in Rule 405 under the Securities Act. The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 under the Securities Act, 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.” The Company has not received from the Commission any notice pursuant to Rule 401(g)(2below) under the Securities Act objecting to the use of the automatic shelf registration statement form. The Company has paid or will pay the required Commission filing fees relating to the Shares within the time required by Rule 456(b)(1)(i) under the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Securities Act (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) under the Securities Act either in a post-effective amendment to the Registration Statement or on the cover page of the Prospectus).
(2) The Original Registration Statement became effective upon filing under Rule 462(e) under the Securities Act on February 12, 2020. 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 by the Commission, and any request on the part of the Commission for additional information has been complied with.
(3) Any offer that is a written communication relating to the Shares made prior to the initial filing of the Registration Statement by the Company or any person acting on its behalf (within the meaning, for this paragraph only, of Rule 163(c) under the Securities Act) has been when so filed with the Commission in accordance with the exemption provided by Rule 163 under the Securities Act and otherwise complied with the requirements of Rule 163 under the Securities Act, including without limitation the legending requirement.
(4) The Company has delivered or made available on XXXXX to each of the Sales Agent and the Forward Seller one complete copy of the Registration Statement and a copy of each consent and certificate of experts filed as a part thereof, and conformed copies of the Registration Statement (without exhibits) and the Prospectus, as amended or supplemented, in such quantities and at such places as the Sales Agent or the Forward Seller, as applicable, has reasonably requested. The Prospectus delivered to the Sales Agent and the Forward Seller for use in connection with the offering of Shares will, at the time of such delivery, be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(5) At the respective times the Registration Statement and each amendment thereto became effective, at each deemed effective date with respect to the Sales Agent, the Forward Seller or the Forward Purchaser pursuant to Rule 430B(f)(2) under the Securities Act, as the case may be, the Registration Statement complied and will comply in all material respects with the requirements 1934 Act and the rules and regulations thereunder, and each document, if any, hereafter filed by the Company and so incorporated by reference in the Prospectus will comply when so filed with the 1934 Act and the rules and regulations thereunder;
(2) at the Effective Time the Registration Statement (and any amendments and supplements thereto, other than supplements relating only to securities other than the Designated Securities) will comply and when filed or at the Closing Time, the Prospectus (and any amendments and supplements thereto, other than supplements relating only to securities other than Designated Securities) will comply, in all material respects with the 1933 Act and the 1933 Act Regulations;
(3) each Preliminary Prospectus, if any, relating to the Designated Securities filed pursuant to Rule 424 under the 1933 Act complied when so filed in all material respects with the 1933 Act and the 1933 Act Regulations;
(4) (i) at the Effective Time of the Securities Act, and did not and Registration Statement it 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 preceding sentence does not apply to statements in or omissions from ; (ii) at the Registration Statement or any amendment thereto in reliance upon and in conformity with written information relating to the Sales AgentPricing Effective Time, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales AgentPricing Disclosure Material (as defined below), the Forward Seller or the Forward Purchaser, as applicable, expressly for inclusion in any of the aforementioned documents.
(6) Neither the Prospectus nor any amendments or supplements thereto, at the time the Prospectus or any such amendment or supplement was issued, as of the date hereof, at each Representation Date, at each Applicable Time, and at each Settlement Date, as the case may be, included or will include did not contain an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from ; and (iii) the ProspectusProspectus as of the date of the Pricing Supplement will not, and the Prospectus (as amended or supplemented, in reliance upon and in conformity with written information other than as to supplements relating only to securities other than the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, Designated Securities) as applicable, expressly for inclusion in any of the aforementioned documents.
(7) Each document incorporated by reference in the Registration Statement or the Prospectus heretofore filedClosing Time will not, when it was filed (or, if any amendment with respect to any such document was filed, when such amendment was filed), conformed in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder, and any further documents so filed and incorporated after the date of this Agreement will, when they are filed, conform in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder; no such document when it was filed (or, if an amendment with respect to any such document was filed, when such amendment was filed), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and no such document, when it is filed, will contain an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary in order to make the statements therein therein, in the light of the circumstances under which they were made, not misleading.
; except that these representations and warranties do not apply to (8) Each Issuer Free Writing Prospectus (as defined herein), on its issue date, as of each Applicable Time, and as of each Settlement Date, a) statements or until any earlier date that the issuer notified or notifies the Sales Agent or the Forward Seller as described in Section 8(d) hereof, did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained omissions in the Registration Statement or Statement, any Preliminary Prospectus, the Prospectus, including any incorporated document deemed amendments or supplements to be a part thereof that has not been superseded the foregoing, or modified. The foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing Prospectus the Pricing Disclosure Material, based upon and in conformity with written information furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, specifically any Underwriter expressly for use therein.therein and (b) any Form T-1 Statement of Eligibility and Qualification included as an exhibit to the Registration Statement;
(95) This Agreement has been duly authorized, executed and delivered by the Company and this Agreement Registration Statement constitutes a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and by general principles of equity (the an “Exceptions”). The Master Forward Confirmation will have been, as of its date, duly authorized, executed and delivered by the Company and when executed and delivered by the Forward Purchaser, such Master Forward Confirmation will constitute a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by the Exceptions.
(10) The Company and its “Subsidiariesautomatic shelf registration statement” (as defined in Section 6(a)(13) hereof) have been duly incorporated or organized and are validly existing as corporations or organizations in good standing Rule 405 under the laws 0000 Xxx) filed within three years of the states or other jurisdictions in which they are incorporated or organized, with full power and authority (corporate and other) to own, lease and operate their properties and conduct their businesses as described in date hereof; no notice of objection of the Prospectus and, Commission with respect to the Company, use of the Registration Statement pursuant to execute and deliver, and perform Rule 401(g)(2) under the 1933 Act has been received by the Company’s obligations under, this Agreement; and the Company is a “well-known seasoned issuer’ and its Subsidiaries are duly qualified to do business as foreign corporations or organizations in good standing is not an ineligible issuer in each state or other jurisdiction case as defined in which their ownership or leasing of property or conduct of business legally requires such qualification, except where Rule 405 at the failure “determination dates” relevant to be so qualified, individually or in the aggregate, would not have a Material Adverse Effect. The term “Material Adverse Effect” as used herein means any material adverse effect on the condition (financial or other), net worth, business, affairs, management, prospects, results of operations or cash flow offering and sale of the Designated Securities under the Registration Statement (as described in such definition); and
(6) the Company has not used any free writing prospectus other than a Permitted Free Writing Prospectus or used a Permitted Free Writing Prospectus except in compliance with Rule 433 under the 1933 Act and its Subsidiaries, taken as a wholeotherwise in compliance with the 1933 Act.
Appears in 3 contracts
Samples: Underwriting Agreement, Underwriting Agreement (General Electric Co), Underwriting Agreement (General Electric Co)
Representations and Warranties by the Company. The Company represents and warrants to the Sales Agent, the Forward Seller and the Forward Purchaser BTIG as of (i) the date hereof and as of hereof, (ii) each date on which a Placement Notice becomes effective pursuant to Section 2 hereof, (iii) each Representation Date (as defined belowherein) on which a certificate is certificates are required to be delivered pursuant to Section 8(o7(o) of this Agreement, as of that date on which any Placement Notice is given hereunder, as of (iv) the time of each sale of any Issuance Shares Securities or Forward Hedge Shares any securities pursuant to this Agreement (the “Applicable Time”) and as of (v) each Settlement Date (as defined below), and agrees with the Sales Agent, the Forward Seller and the Forward PurchaserBTIG, as follows:follows (provided, that the representations and warranties of the Company set forth in Section 5(36)(ii) are only made as of the date hereof):
(1) The Company satisfies all of the requirements of Securities have been duly registered under the Securities Act for use of Form S-3 for pursuant to the offering of the Shares contemplated hereby and the offering and sale of Shares contemplated hereby complies with the requirements of Rule 415 Registration Statement. The Registration Statement has become effective under the Securities Act. At , or, with respect to any registration statement to be filed to register the time of the initial filing of the Registration Statement, at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) offer and sale of the Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(dRule 462(b) of the Exchange Act or form of prospectus), at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Securities Act) made any offer relating to the Shares in reliance on the exemption of Rule 163 under the Securities Act and at the date hereof, the Company was and is a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act, including not having been and not being an the documents incorporated by reference therein (a “ineligible issuer,” as defined in Rule 405 under the Securities Act. The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 under the Securities Act, and the Shares, since their registration on the 462(b) Registration Statement”), have been and remain eligible for registration by the Company on a Rule 405 “automatic shelf registration statement.” The Company has not received from will be filed with the Commission any notice pursuant to Rule 401(g)(2) and become effective under the Securities Act objecting prior to the time of any sale of Securities pursuant to such Rule 462(b) Registration Statement, and no stop order preventing or suspending the use of any base prospectus, the automatic shelf registration statement form. The Company has paid Prospectus Supplement, the Prospectus or will pay the required Commission filing fees relating to the Shares within the time required by Rule 456(b)(1)(i) under the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Securities Act any Permitted Free Writing Prospectus (includingas defined below), if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) under the Securities Act either in a post-effective amendment to the Registration Statement or on the cover page of the Prospectus).
(2) The Original Registration Statement became effective upon filing under Rule 462(e) under the Securities Act on February 12, 2020. No stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act or any Rule 462(b) Registration Statement and no proceedings for that such purpose have been instituted or are pending or, to the knowledge of the Company, are contemplated by the Commission, and any request on the part of the Commission for additional information has been complied with.
(3) Any offer that is a written communication relating to the Shares made prior to the initial filing of the Registration Statement by the Company or any person acting on its behalf (within the meaning, for this paragraph only, of Rule 163(c) under the Securities Act) has been filed with the Commission in accordance with the exemption provided by Rule 163 under the Securities Act and otherwise complied with the requirements of Rule 163 under the Securities Act, including without limitation the legending requirement.
(4) The Company has delivered or made available on XXXXX to each of the Sales Agent and the Forward Seller one complete copy of the Registration Statement and a copy of each consent and certificate of experts filed as a part thereof, and conformed copies of the Registration Statement (without exhibits) and the Prospectus, as amended or supplemented, in such quantities and at such places as the Sales Agent or the Forward Seller, as applicable, has reasonably requested. The Prospectus delivered to the Sales Agent and the Forward Seller for use in connection with the offering of Shares will, at the time of such delivery, be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(5) At the respective times each of the Registration Statement, any Rule 462(b) Registration Statement and each amendment any post-effective amendments thereto became effective, at each deemed or becomes effective and as of the date with respect to the Sales Agent, the Forward Seller or the Forward Purchaser pursuant to Rule 430B(f)(2) under the Securities Act, as the case may behereof, the Registration Statement, any Rule 462(b) Registration Statement and any amendments and supplements thereto complied and will comply in all material respects with the requirements of the Securities Act. The conditions for the use of Form S-3, as set forth in the General Instructions thereto, have been complied with and the Registration Statement meets, and the offering and sale of the Securities as contemplated hereby complies with, the requirements of Rule 415 under the Securities Act (including without limitation, Rule 415(a)(5)). The initial effective date of the Registration Statement was not earlier than the date three years before the date of this Agreement. The Registration Statement, as of the date hereof and each effective date with respect thereto, did not 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 in order to make the statements therein not misleading. The preceding sentence does not apply to statements in or omissions from the Registration Statement or any amendment thereto in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, expressly for inclusion in any of the aforementioned documents.
(6) Neither the Prospectus nor any amendments or supplements thereto, at the time the Prospectus or any such amendment or supplement was issued, as of the date hereof, at each Representation Date, at each Applicable Timetheir respective dates, and at each Applicable Time and Settlement Date, as the case may be, included or will include an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The representations and warranties set forth in the immediately preceding sentence does paragraph shall not apply to statements in or omissions from the Registration Statement or the Prospectus, as amended or supplemented, made in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, BTIG expressly for inclusion in any of the aforementioned documents.
(7) Each document incorporated by reference in the Registration Statement or the Prospectus heretofore filed, when it was filed (or, if any amendment with respect to any such document was filed, when such amendment was filed), conformed in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder, and any further documents so filed and incorporated after the date of this Agreement will, when they are filed, conform in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder; no such document when it was filed (or, if an amendment with respect to any such document was filed, when such amendment was filed), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and no such document, when it is filed, will contain an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(8) Each Issuer Free Writing Prospectus (as defined herein), on its issue date, as of each Applicable Time, and as of each Settlement Date, or until any earlier date that the issuer notified or notifies the Sales Agent or the Forward Seller as described in Section 8(d) hereof, 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 incorporated document deemed to be a part thereof that has not been superseded or modified. The foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with written information furnished to the Company by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, specifically for use therein.
(9) This Agreement has been duly authorized, executed it being understood and delivered agreed that the only such information furnished by the Company and this Agreement constitutes a valid and legally binding obligation BTIG consists of the Company enforceable against the Company in accordance with its terms, except information described as enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and by general principles of equity (the “Exceptions”). The Master Forward Confirmation will have been, as of its date, duly authorized, executed and delivered by the Company and when executed and delivered by the Forward Purchaser, such Master Forward Confirmation will constitute a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by the Exceptions.
(10) The Company and its “Subsidiaries” (as defined in Section 6(a)(1310(b) hereof) have been duly incorporated or organized and are validly existing as corporations or organizations in good standing under the laws of the states or other jurisdictions in which they are incorporated or organized, with full power and authority (corporate and other) to own, lease and operate their properties and conduct their businesses as described in the Prospectus and, with respect to the Company, to execute and deliver, and perform the Company’s obligations under, this Agreement; the Company and its Subsidiaries are duly qualified to do business as foreign corporations or organizations in good standing in each state or other jurisdiction in which their ownership or leasing of property or conduct of business legally requires such qualification, except where the failure to be so qualified, individually or in the aggregate, would not have a Material Adverse Effect. The term “Material Adverse Effect” as used herein means any material adverse effect on the condition (financial or other), net worth, business, affairs, management, prospects, results of operations or cash flow of the Company and its Subsidiaries, taken as a whole.
Appears in 2 contracts
Samples: Equity Distribution Agreement (Blackstone Mortgage Trust, Inc.), Equity Distribution Agreement (Blackstone Mortgage Trust, Inc.)
Representations and Warranties by the Company. The Company represents and warrants to the Sales Agent, the Forward Seller and the Forward Purchaser as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 8(o) of this Agreement, as of that date on which any Placement Notice is given hereunder, as of the time of each sale of any Issuance Shares or Forward Hedge Shares pursuant to this Agreement (the “Applicable Time”) and as of each Settlement Date (as defined below)to, and agrees with the Sales Agentwith, the Forward Seller and the Forward Purchaser, as followseach Underwriter that:
(1i) The Company satisfies all of meets the requirements of the Securities Act for use of Form S-3 under the Securities Act of 1933, as amended (the “Act”) and has filed with the Securities and Exchange Commission (the “Commission”) a registration statement on such Form, including a prospectus, for the registration under the Act of the Debt Securities, which registration statement has become effective. Such registration statement, as amended on the date of such registration statement’s effectiveness for purposes of Section 11 of the 1933 Act, as such Section applies to the Company and the Underwriters for the Debt Securities pursuant to Rule 430B(f)(2) under the 1933 Act (the “Effective Date”) (or upon effectiveness of any post-effective amendment thereto), including the information, if any, deemed pursuant to Rule 430A, 430B or 430C under the Act or under the Securities Exchange Act of 1934 to be part of the registration statement at the time of its effectiveness (“Rule 430 Information”), are collectively referred to herein as the “Registration Statement.” Each prospectus used before the registration statement became effective, and any prospectus or prospectus supplement that omitted Rule 430 Information that was used after such effectiveness and prior to the execution and delivery of this Agreement is herein called a “preliminary prospectus.” The preliminary prospectus supplement dated , including the accompanying prospectus dated , is herein called the “Preliminary Prospectus.” The prospectus, in the form first filed under Rule 424(b) under the Act after the date and time this Agreement is executed, is herein called the “Prospectus”;
(ii) The Company will file with the Commission the Prospectus, which will include a prospectus supplement (the “Prospectus Supplement”) relating to the Debt Securities, pursuant to Rule 424 under the Act. Copies of such Registration Statement, the Preliminary Prospectus and Prospectus, any such amendment or supplement and all documents incorporated by reference therein which were filed with the Commission on or prior to the date of this Agreement have been delivered to you and copies of the Prospectus Supplement will be delivered to you promptly after it is filed with the Commission; and
(iii) Unless specifically noted otherwise herein, any reference herein to the Registration Statement, the Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 which were filed under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) as of each effective date for purposes of the Registration Statement or on or before the date hereof for purposes of the Preliminary Prospectus or the Prospectus. If the Company files any document pursuant to the Exchange Act after the date of this Agreement and prior to the termination of the offering of the Shares contemplated hereby Debt Securities by the Underwriters, which document is deemed to be incorporated by reference into the Prospectus, the term “Prospectus” shall refer also to said prospectus as supplemented by the document so filed from and after the offering and sale of Shares contemplated hereby complies time said document is filed with the requirements of Rule 415 under Commission; any reference to any amendment to the Securities Act. At the time Registration Statement shall be deemed to refer to and include (A) any annual report of the initial filing of the Registration Statement, at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective amendment, incorporated report Company filed pursuant to Section 13 13(c) or 15(d) of the Exchange Act or form of prospectus), at after the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Securities Act) made any offer relating to the Shares in reliance on the exemption of Rule 163 under the Securities Act and at the effective date hereof, the Company was and is a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act, including not having been and not being an “ineligible issuer,” as defined in Rule 405 under the Securities Act. The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 under the Securities Act, 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.” The Company has not received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting to the use of the automatic shelf registration statement form. The Company has paid or will pay the required Commission filing fees relating to the Shares within the time required by Rule 456(b)(1)(i) under the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Securities Act (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) under the Securities Act either in a post-effective amendment to the Registration Statement or on the cover page of the Prospectus).
(2) The Original Registration Statement became effective upon filing under Rule 462(e) under the Securities Act on February 12, 2020. 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 by the Commission, and any request on the part of the Commission for additional information has been complied with.
(3) Any offer that is a written communication relating to the Shares made prior to the initial filing of the Registration Statement by the Company or any person acting on its behalf (within the meaning, for this paragraph only, of Rule 163(c) under the Securities Act) has been filed with the Commission in accordance with the exemption provided by Rule 163 under the Securities Act and otherwise complied with the requirements of Rule 163 under the Securities Act, including without limitation the legending requirement.
(4) The Company has delivered or made available on XXXXX to each of the Sales Agent and the Forward Seller one complete copy of the Registration Statement and a copy of each consent and certificate of experts filed as a part thereof, and conformed copies of the Registration Statement (without exhibits) and the Prospectus, as amended or supplemented, in such quantities and at such places as the Sales Agent or the Forward Seller, as applicable, has reasonably requested. The Prospectus delivered to the Sales Agent and the Forward Seller for use in connection with the offering of Shares will, at the time of such delivery, be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(5) At the respective times the Registration Statement and each amendment thereto became effective, at each deemed effective date with respect to the Sales Agent, the Forward Seller or the Forward Purchaser pursuant to Rule 430B(f)(2) under the Securities Act, as the case may be, the Registration Statement complied and will comply in all material respects with the requirements of the Securities Act, and did not 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. The preceding sentence does not apply to statements in or omissions from the Registration Statement or any amendment thereto in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, expressly for inclusion in any of the aforementioned documents.
(6) Neither the Prospectus nor any amendments or supplements thereto, at the time the Prospectus or any such amendment or supplement was issued, as of the date hereof, at each Representation Date, at each Applicable Time, and at each Settlement Date, as the case may be, included or will include an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from the Prospectus, as amended or supplemented, in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, expressly for inclusion in any of the aforementioned documents.
(7) Each document incorporated by reference in the Registration Statement and (B) any Prospectus Supplement relating to the Debt Securities. There are no contracts or documents of the Prospectus heretofore filedCompany that are required to be filed as exhibits to the Registration Statement or any documents incorporated by reference therein by the Act, when it was filed (or, if any amendment with respect to any such document was filed, when such amendment was filed), conformed in all material respects with the requirements of the Exchange Act and or the rules and regulations thereunder, and any further documents so filed and incorporated after the date of this Agreement will, when they are filed, conform in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder; no such document when it was filed (or, if an amendment with respect to any such document was filed, when such amendment was filed), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and no such document, when it is filed, will contain an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(8) Each Issuer Free Writing Prospectus (as defined herein), on its issue date, as of each Applicable Time, and as of each Settlement Date, or until any earlier date that the issuer notified or notifies the Sales Agent or the Forward Seller as described in Section 8(d) hereof, 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 incorporated document deemed to be a part thereof that has thereunder which have not been superseded or modified. The foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with written information furnished to the Company by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, specifically for use thereinso filed.
(9) This Agreement has been duly authorized, executed and delivered by the Company and this Agreement constitutes a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and by general principles of equity (the “Exceptions”). The Master Forward Confirmation will have been, as of its date, duly authorized, executed and delivered by the Company and when executed and delivered by the Forward Purchaser, such Master Forward Confirmation will constitute a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by the Exceptions.
(10) The Company and its “Subsidiaries” (as defined in Section 6(a)(13) hereof) have been duly incorporated or organized and are validly existing as corporations or organizations in good standing under the laws of the states or other jurisdictions in which they are incorporated or organized, with full power and authority (corporate and other) to own, lease and operate their properties and conduct their businesses as described in the Prospectus and, with respect to the Company, to execute and deliver, and perform the Company’s obligations under, this Agreement; the Company and its Subsidiaries are duly qualified to do business as foreign corporations or organizations in good standing in each state or other jurisdiction in which their ownership or leasing of property or conduct of business legally requires such qualification, except where the failure to be so qualified, individually or in the aggregate, would not have a Material Adverse Effect. The term “Material Adverse Effect” as used herein means any material adverse effect on the condition (financial or other), net worth, business, affairs, management, prospects, results of operations or cash flow of the Company and its Subsidiaries, taken as a whole.
Appears in 2 contracts
Samples: Underwriting Agreement (Public Service Co of Colorado), Underwriting Agreement (Southwestern Public Service Co)
Representations and Warranties by the Company. The Company represents and warrants to each Underwriter named in the Sales Agentapplicable Underwriting Agreement, the Forward Seller and the Forward Purchaser as of the date hereof thereof and as of each Representation Date the Closing Time (as defined below) on which a certificate is required to be delivered pursuant to Section 8(o) of this Agreement, as of that date on which any Placement Notice is given hereunder, as of the time of each sale of any Issuance Shares or Forward Hedge Shares pursuant to this Agreement (the “Applicable Time”) and as of each Settlement Date (as defined below), and agrees with the Sales Agent, the Forward Seller and the Forward Purchaser, as follows:
(1) The Company satisfies all of the requirements of the Securities Act for use of Form S-3 for the offering of the Shares contemplated hereby and the offering and sale of Shares contemplated hereby complies with the requirements of Rule 415 under the Securities Act. At the time of the initial filing of the Registration Statement, at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective amendment, incorporated report each document filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Securities Act) made any offer relating to the Shares in reliance on the exemption of Rule 163 under the Securities Act and at the date hereof, the Company was and is a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act, including not having been and not being an “ineligible issuer,” as defined in Rule 405 under the Securities Act. The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 under the Securities Act, 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.” The Company has not received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities 1934 Act objecting to which is incorporated by reference in the use of the automatic shelf registration statement form. The Company has paid or will pay the required Commission filing fees relating to the Shares within the time required by Rule 456(b)(1)(i) under the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Securities Act (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) under the Securities Act either in a post-effective amendment to the Registration Statement or on the cover page of the Prospectus).
(2) The Original Registration Statement became effective upon filing under Rule 462(e) under the Securities Act on February 12, 2020. 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 by the Commission, and any request on the part of the Commission for additional information has been Prospectus complied with.
(3) Any offer that is a written communication relating to the Shares made prior to the initial filing of the Registration Statement by the Company or any person acting on its behalf (within the meaning, for this paragraph only, of Rule 163(c) under the Securities Act) has been when so filed with the Commission in accordance with the exemption provided by Rule 163 under the Securities Act and otherwise complied with the requirements of Rule 163 under the Securities Act, including without limitation the legending requirement.
(4) The Company has delivered or made available on XXXXX to each of the Sales Agent and the Forward Seller one complete copy of the Registration Statement and a copy of each consent and certificate of experts filed as a part thereof, and conformed copies of the Registration Statement (without exhibits) and the Prospectus, as amended or supplemented, in such quantities and at such places as the Sales Agent or the Forward Seller, as applicable, has reasonably requested. The Prospectus delivered to the Sales Agent and the Forward Seller for use in connection with the offering of Shares will, at the time of such delivery, be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(5) At the respective times the Registration Statement and each amendment thereto became effective, at each deemed effective date with respect to the Sales Agent, the Forward Seller or the Forward Purchaser pursuant to Rule 430B(f)(2) under the Securities Act, as the case may be, the Registration Statement complied and will comply in all material respects with the requirements Exchange Act and the rules and regulations thereunder, and each document, if any, hereafter filed by the Company and so incorporated by reference in the Prospectus will comply when so filed with the 1934 Act and the rules and regulations thereunder;
(2) the Registration Statement and the Prospectus comply, and the Registration Statement and the Prospectus (and any amendments and supplements thereto, other than supplements relating only to securities, other than the Designated Securities) will as of the Closing Time comply, in all material respects with the 1933 Act and the 1933 Act Regulations.
(3) each Preliminary Prospectus, if any, relating to the Designated Securities Act, filed pursuant to Rule 424 under the 1933 Act complied when so filed in all material respects with the 1933 Act and the 1933 Act Regulations; and
(4) each part of the Registration Statement at the time such part became effective did not 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. The preceding sentence does not apply to statements in or omissions from the Registration Statement or any amendment thereto in reliance upon , and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, expressly for inclusion in any of the aforementioned documents.
(6) Neither the Prospectus nor any amendments or supplements thereto, at the time the Prospectus or any such amendment or supplement was issued, as of the date hereof, at each Representation Date, at each Applicable Timeof the prospectus supplement relating to the Designated Securities did not, and at each Settlement Datethe Prospectus (as amended or supplemented, other than as to supplements relating only to securities other than the case may beDesignated Securities) as of the Closing Time will not, included or will include an contain any untrue statement of a material fact or omitted or will 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. The preceding sentence does ; except that these representations and warranties do not apply to statements in or omissions from in the Registration Statement, any Preliminary Prospectus or the Prospectus, as amended or supplemented, in reliance upon and in conformity with written information relating any amendments or supplements to the Sales Agentforegoing, the Forward Seller or the Forward Purchaser based upon information furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, any Underwriter expressly for inclusion in any of the aforementioned documents.
(7) Each document incorporated by reference in the Registration Statement or the Prospectus heretofore filed, when it was filed (or, if any amendment with respect to any such document was filed, when such amendment was filed), conformed in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder, and any further documents so filed and incorporated after the date of this Agreement will, when they are filed, conform in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder; no such document when it was filed (or, if an amendment with respect to any such document was filed, when such amendment was filed), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and no such document, when it is filed, will contain an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(8) Each Issuer Free Writing Prospectus (as defined herein), on its issue date, as of each Applicable Time, and as of each Settlement Date, or until any earlier date that the issuer notified or notifies the Sales Agent or the Forward Seller as described in Section 8(d) hereof, 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 incorporated document deemed to be a part thereof that has not been superseded or modified. The foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with written information furnished to the Company by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, specifically for use therein.
(9) This Agreement has been duly authorized, executed and delivered by the Company and this Agreement constitutes a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and by general principles of equity (the “Exceptions”). The Master Forward Confirmation will have been, as of its date, duly authorized, executed and delivered by the Company and when executed and delivered by the Forward Purchaser, such Master Forward Confirmation will constitute a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by the Exceptions.
(10) The Company and its “Subsidiaries” (as defined in Section 6(a)(13) hereof) have been duly incorporated or organized and are validly existing as corporations or organizations in good standing under the laws of the states or other jurisdictions in which they are incorporated or organized, with full power and authority (corporate and other) to own, lease and operate their properties and conduct their businesses as described in the Prospectus and, with respect to the Company, to execute and deliver, and perform the Company’s obligations under, this Agreement; the Company and its Subsidiaries are duly qualified to do business as foreign corporations or organizations in good standing in each state or other jurisdiction in which their ownership or leasing of property or conduct of business legally requires such qualification, except where the failure to be so qualified, individually or in the aggregate, would not have a Material Adverse Effect. The term “Material Adverse Effect” as used herein means any material adverse effect on the condition (financial or other), net worth, business, affairs, management, prospects, results of operations or cash flow of the Company and its Subsidiaries, taken as a whole.
Appears in 2 contracts
Samples: Underwriting Agreement (General Electric Co), Underwriting Agreement (General Electric Co)
Representations and Warranties by the Company. The Company hereby represents and warrants to the Sales AgentPledgee that:
8.1 The Company is a limited liability company duly incorporated and validly existing under PRC Laws with independent legal personality; and has full and independent legal status and capacity to execute, deliver and perform this Agreement and may xxx or be sued as an independent party.
8.2 All reports, documents and information provided by the Forward Seller Company to the Pledgee prior to the effectiveness of this Agreement with respect to matters pertaining to the Pledged Equity or required by this Agreement are true, correct and the Forward Purchaser valid in all material respects as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 8(o) effectiveness of this Agreement.
8.3 All reports, documents and information provided by it to the Pledgee prior to the effectiveness of this Agreement with respect to matters pertaining to the Pledged Equity or required by this Agreement are true, correct and valid in all material respects as of that date on the effectiveness of this Agreement.
8.4 It has full power and authority to execute and deliver this Agreement and all other documents to be entered into by it which any Placement Notice is given are related to the transaction contemplated hereunder, as of the time of each sale of any Issuance Shares or Forward Hedge Shares pursuant well as to this Agreement (the “Applicable Time”) and as of each Settlement Date (as defined below), and agrees with the Sales Agent, the Forward Seller and the Forward Purchaser, as follows:
(1) The Company satisfies all of the requirements of the Securities Act for use of Form S-3 for the offering of the Shares contemplated hereby and the offering and sale of Shares contemplated hereby complies with the requirements of Rule 415 under the Securities Act. At the time of the initial filing of the Registration Statement, at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Securities Act (whether consummate 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), at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Securities Act) made any offer relating to the Shares in reliance on the exemption of Rule 163 under the Securities Act and at the date hereof, the Company was and is a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act, including not having been and not being an “ineligible issuer,” as defined in Rule 405 under the Securities Act. The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 under the Securities Act, 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.” The Company has not received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting to the use of the automatic shelf registration statement form. The Company has paid or will pay the required Commission filing fees relating to the Shares within the time required by Rule 456(b)(1)(i) under the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Securities Act (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) under the Securities Act either in a post-effective amendment to the Registration Statement or on the cover page of the Prospectus)transaction.
(2) The Original Registration Statement became effective upon filing under Rule 462(e) under the Securities Act on February 128.5 There is no pending, 2020. 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 threatened, suit, legal proceeding or claim before any court or arbitral tribunal or by the Commission, and any request on the part of the Commission for additional information has been complied with.
(3) Any offer that is a written communication relating to the Shares made prior to the initial filing of the Registration Statement by governmental body or administrative authority against the Company or any person acting on its behalf assets (within the meaning, for this paragraph only, of Rule 163(c) under the Securities Act) has been filed with the Commission in accordance with the exemption provided by Rule 163 under the Securities Act and otherwise complied with the requirements of Rule 163 under the Securities Act, including without limitation the legending requirement.
(4) The Company has delivered or made available on XXXXX to each of the Sales Agent and the Forward Seller one complete copy of the Registration Statement and a copy of each consent and certificate of experts filed as a part thereof, and conformed copies of the Registration Statement (without exhibits) and the Prospectus, as amended or supplemented, in such quantities and at such places as the Sales Agent or the Forward Seller, as applicable, has reasonably requested. The Prospectus delivered but not limited to the Sales Agent and the Forward Seller for use in connection with the offering of Shares will, at the time of such delivery, be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(5Pledged Equity) At the respective times the Registration Statement and each amendment thereto became effective, at each deemed effective date with respect to the Sales Agent, the Forward Seller or the Forward Purchaser pursuant to Rule 430B(f)(2) under the Securities Act, as the case may be, the Registration Statement complied and will comply in all material respects with the requirements of the Securities Act, and did not and will not contain an untrue statement of having 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 preceding sentence does not apply to statements in or omissions from the Registration Statement or any amendment thereto in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, expressly for inclusion in any of the aforementioned documents.
(6) Neither the Prospectus nor any amendments or supplements thereto, at the time the Prospectus or any such amendment or supplement was issued, as of the date hereof, at each Representation Date, at each Applicable Time, and at each Settlement Date, as the case may be, included or will include an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from the Prospectus, as amended or supplemented, in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, expressly for inclusion in any of the aforementioned documents.
(7) Each document incorporated by reference in the Registration Statement or the Prospectus heretofore filed, when it was filed (or, if any amendment with respect to any such document was filed, when such amendment was filed), conformed in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder, and any further documents so filed and incorporated after the date of this Agreement will, when they are filed, conform in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder; no such document when it was filed (or, if an amendment with respect to any such document was filed, when such amendment was filed), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and no such document, when it is filed, will contain an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(8) Each Issuer Free Writing Prospectus (as defined herein), on its issue date, as of each Applicable Time, and as of each Settlement Date, or until any earlier date that the issuer notified or notifies the Sales Agent or the Forward Seller as described in Section 8(d) hereof, 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 incorporated document deemed to be a part thereof that has not been superseded or modified. The foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with written information furnished to the Company by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, specifically for use therein.
(9) This Agreement has been duly authorized, executed and delivered by the Company and this Agreement constitutes a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and by general principles of equity (the “Exceptions”). The Master Forward Confirmation will have been, as of its date, duly authorized, executed and delivered by the Company and when executed and delivered by the Forward Purchaser, such Master Forward Confirmation will constitute a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by the Exceptions.
(10) The Company and its “Subsidiaries” (as defined in Section 6(a)(13) hereof) have been duly incorporated or organized and are validly existing as corporations or organizations in good standing under the laws of the states or other jurisdictions in which they are incorporated or organized, with full power and authority (corporate and other) to own, lease and operate their properties and conduct their businesses as described in the Prospectus and, with respect to the Company, to execute and deliver, and perform the Company’s obligations under, this Agreement; the Company and its Subsidiaries are duly qualified to do business as foreign corporations or organizations in good standing in each state or other jurisdiction in which their ownership or leasing of property or conduct of business legally requires such qualification, except where the failure to be so qualified, individually or in the aggregate, would not have a Material Adverse Effect. The term “Material Adverse Effect” as used herein means any material adverse effect on the financial condition (financial or other), net worth, business, affairs, management, prospects, results of operations or cash flow of the Company or the ability of the Company to fulfill its obligations and its Subsidiaries, taken as a wholethe guarantee liability hereunder.
8.6 The Company hereby agrees to be severally and jointly liable to the Pledgee for the representations and warranties made by the Pledgors hereunder.
8.7 All taxes and costs payable in connection with the securing of the Pledged Equity have been paid in full by the Pledgors and the Company.
8.8 The assets owned by the Company are free from any significant security interest or other encumbrances that may affect the rights and interests of the Pledgee in the equity.
8.9 The Company hereby warrant to the Pledgee that the foregoing representations and warranties will remain true and correct and fully complied with under all circumstances at any time prior to full performance of the Contractual Obligations or full satisfaction of the Secured Indebtedness.
Appears in 2 contracts
Samples: Equity Interest Pledge Agreement (ForU Worldwide Inc.), Equity Interest Pledge Agreement (ForU Worldwide Inc.)
Representations and Warranties by the Company. The Company represents and warrants to the Sales Agent, the Forward Seller and the Forward Purchaser Xxxxxxx Xxxxx as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 8(o) of this Agreement), as of that date on which any Placement Notice is given hereunder, each Applicable Time (as of the time of each sale of any Issuance Shares or Forward Hedge Shares pursuant to this Agreement (the “Applicable Time”defined below) and as of each Settlement Date (as defined below), and agrees with the Sales Agent, the Forward Seller and the Forward PurchaserXxxxxxx Xxxxx, as follows:
(1) The Company satisfies all of the requirements of the Securities Act for use of Form S-3 for the offering of the Shares contemplated hereby and the offering and sale of Shares contemplated hereby complies with the requirements of Rule 415 under the Status as a Well-Known Seasoned Issuer; Registration Statement Effective; Conform to Securities Act. ; No Misleading Statements; Conformity with XXXXX filings.
(A) At the time of filing the initial filing of the Original Registration Statement, (B) at the time of the most recent amendment thereto 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), (C) at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under of the Securities Act) made any offer relating to the Shares Securities in reliance on the exemption of Rule 163 of the Securities Act, (D) at the earliest time that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) under the Securities Act Act) of the Securities and (E) at the date hereof, the Company was was, is and is will be a “well-known seasoned issuer” as defined in Rule 405 under the Securities ActAct (“Rule 405”), including not having been and not being an “ineligible issuer,” as defined in Rule 405 under the Securities Act405. The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 under the Securities Act405, and the SharesSecurities, 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.” The Company has not received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting to the use of the automatic shelf registration statement form. The Company has paid paid, or if the Prospectus Supplement has not yet been filed with the Commission will pay pay, the required Commission filing fees relating to the Shares Securities within the time required by Rule 456(b)(1)(i) under of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under of the Securities Act (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) under the Securities Act either in a post-effective amendment to the Registration Statement or on the cover page of the Prospectus).
(2) . The Original Registration Statement became effective upon filing under Rule 462(e) on May 8, 2015, and any post-effective amendment thereto also became effective upon filing under the Securities Act on February 12, 2020Rule 462(e). 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 by the Commission, and any request on the part of the Commission for additional information has been complied with.
(3) Any offer that is a written communication relating to the Shares made prior to the initial filing of the Registration Statement by the Company or any person acting on its behalf (within the meaning, for this paragraph only, of Rule 163(c) under the Securities Act) has been filed with the Commission in accordance with the exemption provided by Rule 163 under the Securities Act and otherwise complied with the requirements of Rule 163 under the Securities Act, including without limitation the legending requirement.
(4) The Company has delivered or made available on XXXXX to each of the Sales Agent and the Forward Seller one complete copy of the Registration Statement and a copy of each consent and certificate of experts filed as a part thereof, and conformed copies of the Registration Statement (without exhibits) and the Prospectus, as amended or supplemented, in such quantities and at such places as the Sales Agent or the Forward Seller, as applicable, has reasonably requested. The Prospectus delivered to the Sales Agent and the Forward Seller for use in connection with the offering of Shares will, at the time of such delivery, be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(5) At the respective times the Original Registration Statement and each any amendment thereto became effective, at each deemed effective date with respect to Xxxxxxx Xxxxx and the Sales Agent, the Forward Seller or the Forward Purchaser Securities pursuant to Rule 430B(f)(2) under the Securities Act), as the case may beand at each relevant Settlement Date, the Registration Statement complied complied, complies and will comply in all material respects with the requirements of the Securities Act, and did not 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. The preceding sentence does not apply to statements in Prospectus and each amendment or omissions from supplement thereto, if any, at the Registration Statement time the Prospectus or any such amendment thereto or supplement is issued and at each relevant Settlement Date, complied, complies and will comply, in reliance upon and in conformity all material respects with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, expressly for inclusion in any requirements of the aforementioned documents.
(6) Neither Securities Act and neither the Prospectus nor any amendments or supplements thereto, at the time the Prospectus or any such amendment or supplement was issued, as of the date hereof, or at each Representation Date, at each Applicable Time, and at each any Settlement Date, as the case may beincluded, included includes or will include an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in Each preliminary prospectus (including the base prospectus or omissions from the Prospectus, prospectuses filed as amended or supplemented, in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, expressly for inclusion in any part of the aforementioned documents.
(7) Each document incorporated by reference in the Original Registration Statement or the Prospectus heretofore filed, when it was filed (or, if any amendment with respect to any such document was filed, thereto) complied when such amendment was filed), conformed so filed in all material respects with the requirements of the Exchange Act Securities Act. Each preliminary prospectus and the rules and regulations thereunder, and any further documents so filed and incorporated after the date of this Agreement will, when they are filed, conform Prospectus delivered to Xxxxxxx Xxxxx for use in all material respects connection with the requirements offering of any Securities was identical to the Exchange Act and electronically transmitted copies thereof filed with the rules and regulations thereunder; no such document when it was filed (orCommission pursuant to XXXXX, if an amendment with respect except to any such document was filed, when such amendment was filed), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and no such document, when it is filed, will contain an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(8) extent permitted by Regulation S-T. Each Issuer Free Writing Prospectus (as defined herein), on its issue dateProspectus, as of each Applicable Time, its issue date and as of each the relevant Applicable Time and Settlement Date, or until any earlier date that the issuer notified or notifies the Sales Agent or the Forward Seller Xxxxxxx Xxxxx as described in Section 8(d) hereof7(d), did not, does not and will not (i) include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated document by reference therein and any preliminary or other prospectus deemed to be a part thereof that has not been superseded or modifiedmodified or (ii) when taken together with the Prospectus, include 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. The foregoing sentence does representations and warranties in this Section 5(a)(1) shall not apply to statements in or omissions from the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus based made in reliance upon and in conformity with written information furnished to the Company by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, specifically Xxxxxxx Xxxxx expressly for use therein.
(9) This Agreement has been duly authorized, executed and delivered by the Company and this Agreement constitutes a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and by general principles of equity (the “Exceptions”). The Master Forward Confirmation will have been, as of its date, duly authorized, executed and delivered by the Company and when executed and delivered by the Forward Purchaser, such Master Forward Confirmation will constitute a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by the Exceptions.
(10) The Company and its “Subsidiaries” (as defined in Section 6(a)(13) hereof) have been duly incorporated or organized and are validly existing as corporations or organizations in good standing under the laws of the states or other jurisdictions in which they are incorporated or organized, with full power and authority (corporate and other) to own, lease and operate their properties and conduct their businesses as described in the Prospectus and, with respect to the Company, to execute and deliver, and perform the Company’s obligations under, this Agreement; the Company and its Subsidiaries are duly qualified to do business as foreign corporations or organizations in good standing in each state or other jurisdiction in which their ownership or leasing of property or conduct of business legally requires such qualification, except where the failure to be so qualified, individually or in the aggregate, would not have a Material Adverse Effect. The term “Material Adverse Effect” as used herein means any material adverse effect on the condition (financial or other), net worth, business, affairs, management, prospects, results of operations or cash flow of the Company and its Subsidiaries, taken as a whole.
Appears in 2 contracts
Samples: Equity Distribution Agreement (Federal Realty Investment Trust), Equity Distribution Agreement (Federal Realty Investment Trust)
Representations and Warranties by the Company. The Company represents and warrants to the Sales Agent, the Forward Seller and the Forward Purchaser as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 8(o) of this Agreement, as of that date on which any Placement Notice is given hereunder, as of the time of each sale of any Issuance Shares or Forward Hedge Shares pursuant to this Agreement (the “Applicable Time”) and as of each Settlement Date (as defined below)to, and agrees with the Sales Agentwith, the Forward Seller and the Forward Purchaser, as follows:
each Underwriter that: (1a) The Company satisfies all of meets the requirements of the Securities Act for use of Form S-3 for the offering of the Shares contemplated hereby and the offering and sale of Shares contemplated hereby complies with the requirements of Rule 415 under the Securities Act. At the time of the initial filing of the Registration Statement, at the time of the most recent amendment thereto 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), at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Securities Act) made any offer relating to the Shares in reliance on the exemption of Rule 163 under the Securities Act of 1933, as amended (the "Act") and at has filed with the date hereofSecurities and Exchange Commission (the "Commission") a registration statement on such Form, including a prospectus, for the Company was and is a “well-known seasoned issuer” as defined in Rule 405 registration under the Securities Act, including not having been and not being an “ineligible issuer,” as defined in Rule 405 under Act of the Securities Act. The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 under the Securities Act, Bonds and the SharesAdditional Bonds, since their which registration on the Registration Statement, statement has become effective. Such registration statement and prospectus may have been and remain eligible for registration by the Company on a Rule 405 “automatic shelf registration statement.” The Company has not received amended or supplemented from the Commission any notice pursuant time to Rule 401(g)(2) under the Securities Act objecting to the use of the automatic shelf registration statement form. The Company has paid or will pay the required Commission filing fees relating to the Shares within the time required by Rule 456(b)(1)(i) under the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Securities Act (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) under the Securities Act either in a post-effective amendment to the Registration Statement or on the cover page of the Prospectus).
(2) The Original Registration Statement became effective upon filing under Rule 462(e) under the Securities Act on February 12, 2020. 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 by the Commission, and any request on the part of the Commission for additional information has been complied with.
(3) Any offer that is a written communication relating to the Shares made prior to the initial filing date of the Registration Statement by the Company this Agreement (which date is set forth in Schedule I hereto). Any such amendment or any person acting on its behalf (within the meaning, for this paragraph only, of Rule 163(c) under the Securities Act) has been supplement was filed with the Commission in accordance with the exemption provided by Rule 163 under the Securities Act and otherwise complied with the requirements of Rule 163 under the Securities Act, including without limitation the legending requirement.
(4) any such amendment has become effective. The Company has delivered or made available on XXXXX to each of the Sales Agent and the Forward Seller one complete copy of the Registration Statement and a copy of each consent and certificate of experts filed as a part thereof, and conformed copies of the Registration Statement (without exhibits) and the Prospectus, as amended or supplemented, in such quantities and at such places as the Sales Agent or the Forward Seller, as applicable, has reasonably requested. The Prospectus delivered to the Sales Agent and the Forward Seller for use in connection with the offering of Shares will, at the time of such delivery, be identical to the electronically transmitted copies thereof filed will file with the Commission pursuant to XXXXX, except a prospectus supplement (the "Prospectus Supplement") relating to the extent permitted by Regulation S-T.
(5) At the respective times the Registration Statement and each amendment thereto became effective, at each deemed effective date with respect to the Sales Agent, the Forward Seller or the Forward Purchaser Bonds pursuant to Rule 430B(f)(2) 424 and/or Rule 434 under the Securities Act. Copies of such registration statement and prospectus, as the case may be, the Registration Statement complied and will comply in all material respects with the requirements of the Securities Act, and did not 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. The preceding sentence does not apply to statements in or omissions from the Registration Statement or any amendment thereto in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, expressly for inclusion in any of the aforementioned documents.
(6) Neither the Prospectus nor any amendments or supplements thereto, at the time the Prospectus or any such amendment or supplement was issued, as and all documents incorporated by reference therein which were filed with the Commission on or prior to the date of this Agreement have been delivered to you and copies of the date hereof, at each Representation Date, at each Applicable Time, and at each Settlement Date, as Prospectus Supplement will be delivered to you promptly after it is filed with the case may be, included or will include an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleadingCommission. The preceding sentence does not apply to statements in or omissions from the ProspectusSuch registration statement, as amended or supplemented, in reliance upon and in conformity with written information relating prior to the Sales Agentdate of this Agreement, the Forward Seller or the Forward Purchaser furnished and such prospectus, as amended and supplemented prior to the Company in writing date of this Agreement and as supplemented by the Sales AgentProspectus Supplement, are hereinafter called the Forward Seller or "Registration Statement" and the Forward Purchaser"Prospectus", as applicable, expressly for inclusion in any of the aforementioned documents.
(7) Each document incorporated by respectively. Any reference in herein to the Registration Statement or the Prospectus heretofore filed, when it was shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 which were filed (or, if any amendment with respect to any such document was filed, when such amendment was filed), conformed in all material respects with under the requirements of the Securities Exchange Act and the rules and regulations thereunder, and any further documents so filed and incorporated after the date of this Agreement will, when they are filed, conform in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder; no such document when it was filed (or, if an amendment with respect to any such document was filed, when such amendment was filed), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and no such document, when it is filed, will contain an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(8) Each Issuer Free Writing Prospectus (as defined herein), on its issue date, as of each Applicable Time, and as of each Settlement Date, or until any earlier date that the issuer notified or notifies the Sales Agent or the Forward Seller as described in Section 8(d) hereof, 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 incorporated document deemed to be a part thereof that has not been superseded or modified. The foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with written information furnished to the Company by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, specifically for use therein.
(9) This Agreement has been duly authorized, executed and delivered by the Company and this Agreement constitutes a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and by general principles of equity (the “Exceptions”). The Master Forward Confirmation will have been, as of its date, duly authorized, executed and delivered by the Company and when executed and delivered by the Forward Purchaser, such Master Forward Confirmation will constitute a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by the Exceptions.
(10) The Company and its “Subsidiaries” (as defined in Section 6(a)(13) hereof) have been duly incorporated or organized and are validly existing as corporations or organizations in good standing under the laws of the states or other jurisdictions in which they are incorporated or organized, with full power and authority (corporate and other) to own, lease and operate their properties and conduct their businesses as described in the Prospectus and, with respect to the Company, to execute and deliver, and perform the Company’s obligations under, this Agreement; the Company and its Subsidiaries are duly qualified to do business as foreign corporations or organizations in good standing in each state or other jurisdiction in which their ownership or leasing of property or conduct of business legally requires such qualification, except where the failure to be so qualified, individually or in the aggregate, would not have a Material Adverse Effect. The term “Material Adverse Effect” as used herein means any material adverse effect on the condition (financial or other), net worth, business, affairs, management, prospects, results of operations or cash flow of the Company and its Subsidiaries, taken as a whole.1
Appears in 2 contracts
Samples: Underwriting Agreement (Northern States Power Co /Mn/), Underwriting Agreement (Northern States Power Co /Mn/)
Representations and Warranties by the Company. The Company represents and warrants to the Sales Agent, the Forward Seller and the Forward Purchaser as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 8(o) of this Agreement, as of that date on which any Placement Notice is given hereunder, as of the time of each sale of any Issuance Shares or Forward Hedge Shares pursuant to this Agreement (the “Applicable Time”) and as of each Settlement Date (as defined below)to, and agrees with the Sales Agentwith, the Forward Seller and the Forward Purchaser, as followseach Underwriter that:
(1a) The Company satisfies all of meets the requirements of the Securities Act for use of Form S-3 under the Securities Act of 1933, as amended (the "Act") and has filed with the Securities and Exchange Commission (the "Commission") a registration statement on such Form, including a prospectus, for the registration under the Act of the Notes, First Mortgage Bonds and Debt Securities, which registration statement has become effective. Such registration statement and prospectus may have been amended or supplemented from time to time prior to the date of this Agreement (which date is set forth in Schedule I hereto). Any such amendment or supplement was filed with the Commission and any such amendment has become effective. The Company will file with the Commission a prospectus supplement (the "Prospectus Supplement") relating to the Notes pursuant to Rule 424 and/or Rule 434 under the Act. Copies of such registration statement and prospectus, any such amendment or supplement and all documents incorporated by reference therein which were filed with the Commission on or prior to the date of this Agreement have been delivered to you and copies of the Prospectus Supplement will be delivered to you promptly after it is filed with the Commission. Such registration statement, as amended prior to the date of this Agreement, and such prospectus, as amended and supplemented prior to the date of this Agreement and as supplemented by the Prospectus Supplement, are hereinafter called the "Registration Statement" and the "Prospectus", respectively. Any reference herein to the Registration Statement or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 which were filed under the Securities Exchange Act of 1934, as amended (the "Exchange Act") on or before the date of this Agreement and, if the Company files any document pursuant to the Exchange Act after the date of this Agreement and prior to the termination of the offering of the Shares contemplated hereby Notes by the Underwriters, which documents are deemed to be incorporated by reference into the Prospectus, the term "Prospectus" shall refer also to said prospectus as supplemented by the documents so filed from and after the offering and sale of Shares contemplated hereby complies time said documents are filed with the requirements of Rule 415 under the Securities ActCommission. At the time There are no contracts or documents of the initial filing Company or any of its subsidiaries that are required to be filed as exhibits to the Registration Statement or any documents incorporated by reference therein by the Act, the Exchange Act or the rules and regulations thereunder which have not been so filed.
(b) No order preventing or suspending the use of the Prospectus or the Registration Statement has been issued by the Commission and the Registration Statement, at the time date of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective amendmentthis Agreement, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Securities Act) made any offer relating to the Shares in reliance on the exemption of Rule 163 under the Securities Act and at the date hereof, the Company was and is a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act, including not having been and not being an “ineligible issuer,” as defined in Rule 405 under the Securities Act. The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 under the Securities Act, 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.” The Company has not received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting to the use of the automatic shelf registration statement form. The Company has paid or will pay the required Commission filing fees relating to the Shares within the time required by Rule 456(b)(1)(i) under the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Securities Act (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) under the Securities Act either in a post-effective amendment to the Registration Statement or on the cover page of the Prospectus).
(2) The Original Registration Statement became effective upon filing under Rule 462(e) under the Securities Act on February 12, 2020. 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 by the Commission, and any request on the part of the Commission for additional information has been complied with.
(3) Any offer that is a written communication relating to the Shares made prior to the initial filing of the Registration Statement by the Company or any person acting on its behalf (within the meaning, for this paragraph only, of Rule 163(c) under the Securities Act) has been filed with the Commission in accordance with the exemption provided by Rule 163 under the Securities Act and otherwise complied with the requirements of Rule 163 under the Securities Act, including without limitation the legending requirement.
(4) The Company has delivered or made available on XXXXX to each of the Sales Agent and the Forward Seller one complete copy of the Registration Statement and a copy of each consent and certificate of experts filed as a part thereof, and conformed copies of the Registration Statement (without exhibits) and the Prospectus, as amended or supplemented, in such quantities and at such places as the Sales Agent or the Forward Seller, as applicable, has reasonably requested. The Prospectus delivered to the Sales Agent and the Forward Seller for use in connection with the offering of Shares will, at the time of such delivery, be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(5) At the respective times the Registration Statement and each amendment thereto became effective, at each deemed effective date with respect to the Sales Agent, the Forward Seller or the Forward Purchaser pursuant to Rule 430B(f)(2) under the Securities Act, as the case may be, the Registration Statement complied and will comply in all material respects with the requirements of the Securities Act, the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act") and the respective rules and regulations of the Commission thereunder and did not and will not contain 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. The preceding sentence does not apply to statements in or omissions from the Registration Statement or any amendment thereto in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, expressly for inclusion in any of the aforementioned documents.
(6) Neither the Prospectus nor any amendments or supplements thereto, at the time the Prospectus or any such amendment or supplement was issued, as of the date hereof, at each Representation Date, at each Applicable Time, and at each Settlement Date, as the case may be, included or will include an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from the Prospectus, as amended or supplemented, in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, expressly for inclusion in any of the aforementioned documents.
(7) Each document incorporated by reference in the Registration Statement or the Prospectus heretofore filed, when it was filed (or, if any amendment with respect to any such document was filed, when such amendment was filed), conformed in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder, and any further documents so filed and incorporated after the date of this Agreement will, when they are filed, conform in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder; no such document when it was filed (or, if an amendment with respect to any such document was filed, when such amendment was filed), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and, at the time the Prospectus Supplement is filed with the Commission and no such documentat the Closing Date (as hereinafter defined), when it is filed, the Prospectus will comply in all material respects with the Act and the rules and regulations of the Commission thereunder and will not contain an any untrue statement of a material fact or will omit to state a any material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(8) Each Issuer Free Writing Prospectus (as defined herein), on its issue date, as of each Applicable Time, and as of each Settlement Date, or until any earlier date ; provided that the issuer notified Company makes no representations or notifies warranties as to (A) that part of the Sales Agent Registration Statement which shall constitute the Statements of Eligibility (Forms T-1) under the Trust Indenture Act of the Senior Note Trustee and the trustees for the First Mortgage Bonds and Debt Securities or the Forward Seller as described in Section 8(d(B) hereof, did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in or omitted from the Registration Statement or the Prospectus in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of any Underwriter through the Representatives specifically for use in the Registration Statement or Prospectus.
(c) The documents incorporated by reference in the Prospectus, including when they were filed with the Commission, conformed in all material respects to the requirements of the Exchange Act and the rules and regulations of the Commission thereunder, and any documents so filed and incorporated document deemed by reference subsequent to the date of this Agreement will, when they are filed with the Commission, conform in all material respects to the requirements of the Exchange Act, and the rules and regulations of the Commission thereunder; and none of such documents include or will include any untrue statement of a material fact or omit or will omit to state any 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.
(d) PricewaterhouseCoopers LLP which audited certain of the financial statements incorporated by reference in the Registration Statement, is an independent public accountant as required by the Act and the rules and regulations of the Commission thereunder.
(e) The financial statements of the Company and its consolidated subsidiaries filed as a part thereof that of or incorporated by reference in the Registration Statement or Prospectus fairly present the financial position of the Company and its consolidated subsidiaries as of the dates indicated and the results of their operations and changes in financial position for the periods specified, and have been prepared in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods involved, except as disclosed in the Prospectus Supplement.
(f) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Minnesota with due corporate authority to carry on the business in which it is engaged and to own and operate the properties used by it in such business, as described in the Prospectus; the Company is qualified to do business as a foreign corporation and is in good standing under the laws of the States of North Dakota and South Dakota; and the Company is not required by the nature of its business to be licensed or qualified as a foreign corporation in any other state or jurisdiction; and, except as set forth in the Prospectus Supplement, the Company has all material licenses and approvals required at the date hereof to conduct its business.
(g) Each subsidiary of the Company named in Exhibit 21.01 to the Company's most recent Annual Report on Form 10-K ("Significant Subsidiary") has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation and is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which it owns or leases substantial properties or in which the conduct of its business requires such qualification; all of the issued and outstanding capital stock of each such subsidiary has been duly authorized and validly issued and is fully paid and non-assessable; and the capital stock of each such subsidiary owned by the Company, directly or through subsidiaries, is owned free and clear of any pledge, lien, encumbrance, claim or equity.
(h) Neither the Company nor any of its subsidiaries has sustained since the date of the latest audited financial statements included or incorporated by reference in the Prospectus any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus Supplement; and, since the respective dates as of which information is given in the Registration Statement and the Prospectus Supplement, neither the Company nor any of its subsidiaries has incurred any liabilities or obligations, direct or contingent, or entered into any transactions, not in the ordinary course of business, which are material to the Company and its subsidiaries, and there has not been superseded any material change in the capital stock or modified. The foregoing sentence does not apply to statements long-term debt of the Company or any of its subsidiaries or any material adverse change, or any development involving a prospective material adverse change, in or omissions from affecting the general affairs, management, financial position, stockholders' equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Prospectus Supplement.
(i) Neither the execution and delivery of this Agreement and the Senior Note Indenture, the issuance and delivery of the Notes and the First Mortgage Bonds, the consummation of the transactions herein contemplated, the fulfillment of the terms hereof, nor compliance with the terms and provisions of this Agreement, the Notes and the Senior Note Indenture will conflict with, or result in the breach of, any Issuer Free Writing Prospectus based upon and of the terms, provisions or conditions of the Restated Articles of Incorporation, as amended, or by-laws of the Company, or of any contract, agreement or instrument to which the Company is a party or in conformity with written information furnished which the Company has a beneficial interest or by which the Company is bound or of any order, rule or regulation applicable to the Company by of any court or of any federal or state regulatory body or administrative agency or other governmental body having jurisdiction over the Sales Agent, the Forward Seller Company or the Forward Purchaser, as applicable, specifically for use thereinover its properties.
(9j) This Agreement has The Notes have been duly authorizedauthorized for issuance and sale pursuant to this Agreement and, when executed and authenticated in accordance with the Senior Note Indenture and delivered and paid for as provided herein, will be duly issued and will constitute valid and binding obligations of the Company enforceable in accordance with their terms, except as limited by bankruptcy, insolvency and other laws affecting enforcement of creditors' rights, and will be entitled to the benefits of the Senior Note Indenture which will be substantially in the form heretofore delivered to you. The First Mortgage Bonds which are delivered to the Senior Note Trustee as security for the payment of principal and interest on the Notes, have been duly authorized for issuance and sale pursuant to this Agreement and the Senior Note Indenture and, when executed and authenticated in accordance with the First Mortgage Indenture and delivered to the Senior Note Trustee, will be duly issued and will constitute valid and binding obligations of the Company enforceable in accordance with their terms, except as limited by bankruptcy, insolvency and other laws affecting enforcement of creditors' rights, and will be entitled to the benefits of the First Mortgage Indenture which will be substantially in the form heretofore delivered to you.
(k) The Senior Note Indenture, and, if prior to the Release Date, the First Mortgage Indenture, have each been duly and validly authorized by the Company and, when duly executed and delivered by the Company Company, assuming due authorization, execution and this Agreement constitutes delivery thereof by the Senior Note Trustee and the trustee for the First Mortgage Bonds, respectively, will each constitute a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability enforcement thereof may be limited by bankruptcy, insolvencyinsolvency or other laws affecting enforcement of creditors' rights.
(l) The Minnesota Public Utilities Commission has issued its order approving capital structure which order authorizes the issuance of the Notes and the First Mortgage Bonds, fraudulent conveyanceand no other approval of any regulatory public body, reorganizationstate or federal, moratorium is, or will be at the Closing Date (as hereinafter defined), necessary in connection with the issuance and sale of the Notes and the First Mortgage Bonds pursuant to this Agreement, other than approvals that may be required under state securities laws.
(m) The Company has good and valid title to all real and fixed property and leasehold rights described or enumerated in the First Mortgage Indenture (except such properties as have been released from the lien thereof in accordance with the terms thereof), subject only to taxes and assessments not yet delinquent; the lien of the First Mortgage Indenture; as to parts of the Company's property, certain easements, conditions, restrictions, leases, and similar laws relating to or affecting creditors’ rights generally and by general principles encumbrances which do not affect the Company's use of equity (such property in the “Exceptions”). The Master Forward Confirmation will have been, as usual course of its datebusiness, duly authorizedand certain minor defects in titles which are not material, executed and delivered defects in titles to certain properties which are not essential to the Company's business; and mechanics' lien claims being contested or not of record or for the satisfaction or discharge of which adequate provision has been made by the Company pursuant to the First Mortgage Indenture; and when executed any real property and delivered buildings held under lease by the Forward PurchaserCompany is held by it under valid, subsisting and enforceable leases with such Master Forward Confirmation will constitute exceptions as are not material and do not interfere with the use made and proposed to be made of such property and buildings by the Company.
(n) Other than as set forth or contemplated in the Prospectus as of the date hereof, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a valid and legally binding obligation party or of which any property of the Company enforceable against or any of its subsidiaries is the subject which, if determined adversely to the Company in accordance with or any of its termssubsidiaries, except as enforceability may be limited by the Exceptions.
(10) The Company and its “Subsidiaries” (as defined in Section 6(a)(13) hereof) have been duly incorporated would individually or organized and are validly existing as corporations or organizations in good standing under the laws of the states or other jurisdictions in which they are incorporated or organized, with full power and authority (corporate and other) to own, lease and operate their properties and conduct their businesses as described in the Prospectus andaggregate have a material adverse effect on the consolidated financial position, with respect to the Company, to execute and deliver, and perform the Company’s obligations under, this Agreement; stockholders' equity or results of operations of the Company and its Subsidiaries subsidiaries; and, to the best of the Company's knowledge, no such proceedings are duly qualified threatened or contemplated by governmental authorities or threatened by others.
(o) The Company is not an "investment company" or an entity "controlled" by an "investment company," as such terms are defined in the Investment Company Act of 1940, as amended.
(p) Except as set forth in the Prospectus Supplement, the Company and its subsidiaries (A) are in compliance with any and all applicable federal, state and local laws and regulations relating to do business as foreign corporations the protection of human health and safety, the environment or organizations in good standing in each state hazardous or toxic substances or wastes, pollutants or contaminants ("Environmental Laws"), (B) have received all permits, licenses or other jurisdiction approvals required of them under applicable Environmental Laws to conduct its respective business and (C) are in which their ownership compliance with all terms and conditions of any such permits, licenses or leasing of property or conduct of business legally requires such qualificationapprovals, except where the such noncompliance with Environmental Laws, failure to be so qualifiedreceive required permits, individually licenses or other approvals or failure to comply with the terms and conditions of such permits, licenses or approvals would not, singly or in the aggregate, would not have a Material Adverse Effect. The term “Material Adverse Effect” as used herein means any material adverse effect on the condition (financial or other), net worth, business, affairs, management, prospects, results of operations or cash flow of the Company and its Subsidiariessubsidiaries, taken as a whole.
Appears in 1 contract
Samples: Underwriting Agreement (Northern States Power Co /Mn/)
Representations and Warranties by the Company. The Company hereby represents and warrants to Zindart as follows:
(i) The execution and delivery by IBI of this December 2001 Amendment and the issuance and delivery of the Converted Payables Common Stock and the Converted Obligations Common Stock have been duly authorized by all requisite corporate action, except that the amendment to IBI's articles necessary to authorize the increase in its common stock has not been approved by all necessary corporate action and such amendment has not been filed with the Secretary of State of the State of California. This December 2001 Amendment has been duly executed and delivered by IBI and constitutes the legal, valid and binding obligation of IBI, enforceable in accordance with its terms.
(ii) The Converted Payables Common Stock and the Converted Obligations Common Stock, when issued in accordance with the terms of this Agreement, will be free and clear of all liens, charges, restrictions, claims and encumbrances impoaws vy oe through IBT and when so issued, will be duly authorized, validly issued, fully-paid and non-assessable shares of IBI common stock.
(iii) Just prior to the "First Closing" as contemplated under, the Equity Financing, IBI will have no more than 8,475,000 shares of Common Stock calculated on a fully diluted basis, assuming the exercise of all options, warrants and other rights exercisable to purchase shares of Common Stock, not counting options to purchase an aggregate of 600,000 shares which are to be issued in connection with the Equity Financing to a director and an officer and the shares to be issued to Zindart hereunder. At the "First Closing" of the Equity Financing, Investor is to acquire 396,825 shares of IBI's Preferred Stock and at the "Second Closing," Investor is to acquire 1,269,841 shares of Preferred Stock, in each case each share of Preferred Stock is convertible into two (2) share of Common Stock. As part of the Equity Financing, Investor also has options to acquire up to 2,049,804 shares of Preferred Stock.
(iv) The Company represents and warrants to the Sales Agent, the Forward Seller that a majority of its issued and outstanding shares of Common Stock and the Forward Purchaser as issued and outstanding shares of the date hereof and as of each Representation Date (as defined below) on which a certificate is required Preferred Stock have all agreed to be delivered pursuant to Section 8(o) of this Agreement, as of that date on which any Placement Notice is given hereunder, as of the time of each sale of any Issuance Shares or Forward Hedge Shares pursuant to this Agreement (the “Applicable Time”) and as of each Settlement Date (as defined below), and agrees with the Sales Agent, the Forward Seller and the Forward Purchaser, as follows:
(1) The Company satisfies all of the requirements of the Securities Act for use of Form S-3 for the offering of the Shares contemplated hereby and the offering and sale of Shares contemplated hereby complies with the requirements of Rule 415 under the Securities Act. At the time of the initial filing of the Registration Statement, at the time of the most recent amendment thereto 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), at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Securities Act) made any offer relating to the Shares vote in reliance on the exemption of Rule 163 under the Securities Act and at the date hereof, the Company was and is a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act, including not having been and not being an “ineligible issuer,” as defined in Rule 405 under the Securities Act. The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 under the Securities Act, 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.” The Company has not received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting to the use of the automatic shelf registration statement form. The Company has paid or will pay the required Commission filing fees relating to the Shares within the time required by Rule 456(b)(1)(i) under the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Securities Act (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) under the Securities Act either in a post-effective amendment to the Registration Statement or on the cover page of the Prospectus).
(2) The Original Registration Statement became effective upon filing under Rule 462(e) under the Securities Act on February 12, 2020. 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 favor of the Company, are contemplated by the Commission, 's Amended and any request on the part Restated Articles of the Commission for additional information has been complied with.
(3) Any offer that Incorporation which is a written communication relating to the Shares made prior to the initial filing of the Registration Statement by the Company or any person acting on its behalf (within the meaning, for this paragraph only, of Rule 163(c) under the Securities Act) has been filed with the Commission in accordance with the exemption provided by Rule 163 under the Securities Act and otherwise complied with the requirements of Rule 163 under the Securities Act, including without limitation the legending requirement.
(4) The Company has delivered or made available on XXXXX to each of the Sales Agent and the Forward Seller one complete copy of the Registration Statement and a copy of each consent and certificate of experts filed as a part thereof, and conformed copies of the Registration Statement (without exhibits) and the Prospectus, as amended or supplemented, in such quantities and at such places as the Sales Agent or the Forward Seller, as applicable, has reasonably requested. The Prospectus delivered to the Sales Agent and the Forward Seller for use in connection with the offering of Shares will, at the time of such delivery, be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(5) At the respective times the Registration Statement and each amendment thereto became effective, at each deemed effective date with respect to the Sales Agent, the Forward Seller or the Forward Purchaser pursuant to Rule 430B(f)(2) under the Securities Act, as the case may be, the Registration Statement complied and will comply in all material respects with the requirements of the Securities Act, and did not 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. The preceding sentence does not apply to statements in or omissions from the Registration Statement or any amendment thereto in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, expressly for inclusion in any of the aforementioned documents.
(6) Neither the Prospectus nor any amendments or supplements thereto, at the time the Prospectus or any such amendment or supplement was issued, as of the date hereof, at each Representation Date, at each Applicable Time, and at each Settlement Date, as the case may be, included or will include an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make increase its authorized shares of Common Stock to permit the statements therein, conversions contemplated in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from the Prospectus, as amended or supplemented, in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, expressly for inclusion in any of the aforementioned documentsAgreement.
(7) Each document incorporated by reference in the Registration Statement or the Prospectus heretofore filed, when it was filed (or, if any amendment with respect to any such document was filed, when such amendment was filed), conformed in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder, and any further documents so filed and incorporated after the date of this Agreement will, when they are filed, conform in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder; no such document when it was filed (or, if an amendment with respect to any such document was filed, when such amendment was filed), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and no such document, when it is filed, will contain an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(8) Each Issuer Free Writing Prospectus (as defined herein), on its issue date, as of each Applicable Time, and as of each Settlement Date, or until any earlier date that the issuer notified or notifies the Sales Agent or the Forward Seller as described in Section 8(d) hereof, 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 incorporated document deemed to be a part thereof that has not been superseded or modified. The foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with written information furnished to the Company by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, specifically for use therein.
(9) This Agreement has been duly authorized, executed and delivered by the Company and this Agreement constitutes a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and by general principles of equity (the “Exceptions”). The Master Forward Confirmation will have been, as of its date, duly authorized, executed and delivered by the Company and when executed and delivered by the Forward Purchaser, such Master Forward Confirmation will constitute a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by the Exceptions.
(10) The Company and its “Subsidiaries” (as defined in Section 6(a)(13) hereof) have been duly incorporated or organized and are validly existing as corporations or organizations in good standing under the laws of the states or other jurisdictions in which they are incorporated or organized, with full power and authority (corporate and other) to own, lease and operate their properties and conduct their businesses as described in the Prospectus and, with respect to the Company, to execute and deliver, and perform the Company’s obligations under, this Agreement; the Company and its Subsidiaries are duly qualified to do business as foreign corporations or organizations in good standing in each state or other jurisdiction in which their ownership or leasing of property or conduct of business legally requires such qualification, except where the failure to be so qualified, individually or in the aggregate, would not have a Material Adverse Effect. The term “Material Adverse Effect” as used herein means any material adverse effect on the condition (financial or other), net worth, business, affairs, management, prospects, results of operations or cash flow of the Company and its Subsidiaries, taken as a whole.
Appears in 1 contract
Representations and Warranties by the Company. The Company represents and warrants to the Sales Agent, the Forward Seller and the Forward Purchaser as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 8(o) of this Agreement, as of that date on which any Placement Notice is given hereunder, as of the time of each sale of any Issuance Shares or Forward Hedge Shares pursuant to this Agreement (the “Applicable Time”) and as of each Settlement Date (as defined below)to, and agrees with the Sales Agentwith, the Forward Seller and the Forward Purchaser, as followseach Underwriter that:
(1a) The Company satisfies all of meets the requirements of the Securities Act for use of Form S-3 under the Securities Act of 1933, as amended (the "Act") and has filed with the Securities and Exchange Commission (the "Commission") a registration statement on such Form, including a prospectus, for the registration under the Act of the Bonds, Senior Notes and Debt Securities, which registration statement has become effective. Such registration statement and prospectus may have been amended or supplemented from time to time prior to the date of this Agreement (which date is set forth in Schedule I hereto). Any such amendment or supplement was filed with the Commission and any such amendment has become effective. The Company will file with the Commission a prospectus supplement (the "Prospectus Supplement") relating to the Bonds pursuant to Rule 424 and/or Rule 434 under the Act. Copies of such registration statement and prospectus, any such amendment or supplement and all documents incorporated by reference therein which were filed with the Commission on or prior to the date of this Agreement have been delivered to you and copies of the Prospectus Supplement will be delivered to you promptly after it is filed with the Commission. Such registration statement, as amended prior to the date of this Agreement, and such prospectus, as amended and supplemented prior to the date of this Agreement and as supplemented by the Prospectus Supplement, are hereinafter called the "Registration Statement" and the "Prospectus", respectively. Any reference herein to the Registration Statement or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 which were filed under the Securities Exchange Act of 1934, as amended (the "Exchange Act") on or before the date of this Agreement and, if the Company files any document pursuant to the Exchange Act after the date of this Agreement and prior to the termination of the offering of the Shares contemplated hereby Bonds by the Underwriters, which documents are deemed to be incorporated by reference into the Prospectus, the term "Prospectus" shall refer also to said prospectus as supplemented by the documents so filed from and after the offering and sale of Shares contemplated hereby complies time said documents are filed with the requirements of Rule 415 under the Securities ActCommission. At the time There are no contracts or documents of the initial filing Company or any of its subsidiaries that are required to be filed as exhibits to the Registration Statement or any documents incorporated by reference therein by the Act, the Exchange Act or the rules and regulations thereunder which have not been so filed.
(b) No order preventing or suspending the use of the Prospectus or the Registration Statement has been issued by the Commission and the Registration Statement, at the time date of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective amendmentthis Agreement, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Securities Act) made any offer relating to the Shares in reliance on the exemption of Rule 163 under the Securities Act and at the date hereof, the Company was and is a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act, including not having been and not being an “ineligible issuer,” as defined in Rule 405 under the Securities Act. The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 under the Securities Act, 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.” The Company has not received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting to the use of the automatic shelf registration statement form. The Company has paid or will pay the required Commission filing fees relating to the Shares within the time required by Rule 456(b)(1)(i) under the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Securities Act (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) under the Securities Act either in a post-effective amendment to the Registration Statement or on the cover page of the Prospectus).
(2) The Original Registration Statement became effective upon filing under Rule 462(e) under the Securities Act on February 12, 2020. 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 by the Commission, and any request on the part of the Commission for additional information has been complied with.
(3) Any offer that is a written communication relating to the Shares made prior to the initial filing of the Registration Statement by the Company or any person acting on its behalf (within the meaning, for this paragraph only, of Rule 163(c) under the Securities Act) has been filed with the Commission in accordance with the exemption provided by Rule 163 under the Securities Act and otherwise complied with the requirements of Rule 163 under the Securities Act, including without limitation the legending requirement.
(4) The Company has delivered or made available on XXXXX to each of the Sales Agent and the Forward Seller one complete copy of the Registration Statement and a copy of each consent and certificate of experts filed as a part thereof, and conformed copies of the Registration Statement (without exhibits) and the Prospectus, as amended or supplemented, in such quantities and at such places as the Sales Agent or the Forward Seller, as applicable, has reasonably requested. The Prospectus delivered to the Sales Agent and the Forward Seller for use in connection with the offering of Shares will, at the time of such delivery, be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(5) At the respective times the Registration Statement and each amendment thereto became effective, at each deemed effective date with respect to the Sales Agent, the Forward Seller or the Forward Purchaser pursuant to Rule 430B(f)(2) under the Securities Act, as the case may be, the Registration Statement complied and will comply in all material respects with the requirements of the Securities Act, the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act") and the respective rules and regulations of the Commission thereunder and did not and will not contain 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. The preceding sentence does not apply to statements in or omissions from the Registration Statement or any amendment thereto in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, expressly for inclusion in any of the aforementioned documents.
(6) Neither the Prospectus nor any amendments or supplements thereto, at the time the Prospectus or any such amendment or supplement was issued, as of the date hereof, at each Representation Date, at each Applicable Time, and at each Settlement Date, as the case may be, included or will include an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from the Prospectus, as amended or supplemented, in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, expressly for inclusion in any of the aforementioned documents.
(7) Each document incorporated by reference in the Registration Statement or the Prospectus heretofore filed, when it was filed (or, if any amendment with respect to any such document was filed, when such amendment was filed), conformed in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder, and any further documents so filed and incorporated after the date of this Agreement will, when they are filed, conform in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder; no such document when it was filed (or, if an amendment with respect to any such document was filed, when such amendment was filed), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and, at the time the Prospectus Supplement is filed with the Commission and no such documentat the Closing Date (as hereinafter defined), when it is filed, the Prospectus will comply in all material respects with the Act and the rules and regulations of the Commission thereunder and will not contain an any untrue statement of a material fact or will omit to state a any material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(8) Each Issuer Free Writing Prospectus (as defined herein), on its issue date, as of each Applicable Time, and as of each Settlement Date, or until any earlier date ; provided that the issuer notified Company makes no representations or notifies warranties as to (A) that part of the Sales Agent Registration Statement which shall constitute the Statements of Eligibility (Forms T-1) under the Trust Indenture Act of the Trustee and the trustees for the Senior Notes and Debt Securities or the Forward Seller as described in Section 8(d(B) hereof, did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in or omitted from the Registration Statement or the Prospectus in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of any Underwriter through the Representatives specifically for use in the Registration Statement or Prospectus.
(c) The documents incorporated by reference in the Prospectus, including when they were filed with the Commission, conformed in all material respects to the requirements of the Exchange Act and the rules and regulations of the Commission thereunder, and any documents so filed and incorporated document deemed by reference subsequent to the date of this Agreement will, when they are filed with the Commission, conform in all material respects to the requirements of the Exchange Act, and the rules and regulations of the Commission thereunder; and none of such documents include or will include any untrue statement of a material fact or omit or will omit to state any 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.
(d) PricewaterhouseCoopers LLP which audited certain of the financial statements incorporated by reference in the Registration Statement, is an independent public accountant as required by the Act and the rules and regulations of the Commission thereunder.
(e) The financial statements of the Company and its consolidated subsidiaries filed as a part thereof that of or incorporated by reference in the Registration Statement or Prospectus fairly present the financial position of the Company and its consolidated subsidiaries as of the dates indicated and the results of their operations and changes in financial position for the periods specified, and have been prepared in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods involved, except as disclosed in the Prospectus Supplement.
(f) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Minnesota with due corporate authority to carry on the business in which it is engaged and to own and operate the properties used by it in such business, as described in the Prospectus; the Company is qualified to do business as a foreign corporation and is in good standing under the laws of the States of North Dakota and South Dakota; and the Company is not required by the nature of its business to be licensed or qualified as a foreign corporation in any other state or jurisdiction; and, except as set forth in the Prospectus Supplement, the Company has all material licenses and approvals required at the date hereof to conduct its business.
(g) Each subsidiary of the Company named in Exhibit 21.01 to the Company's most recent Annual Report on Form 10-K ("Significant Subsidiary") has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation and is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which it owns or leases substantial properties or in which the conduct of its business requires such qualification; all of the issued and outstanding capital stock of each such subsidiary has been duly authorized and validly issued and is fully paid and non-assessable; and the capital stock of each such subsidiary owned by the Company, directly or through subsidiaries, is owned free and clear of any pledge, lien, encumbrance, claim or equity.
(h) Neither the Company nor any of its subsidiaries has sustained since the date of the latest audited financial statements included or incorporated by reference in the Prospectus any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus Supplement; and, since the respective dates as of which information is given in the Registration Statement and the Prospectus Supplement, neither the Company nor any of its subsidiaries has incurred any liabilities or obligations, direct or contingent, or entered into any transactions, not in the ordinary course of business, which are material to the Company and its subsidiaries, and there has not been superseded any material change in the capital stock or modified. The foregoing sentence does not apply to statements long-term debt of the Company or any of its subsidiaries or any material adverse change, or any development involving a prospective material adverse change, in or omissions from affecting the general affairs, management, financial position, stockholders' equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Prospectus Supplement.
(i) Neither the execution and delivery of this Agreement and the Indenture, the issuance and delivery of the Bonds, the consummation of the transactions herein contemplated, the fulfillment of the terms hereof, nor compliance with the terms and provisions of this Agreement, the Bonds and the Indenture will conflict with, or result in the breach of, any Issuer Free Writing Prospectus based upon and of the terms, provisions or conditions of the Restated Articles of Incorporation, as amended, or by-laws of the Company, or of any contract, agreement or instrument to which the Company is a party or in conformity with written information furnished which the Company has a beneficial interest or by which the Company is bound or of any order, rule or regulation applicable to the Company by of any court or of any federal or state regulatory body or administrative agency or other governmental body having jurisdiction over the Sales Agent, the Forward Seller Company or the Forward Purchaser, as applicable, specifically for use thereinover its properties.
(9j) This The Bonds have been duly authorized for issuance and sale pursuant to this Agreement and, when executed and authenticated in accordance with the Indenture and delivered and paid for as provided herein, will be duly issued and will constitute valid and binding obligations of the Company enforceable in accordance with their terms, except as limited by bankruptcy, insolvency and other laws affecting enforcement of creditors' rights, and will be entitled to the benefits of the Indenture which will be substantially in the form heretofore delivered to you.
(k) The Indenture has been duly authorizedand validly authorized by the Company and, when duly executed and delivered by the Company Company, assuming due authorization, execution and this Agreement constitutes delivery thereof by the Trustee, will constitute a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability enforcement thereof may be limited by bankruptcy, insolvencyinsolvency or other laws affecting enforcement of creditors' rights.
(l) The Minnesota Public Utilities Commission has issued its order approving capital structure which order authorizes the issuance of the Bonds, fraudulent conveyanceand no other approval of any regulatory public body, reorganizationstate or federal, moratorium is, or will be at the Closing Date (as hereinafter defined), necessary in connection with the issuance and sale of the Bonds pursuant to this Agreement, other than approvals that may be required under state securities laws.
(m) The Company has good and valid title to all real and fixed property and leasehold rights described or enumerated in the Indenture (except such properties as have been released from the lien thereof in accordance with the terms thereof), subject only to taxes and assessments not yet delinquent; the lien of the Indenture; as to parts of the Company's property, certain easements, conditions, restrictions, leases, and similar laws relating to or affecting creditors’ rights generally and by general principles encumbrances which do not affect the Company's use of equity (such property in the “Exceptions”). The Master Forward Confirmation will have been, as usual course of its datebusiness, duly authorizedand certain minor defects in titles which are not material, executed and delivered defects in titles to certain properties which are not essential to the Company's business; and mechanics' lien claims being contested or not of record or for the satisfaction or discharge of which adequate provision has been made by the Company pursuant to the Indenture; and when executed any real property and delivered buildings held under lease by the Forward PurchaserCompany is held by it under valid, subsisting and enforceable leases with such Master Forward Confirmation will constitute exceptions as are not material and do not interfere with the use made and proposed to be made of such property and buildings by the Company.
(n) Other than as set forth or contemplated in the Prospectus as of the date hereof, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a valid and legally binding obligation party or of which any property of the Company enforceable against or any of its subsidiaries is the subject which, if determined adversely to the Company in accordance with or any of its termssubsidiaries, except as enforceability may be limited by the Exceptions.
(10) The Company and its “Subsidiaries” (as defined in Section 6(a)(13) hereof) have been duly incorporated would individually or organized and are validly existing as corporations or organizations in good standing under the laws of the states or other jurisdictions in which they are incorporated or organized, with full power and authority (corporate and other) to own, lease and operate their properties and conduct their businesses as described in the Prospectus andaggregate have a material adverse effect on the consolidated financial position, with respect to the Company, to execute and deliver, and perform the Company’s obligations under, this Agreement; stockholders' equity or results of operations of the Company and its Subsidiaries subsidiaries; and, to the best of the Company's knowledge, no such proceedings are duly qualified threatened or contemplated by governmental authorities or threatened by others.
(o) The Company is not an "investment company" or an entity "controlled" by an "investment company," as such terms are defined in the Investment Company Act of 1940, as amended.
(p) Except as set forth in the Prospectus Supplement, the Company and its subsidiaries (A) are in compliance with any and all applicable federal, state and local laws and regulations relating to do business as foreign corporations the protection of human health and safety, the environment or organizations in good standing in each state hazardous or toxic substances or wastes, pollutants or contaminants ("Environmental Laws"), (B) have received all permits, licenses or other jurisdiction approvals required of them under applicable Environmental Laws to conduct its respective business and (C) are in which their ownership compliance with all terms and conditions of any such permits, licenses or leasing of property or conduct of business legally requires such qualificationapprovals, except where the such noncompliance with Environmental Laws, failure to be so qualifiedreceive required permits, individually licenses or other approvals or failure to comply with the terms and conditions of such permits, licenses or approvals would not, singly or in the aggregate, would not have a Material Adverse Effect. The term “Material Adverse Effect” as used herein means any material adverse effect on the condition (financial or other), net worth, business, affairs, management, prospects, results of operations or cash flow of the Company and its Subsidiariessubsidiaries, taken as a whole.
Appears in 1 contract
Samples: Underwriting Agreement (Northern States Power Co /Mn/)
Representations and Warranties by the Company. The Company represents and warrants the Co-Issuer, jointly and severally, represent and warrant to the Sales AgentDealer Manager, the Forward Seller and the Forward Purchaser as of the date hereof hereof, as of each date that any Tender Documents are published, sent, given or otherwise distributed (each a “Mailing Date”), and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 8(o) of this Agreement, as of that the date on which any Placement Notice is given hereunder, as of the time of each sale of any Issuance Shares or Forward Hedge Shares Notes are purchased by the Company pursuant to the Tender Offer (each such date, a “Closing Date”) that:
(a) Each of the Company and the Co-Issuer has been duly formed or incorporated and is validly existing as a limited partnership or corporation and in good standing under the laws of the jurisdiction of its formation or incorporation.
(b) Each of the Company and the Co-Issuer has all necessary corporate or limited partnership power and authority to execute and deliver this Agreement, and to perform all its obligations hereunder and to make and consummate the Tender Offer in accordance with its terms.
(c) Each of the Company and the Co-Issuer has taken all necessary action to authorize the making and consummation of the Tender Offer and the execution, delivery and performance by the Company of this Agreement; and this Agreement has been duly executed and delivered by the Company and the Co-Issuer, and, assuming due authorization, execution and delivery by the Dealer Manager, this Agreement constitutes a valid and legally binding agreement of the Company and the Co-Issuer, enforceable against the Company and the Co-Issuer in accordance with its terms, except to the extent such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting the rights and remedies of creditors or by general equitable principles.
(d) As of the Consent Payment Deadline (as defined in the Tender Documents), the Company and the Co-Issuer will have all necessary corporate power and authority to execute and deliver the supplemental indenture contemplated by the Tender Documents (the “Applicable TimeSupplemental Indenture”) and as of each Settlement Date (as defined below), and agrees with the Sales Agent, the Forward Seller and the Forward Purchaser, as follows:
(1) The Company satisfies to perform all of their obligations thereunder; the requirements Supplemental Indenture may be entered into by the Company upon the consent of Holders of at least a majority of the Securities Act principal amount of Notes then outstanding (excluding for use of Form S-3 for the offering of the Shares contemplated hereby and the offering and sale of Shares contemplated hereby complies with the requirements of Rule 415 under the Securities Act. At the time of the initial filing of the Registration Statement, such purposes any Notes owned at the time of the most recent amendment thereto 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), at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Securities Act) made any offer relating to the Shares in reliance on the exemption of Rule 163 under the Securities Act and at the date hereof, the Company was and is a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act, including not having been and not being an “ineligible issuer,” as defined in Rule 405 under the Securities Act. The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 under the Securities Act, 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.” The Company has not received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting to the use of the automatic shelf registration statement form. The Company has paid or will pay the required Commission filing fees relating to the Shares within the time required by Rule 456(b)(1)(i) under the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Securities Act (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) under the Securities Act either in a post-effective amendment to the Registration Statement or on the cover page of the Prospectus).
(2) The Original Registration Statement became effective upon filing under Rule 462(e) under the Securities Act on February 12, 2020. 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 by the Commission, and any request on the part of the Commission for additional information has been complied with.
(3) Any offer that is a written communication relating to the Shares made prior to the initial filing of the Registration Statement by the Company or any person acting on of its behalf affiliates) pursuant to the provisions of the Indenture; the Supplemental Indenture will be duly executed and delivered (within assuming consummation of the meaningSolicitation and assuming due authorization, for this paragraph onlyexecution and delivery thereof by the Trustee); the Supplemental Indenture, as well as the Indenture (as amended by the Supplemental Indenture) and the Notes issued thereunder, will be the valid and legally binding obligations of Rule 163(c) under the Securities Act) has been filed with Company and the Commission Co-Issuer entitled, in the case of the Notes, to the benefits of the Indenture (as amended by the Supplemental Indenture), and enforceable against the Company and the Co-Issuer in accordance with the exemption provided their respective terms except as enforcement thereof may be limited by Rule 163 under the Securities Act bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting creditors’ rights generally and otherwise complied with the requirements of Rule 163 under the Securities Act, including without limitation the legending requirementgeneral equitable principles.
(4e) The Company has delivered or made available on XXXXX to each Each of the Sales Agent Tender Documents complies and the Forward Seller one complete copy of the Registration Statement and a copy of each consent and certificate of experts filed as a part thereof, and conformed copies of the Registration Statement (without exhibits) and the Prospectus, as amended or supplemented, in such quantities and at such places as the Sales Agent if amended or the Forward Seller, as applicable, has reasonably requested. The Prospectus delivered to the Sales Agent and the Forward Seller for use in connection with the offering of Shares will, at the time of such delivery, be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(5supplemented) At the respective times the Registration Statement and each amendment thereto became effective, at each deemed effective date with respect to the Sales Agent, the Forward Seller or the Forward Purchaser pursuant to Rule 430B(f)(2) under the Securities Act, as the case may be, the Registration Statement complied and will comply in all material respects with the all applicable requirements of the Securities ActAct of 1933, as amended, and did the rules and regulations promulgated thereunder (collectively, the “Securities Act”) and the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (collectively, the “Exchange Act”); and the documents incorporated or deemed to be incorporated by reference into each of the Tender Documents (collectively, the “Incorporated Documents”) complied, as of the date of filing with the Securities and Exchange Commission (the “SEC”), in all material respects with all applicable requirements of the Securities Act and the Exchange Act; and each of the Tender Documents (including the Incorporated Documents) do not and (as amended or supplemented, if amended or supplemented) will not contain 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. The preceding sentence does not apply to statements in or omissions from the Registration Statement or any amendment thereto in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, expressly for inclusion in any of the aforementioned documents.
(6) Neither the Prospectus nor any amendments or supplements thereto, at the time the Prospectus or any such amendment or supplement was issued, as of the date hereof, at each Representation Date, at each Applicable Time, and at each Settlement Date, as the case may be, included or will include an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. .
(f) The preceding sentence does not apply to statements financial statements, together with the related schedules and notes, contained in or omissions from the Prospectus, as amended or supplementedTender Documents and the Incorporated Documents present fairly in all material respects, in reliance upon and in conformity accordance with written information relating to the Sales Agentgenerally accepted accounting principles (“GAAP”), the Forward Seller or the Forward Purchaser furnished to consolidated financial position, results of operations, stockholder’s equity and cash flows of the Company and its subsidiaries on the basis stated therein at the respective dates or for the respective periods to which they relate; and such statements and related schedules and notes have been prepared in writing accordance with GAAP consistently applied throughout the periods involved, except as disclosed therein.
(g) Except as disclosed in the Tender Documents, the Company and its subsidiaries are not in breach or violation of or in default under (i) any of the provisions of the Indenture, (ii) any of the provisions of the charter or bylaws (or similar organizational documents) of the Company or any of its subsidiaries, (iii) any other note, indenture, loan agreement, mortgage or other agreement, instrument or undertaking to which the Company or any of its subsidiaries is a party or by which any of them is bound or to which any of their properties or assets is subject, or (iv) any law, rule or regulation, or any order of any court or of any other governmental agency or instrumentality having jurisdiction over the Company or any of its subsidiaries or affiliates or any of its or their respective properties or assets, which violation or default in the case of clauses (i), (iii) or (iv) would, if continued, have a material adverse effect on the general affairs, management, business, condition (financial or otherwise), or results of operations of the Company and its subsidiaries, taken as a whole (a “Material Adverse Effect”) or could materially impair the ability of any of the Company or its subsidiaries to perform their obligations under this Agreement.
(h) The execution, delivery and performance by the Sales Agent, Company and the Forward Seller or Co-Issuer of this Agreement and the Forward Purchaserconsummation by the Company and the Co-Issuer, as applicable, expressly for inclusion of the transactions contemplated hereby do not and will not conflict with, or result (or with the passage of time would result) in a breach or violation of, or constitute a default under, (i) any of the aforementioned provisions of the Indenture or of the charter or bylaws (or similar organizational documents) of the Company or any of its subsidiaries, (ii) any other note, indenture, loan agreement, mortgage or other agreement, instrument or undertaking to which the Company or any of its subsidiaries or affiliates is a party or by which any of them is bound or to which any of their properties or assets is subject, or (iii) any law, rule or regulation, or any order of any court or of any other governmental agency or instrumentality having jurisdiction over the Company or any of its subsidiaries or affiliates or any of its or their respective properties or assets, except for such breaches, violations, and defaults in the case of clause (ii) and clause (iii) that would not be reasonably expected to have a Material Adverse Effect.
(7i) Each document incorporated No consent, approval, authorization or order of, or registration, qualification or filing with, any court or regulatory authority or other governmental agency or instrumentality is or will be required by reference the Company in connection with the Registration Statement making or consummation of the Tender Offer or the Prospectus heretofore filedexecution, when it was filed delivery or performance by the Company of this Agreement and the transactions contemplated hereby, except such as have been obtained or made by the Company or the Co-Issuer, as applicable, and are in full force and effect under the Securities Act, the Exchange Act or applicable state securities or “blue sky” laws or regulations.
(orj) In connection with the Tender Offer, if any amendment with respect the Company has complied, and will continue to any such document was filedcomply, when such amendment was filed), conformed in all material respects with the requirements Securities Act, the Exchange Act, the applicable regulations of the Exchange Act Financial Industry Regulatory Authority or any stock exchange and applicable state securities or “blue sky” laws or regulations.
(k) Subsequent to the respective dates of the most recent financial statements contained in the Tender Documents and the rules and regulations thereunderIncorporated Documents (each as amended or supplemented), and no Material Adverse Effect shall have occurred, except as set forth in, or contemplated by, the Tender Documents (as amended or supplemented).
(l) There is no action, suit, proceeding, inquiry or investigation before or brought by any further documents so filed and incorporated after court or governmental agency or body, domestic or foreign, now pending or, to the date Company’s knowledge, threatened, against or affecting the Company or any subsidiary of this Agreement willthe Company, when they are filed, conform other than those accurately described in all material respects with in the requirements of the Exchange Act and the rules and regulations thereunder; no such document when it was filed (or, if an amendment with respect to any such document was filed, when such amendment was filed), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and no such document, when it is filed, will contain an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(8) Each Issuer Free Writing Prospectus (as defined herein), on its issue date, as of each Applicable Time, and as of each Settlement DateTender Documents, or until any earlier date that the issuer notified or notifies the Sales Agent or the Forward Seller as described in Section 8(d) hereof, 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 incorporated document deemed to be a part thereof that has not been superseded or modified. The foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with written information furnished to the Company by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, specifically for use therein.
(9) This Agreement has been duly authorized, executed and delivered by the Company and this Agreement constitutes a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and by general principles of equity (the “Exceptions”). The Master Forward Confirmation will have been, as of its date, duly authorized, executed and delivered by the Company and when executed and delivered by the Forward Purchaser, such Master Forward Confirmation will constitute a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by the Exceptions.
(10) The Company and its “Subsidiaries” (as defined in Section 6(a)(13) hereof) have been duly incorporated or organized and are validly existing as corporations or organizations in good standing under the laws of the states or other jurisdictions in which they are incorporated or organized, with full power and authority (corporate and other) to own, lease and operate their properties and conduct their businesses as described in the Prospectus and, with respect to the Company, to execute and deliver, and perform the Company’s obligations under, this Agreement; the Company and its Subsidiaries are duly qualified to do business as foreign corporations or organizations in good standing in each state or other jurisdiction in which their ownership or leasing of property or conduct of business legally requires such qualification, except where the failure to be so qualifiedwhich, individually or in the aggregate, would not have reasonably be expected to result in a Material Adverse Effect.
(m) The Company has, or at the time it becomes obligated to purchase the Notes pursuant to the Tender Offer will have, sufficient funds available, and sufficient authority to use such funds under applicable law, to enable it to pay for the Notes tendered in accordance with the terms and conditions set forth in the Tender Documents. The term “Material Adverse Effect” representations and warranties set forth in this Section 4 shall remain operative and in full force and effect regardless of any investigation made by or on behalf of any Indemnified Person (as used herein means any material adverse effect on the condition (financial or otherdefined in Annex A attached hereto), net worth, business, affairs, management, prospects, results of operations or cash flow of the Company and its Subsidiaries, taken as a whole.
Appears in 1 contract
Samples: Dealer Manager and Solicitation Agent Agreement (Suburban Propane Partners Lp)
Representations and Warranties by the Company. The Company represents and warrants to the Sales Agent, the Forward Seller and the Forward Purchaser as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 8(o) of this Agreement, as of that date on which any Placement Notice is given hereunder, as of the time of each sale of any Issuance Shares or Forward Hedge Shares pursuant to this Agreement (the “Applicable Time”) and as of each Settlement Date (as defined below)to, and agrees with the Sales Agentwith, the Forward Seller and the Forward Purchaser, as followseach Underwriter that:
(1a) The Company satisfies all of meets the requirements of the Securities Act for use of Form S-3 under the Securities Act of 1933, as amended (the "Act") and has filed with the Securities and Exchange Commission (the "Commission") a registration statement on such Form, including a prospectus, for the registration under the Act of the Debt Securities, Senior Notes and First Mortgage Bonds, which registration statement has become effective. Such registration statement and prospectus may have been amended or supplemented from time to time prior to the date of this Agreement (which date is set forth in Schedule I hereto). Any such amendment or supplement was filed with the Commission and any such amendment has become effective. The Company will file with the Commission a prospectus supplement (the "Prospectus Supplement") relating to the Debt Securities pursuant to Rule 424 and/or Rule 434 under the Act. Copies of such registration statement and prospectus, any such amendment or supplement and all documents incorporated by reference therein which were filed with the Commission on or prior to the date of this Agreement have been delivered to you and copies of the Prospectus Supplement will be delivered to you promptly after it is filed with the Commission. Such registration statement, as amended prior to the date of this Agreement, and such prospectus, as amended and supplemented prior to the date of this Agreement and as supplemented by the Prospectus Supplement, are hereinafter called the "Registration Statement" and the "Prospectus", respectively. Any reference herein to the Registration Statement or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 which were filed under the Securities Exchange Act of 1934, as amended (the "Exchange Act") on or before the date of this Agreement and, if the Company files any document pursuant to the Exchange Act after the date of this Agreement and prior to the termination of the offering of the Shares contemplated hereby Debt Securities by the Underwriters, which documents are deemed to be incorporated by reference into the Prospectus, the term "Prospectus" shall refer also to said prospectus as supplemented by the documents so filed from and after the offering and sale of Shares contemplated hereby complies time said documents are filed with the requirements of Rule 415 under the Securities ActCommission. At the time There are no contracts or documents of the initial filing Company or any of its subsidiaries that are required to be filed as exhibits to the Registration Statement or any documents incorporated by reference therein by the Act, the Exchange Act or the rules and regulations thereunder which have not been so filed.
(b) No order preventing or suspending the use of the Prospectus or the Registration Statement has been issued by the Commission and the Registration Statement, at the time date of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective amendmentthis Agreement, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Securities Act) made any offer relating to the Shares in reliance on the exemption of Rule 163 under the Securities Act and at the date hereof, the Company was and is a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act, including not having been and not being an “ineligible issuer,” as defined in Rule 405 under the Securities Act. The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 under the Securities Act, 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.” The Company has not received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting to the use of the automatic shelf registration statement form. The Company has paid or will pay the required Commission filing fees relating to the Shares within the time required by Rule 456(b)(1)(i) under the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Securities Act (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) under the Securities Act either in a post-effective amendment to the Registration Statement or on the cover page of the Prospectus).
(2) The Original Registration Statement became effective upon filing under Rule 462(e) under the Securities Act on February 12, 2020. 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 by the Commission, and any request on the part of the Commission for additional information has been complied with.
(3) Any offer that is a written communication relating to the Shares made prior to the initial filing of the Registration Statement by the Company or any person acting on its behalf (within the meaning, for this paragraph only, of Rule 163(c) under the Securities Act) has been filed with the Commission in accordance with the exemption provided by Rule 163 under the Securities Act and otherwise complied with the requirements of Rule 163 under the Securities Act, including without limitation the legending requirement.
(4) The Company has delivered or made available on XXXXX to each of the Sales Agent and the Forward Seller one complete copy of the Registration Statement and a copy of each consent and certificate of experts filed as a part thereof, and conformed copies of the Registration Statement (without exhibits) and the Prospectus, as amended or supplemented, in such quantities and at such places as the Sales Agent or the Forward Seller, as applicable, has reasonably requested. The Prospectus delivered to the Sales Agent and the Forward Seller for use in connection with the offering of Shares will, at the time of such delivery, be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(5) At the respective times the Registration Statement and each amendment thereto became effective, at each deemed effective date with respect to the Sales Agent, the Forward Seller or the Forward Purchaser pursuant to Rule 430B(f)(2) under the Securities Act, as the case may be, the Registration Statement complied and will comply in all material respects with the requirements of the Securities Act, the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act") and the respective rules and regulations of the Commission thereunder and did not and will not contain 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. The preceding sentence does not apply to statements in or omissions from the Registration Statement or any amendment thereto in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, expressly for inclusion in any of the aforementioned documents.
(6) Neither the Prospectus nor any amendments or supplements thereto, at the time the Prospectus or any such amendment or supplement was issued, as of the date hereof, at each Representation Date, at each Applicable Time, and at each Settlement Date, as the case may be, included or will include an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from the Prospectus, as amended or supplemented, in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, expressly for inclusion in any of the aforementioned documents.
(7) Each document incorporated by reference in the Registration Statement or the Prospectus heretofore filed, when it was filed (or, if any amendment with respect to any such document was filed, when such amendment was filed), conformed in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder, and any further documents so filed and incorporated after the date of this Agreement will, when they are filed, conform in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder; no such document when it was filed (or, if an amendment with respect to any such document was filed, when such amendment was filed), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and, at the time the Prospectus Supplement is filed with the Commission and no such documentat the Closing Date (as hereinafter defined), when it is filed, the Prospectus will comply in all material respects with the Act and the rules and regulations of the Commission thereunder and will not contain an any untrue statement of a material fact or will omit to state a any material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(8) Each Issuer Free Writing Prospectus (as defined herein), on its issue date, as of each Applicable Time, and as of each Settlement Date, or until any earlier date ; provided that the issuer notified Company makes no representations or notifies warranties as to (A) that part of the Sales Agent Registration Statement which shall constitute the Statements of Eligibility (Forms T-1) under the Trust Indenture Act of the Debt Trustee and the trustees for the Senior Notes and Debt Securities or the Forward Seller as described in Section 8(d(B) hereof, did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in or omitted from the Registration Statement or the Prospectus in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of any Underwriter through the Representatives specifically for use in the Registration Statement or Prospectus.
(c) The documents incorporated by reference in the Prospectus, including when they were filed with the Commission, conformed in all material respects to the requirements of the Exchange Act and the rules and regulations of the Commission thereunder, and any documents so filed and incorporated document deemed by reference subsequent to the date of this Agreement will, when they are filed with the Commission, conform in all material respects to the requirements of the Exchange Act, and the rules and regulations of the Commission thereunder; and none of such documents include or will include any untrue statement of a material fact or omit or will omit to state any 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.
(d) PricewaterhouseCoopers LLP which audited certain of the financial statements incorporated by reference in the Registration Statement, is an independent public accountant as required by the Act and the rules and regulations of the Commission thereunder.
(e) The financial statements of the Company and its consolidated subsidiaries filed as a part thereof that of or incorporated by reference in the Registration Statement or Prospectus fairly present the financial position of the Company and its consolidated subsidiaries as of the dates indicated and the results of their operations and changes in financial position for the periods specified, and have been prepared in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods involved, except as disclosed in the Prospectus Supplement.
(f) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Minnesota with due corporate authority to carry on the business in which it is engaged and to own and operate the properties used by it in such business, as described in the Prospectus; the Company is qualified to do business as a foreign corporation and is in good standing under the laws of the States of North Dakota and South Dakota; and the Company is not required by the nature of its business to be licensed or qualified as a foreign corporation in any other state or jurisdiction; and, except as set forth in the Prospectus Supplement, the Company has all material licenses and approvals required at the date hereof to conduct its business.
(g) Each subsidiary of the Company named in Exhibit 21.01 to the Company's most recent Annual Report on Form 10-K ("Significant Subsidiary") has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation and is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which it owns or leases substantial properties or in which the conduct of its business requires such qualification; all of the issued and outstanding capital stock of each such subsidiary has been duly authorized and validly issued and is fully paid and non-assessable; and the capital stock of each such subsidiary owned by the Company, directly or through subsidiaries, is owned free and clear of any pledge, lien, encumbrance, claim or equity.
(h) Neither the Company nor any of its subsidiaries has sustained since the date of the latest audited financial statements included or incorporated by reference in the Prospectus any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus Supplement; and, since the respective dates as of which information is given in the Registration Statement and the Prospectus Supplement, neither the Company nor any of its subsidiaries has incurred any liabilities or obligations, direct or contingent, or entered into any transactions, not in the ordinary course of business, which are material to the Company and its subsidiaries, and there has not been superseded any material change in the capital stock or modified. The foregoing sentence does not apply to statements long-term debt of the Company or any of its subsidiaries or any material adverse change, or any development involving a prospective material adverse change, in or omissions from affecting the general affairs, management, financial position, stockholders' equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Prospectus Supplement.
(i) Neither the execution and delivery of this Agreement and the Debt Indenture, the issuance and delivery of the Debt Securities, the consummation of the transactions herein contemplated, the fulfillment of the terms hereof, nor compliance with the terms and provisions of this Agreement, the Debt Securities and the Debt Indenture will conflict with, or result in the breach of, any Issuer Free Writing Prospectus based upon and of the terms, provisions or conditions of the Restated Articles of Incorporation, as amended, or by-laws of the Company, or of any contract, agreement or instrument to which the Company is a party or in conformity with written information furnished which the Company has a beneficial interest or by which the Company is bound or of any order, rule or regulation applicable to the Company by of any court or of any federal or state regulatory body or administrative agency or other governmental body having jurisdiction over the Sales Agent, the Forward Seller Company or the Forward Purchaser, as applicable, specifically for use thereinover its properties.
(9j) This The Debt Securities have been duly authorized for issuance and sale pursuant to this Agreement and, when executed and authenticated in accordance with the Debt Indenture and delivered and paid for as provided herein, will be duly issued and will constitute valid and binding obligations of the Company enforceable in accordance with their terms, except as limited by bankruptcy, insolvency and other laws affecting enforcement of creditors' rights, and will be entitled to the benefits of the Debt Indenture which will be substantially in the form heretofore delivered to you.
(k) The Debt Indenture has been duly authorizedand validly authorized by the Company and, when duly executed and delivered by the Company Company, assuming due authorization, execution and this Agreement constitutes delivery thereof by the Debt Trustee, will constitute a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability enforcement thereof may be limited by bankruptcy, insolvencyinsolvency or other laws affecting enforcement of creditors' rights.
(l) The Minnesota Public Utilities Commission has issued its order approving capital structure which order authorizes the issuance of the Debt Securities, fraudulent conveyanceand no other approval of any regulatory public body, reorganizationstate or federal, moratorium is, or will be at the Closing Date (as hereinafter defined), necessary in connection with the issuance and sale of the Debt Securities pursuant to this Agreement, other than approvals that may be required under state securities laws.
(m) The Company has good and valid title to all real and fixed property and leasehold rights which are owned by it, subject only to taxes and assessments not yet delinquent; the lien of First Mortgage Indenture; as to parts of the Company's property, certain easements, conditions, restrictions, leases, and similar laws relating to or affecting creditors’ rights generally and by general principles encumbrances which do not affect the Company's use of equity (such property in the “Exceptions”). The Master Forward Confirmation will have been, as usual course of its datebusiness, duly authorizedand certain minor defects in titles which are not material, executed and delivered defects in titles to certain properties which are not essential to the Company's business; and mechanics' lien claims being contested or not of record or for the satisfaction or discharge of which adequate provision has been made by the Company pursuant to the First Mortgage Indenture; and when executed any real property and delivered buildings held under lease by the Forward PurchaserCompany is held by it under valid, subsisting and enforceable leases with such Master Forward Confirmation will constitute exceptions as are not material and do not interfere with the use made and proposed to be made of such property and buildings by the Company.
(n) Other than as set forth or contemplated in the Prospectus as of the date hereof, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a valid and legally binding obligation party or of which any property of the Company enforceable against or any of its subsidiaries is the subject which, if determined adversely to the Company in accordance with or any of its termssubsidiaries, except as enforceability may be limited by the Exceptions.
(10) The Company and its “Subsidiaries” (as defined in Section 6(a)(13) hereof) have been duly incorporated would individually or organized and are validly existing as corporations or organizations in good standing under the laws of the states or other jurisdictions in which they are incorporated or organized, with full power and authority (corporate and other) to own, lease and operate their properties and conduct their businesses as described in the Prospectus andaggregate have a material adverse effect on the consolidated financial position, with respect to the Company, to execute and deliver, and perform the Company’s obligations under, this Agreement; stockholders' equity or results of operations of the Company and its Subsidiaries subsidiaries; and, to the best of the Company's knowledge, no such proceedings are duly qualified threatened or contemplated by governmental authorities or threatened by others.
(o) The Company is not an "investment company" or an entity "controlled" by an "investment company," as such terms are defined in the Investment Company Act of 1940, as amended.
(p) Except as set forth in the Prospectus Supplement, the Company and its subsidiaries (A) are in compliance with any and all applicable federal, state and local laws and regulations relating to do business as foreign corporations the protection of human health and safety, the environment or organizations in good standing in each state hazardous or toxic substances or wastes, pollutants or contaminants ("Environmental Laws"), (B) have received all permits, licenses or other jurisdiction approvals required of them under applicable Environmental Laws to conduct its respective business and (C) are in which their ownership compliance with all terms and conditions of any such permits, licenses or leasing of property or conduct of business legally requires such qualificationapprovals, except where the such noncompliance with Environmental Laws, failure to be so qualifiedreceive required permits, individually licenses or other approvals or failure to comply with the terms and conditions of such permits, licenses or approvals would not, singly or in the aggregate, would not have a Material Adverse Effect. The term “Material Adverse Effect” as used herein means any material adverse effect on the condition (financial or other), net worth, business, affairs, management, prospects, results of operations or cash flow of the Company and its Subsidiariessubsidiaries, taken as a whole.
Appears in 1 contract
Samples: Underwriting Agreement (Northern States Power Co /Mn/)
Representations and Warranties by the Company. The Company represents and warrants to the Sales Agent, the Forward Seller and the Forward Purchaser as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 8(o) of this Agreement, as of that date on which any Placement Notice is given hereunder, as of the time of each sale of any Issuance Shares or Forward Hedge Shares pursuant to this Agreement (the “Applicable Time”) and as of each Settlement Date (as defined below)to, and agrees with the Sales Agentwith, the Forward Seller and the Forward Purchaser, as followseach Underwriter that:
(1a) The Company satisfies all of meets the requirements of the Securities Act for use of Form S-3 under the Securities Act of 1933, as amended (the "Act") and has filed with the Securities and Exchange Commission (the "Commission") a registration statement on such Form, including a prospectus, for the registration under the Act of the Debt Securities, which registration statement has become effective. Such registration statement and prospectus may have been amended or supplemented from time to time prior to the date of this Agreement (which date is set forth in Schedule I hereto). Any such amendment or supplement was filed with the Commission and any such amendment has become effective. The Company will file with the Commission a prospectus supplement (the "Prospectus Supplement") relating to the Debt Securities pursuant to Rule 424 and/or Rule 434 under the Act. Copies of such registration statement and prospectus, any such amendment or supplement and all documents incorporated by reference therein which were filed with the Commission on or prior to the date of this Agreement have been delivered to you and copies of the Prospectus Supplement will be delivered to you promptly after it is filed with the Commission. Such registration statement, as amended prior to the date of this Agreement, and such prospectus, as amended and supplemented prior to the date of this Agreement and as supplemented by the Prospectus Supplement, are hereinafter called the "Registration Statement" and the "Prospectus", respectively. Any reference herein to the Registration Statement or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 which were filed under the Securities Exchange Act of 1934, as amended (the "Exchange Act") on or before the date of this Agreement and, if the Company files any document pursuant to the Exchange Act after the date of this Agreement and prior to the termination of the offering of the Shares contemplated hereby Debt Securities by the Underwriters, which documents are deemed to be incorporated by reference into the Prospectus, the term "Prospectus" shall refer also to said prospectus as supplemented by the documents so filed from and after the offering and sale of Shares contemplated hereby complies time said documents are filed with the requirements of Rule 415 under the Securities ActCommission. At the time There are no contracts or documents of the initial filing Company or any of its subsidiaries that are required to be filed as exhibits to the Registration Statement or any documents incorporated by reference therein by the Act, the Exchange Act or the rules and regulations thereunder which have not been so filed.
(b) No order preventing or suspending the use of the Prospectus or the Registration Statement has been issued by the Commission and the Registration Statement, at the time date of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective amendmentthis Agreement, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Securities Act) made any offer relating to the Shares in reliance on the exemption of Rule 163 under the Securities Act and at the date hereof, the Company was and is a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act, including not having been and not being an “ineligible issuer,” as defined in Rule 405 under the Securities Act. The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 under the Securities Act, 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.” The Company has not received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting to the use of the automatic shelf registration statement form. The Company has paid or will pay the required Commission filing fees relating to the Shares within the time required by Rule 456(b)(1)(i) under the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Securities Act (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) under the Securities Act either in a post-effective amendment to the Registration Statement or on the cover page of the Prospectus).
(2) The Original Registration Statement became effective upon filing under Rule 462(e) under the Securities Act on February 12, 2020. 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 by the Commission, and any request on the part of the Commission for additional information has been complied with.
(3) Any offer that is a written communication relating to the Shares made prior to the initial filing of the Registration Statement by the Company or any person acting on its behalf (within the meaning, for this paragraph only, of Rule 163(c) under the Securities Act) has been filed with the Commission in accordance with the exemption provided by Rule 163 under the Securities Act and otherwise complied with the requirements of Rule 163 under the Securities Act, including without limitation the legending requirement.
(4) The Company has delivered or made available on XXXXX to each of the Sales Agent and the Forward Seller one complete copy of the Registration Statement and a copy of each consent and certificate of experts filed as a part thereof, and conformed copies of the Registration Statement (without exhibits) and the Prospectus, as amended or supplemented, in such quantities and at such places as the Sales Agent or the Forward Seller, as applicable, has reasonably requested. The Prospectus delivered to the Sales Agent and the Forward Seller for use in connection with the offering of Shares will, at the time of such delivery, be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(5) At the respective times the Registration Statement and each amendment thereto became effective, at each deemed effective date with respect to the Sales Agent, the Forward Seller or the Forward Purchaser pursuant to Rule 430B(f)(2) under the Securities Act, as the case may be, the Registration Statement complied and will comply in all material respects with the requirements of the Securities Act, the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act") and the respective rules and regulations of the Commission thereunder and did not and will not contain 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. The preceding sentence does not apply to statements in or omissions from the Registration Statement or any amendment thereto in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, expressly for inclusion in any of the aforementioned documents.
(6) Neither the Prospectus nor any amendments or supplements thereto, at the time the Prospectus or any such amendment or supplement was issued, as of the date hereof, at each Representation Date, at each Applicable Time, and at each Settlement Date, as the case may be, included or will include an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from the Prospectus, as amended or supplemented, in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, expressly for inclusion in any of the aforementioned documents.
(7) Each document incorporated by reference in the Registration Statement or the Prospectus heretofore filed, when it was filed (or, if any amendment with respect to any such document was filed, when such amendment was filed), conformed in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder, and any further documents so filed and incorporated after the date of this Agreement will, when they are filed, conform in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder; no such document when it was filed (or, if an amendment with respect to any such document was filed, when such amendment was filed), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and, at the time the Prospectus Supplement is filed with the Commission and no such documentat the Closing Date (as hereinafter defined), when it is filed, the Prospectus will comply in all material respects with the Act and the rules and regulations of the Commission thereunder and will not contain an any untrue statement of a material fact or will omit to state a any material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(8) Each Issuer Free Writing Prospectus (as defined herein), on its issue date, as of each Applicable Time, and as of each Settlement Date, or until any earlier date ; PROVIDED that the issuer notified Company makes no representations or notifies warranties as to (A) that part of the Sales Agent Registration Statement which shall constitute the Statement of Eligibility (Form T-1) under the Trust Indenture Act of the Trustee or the Forward Seller as described in Section 8(d(B) hereof, did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in or omitted from the Registration Statement or the Prospectus in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of any Underwriter through the Representatives specifically for use in the Registration Statement or Prospectus.
(c) The documents incorporated by reference in the Prospectus, including when they were filed with the Commission, conformed in all material respects to the requirements of the Exchange Act and the rules and regulations of the Commission thereunder, and any documents so filed and incorporated document deemed by reference subsequent to the date of this Agreement will, when they are filed with the Commission, conform in all material respects to the requirements of the Exchange Act, and the rules and regulations of the Commission thereunder; and none of such documents include or will include any untrue statement of a material fact or omit or will omit to state any 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.
(d) PricewaterhouseCoopers LLP and Xxxxxx Xxxxxxxx LLP, which audited the financial statements incorporated by reference in the Registration Statement, are independent public accountants as required by the Act and the rules and regulations of the Commission thereunder.
(e) The financial statements of the Company and its consolidated subsidiaries filed as a part thereof that of or incorporated by reference in the Registration Statement or Prospectus fairly present the financial position of the Company and its consolidated subsidiaries as of the dates indicated and the results of their operations and changes in financial position for the periods specified, and have been prepared in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods involved, except as disclosed in the Prospectus Supplement.
(f) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Minnesota with due corporate authority to carry on the business in which it is engaged and to own and operate the properties used by it in such business, as described in the Prospectus; the Company is qualified to do business as a foreign corporation and is in good standing under the laws of the States of North Dakota and South Dakota; and the Company is not required by the nature of its business to be licensed or qualified as a foreign corporation in any other state or jurisdiction; and, except as set forth in the Prospectus Supplement, the Company has all material licenses and approvals required at the date hereof to conduct its business.
(g) The Company has no subsidiaries which would be deemed significant subsidiaries under Regulation S-X.
(h) Neither the Company nor any of its subsidiaries has sustained since the date of the latest audited financial statements included or incorporated by reference in the Prospectus any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus Supplement; and, since the respective dates as of which information is given in the Registration Statement and the Prospectus Supplement, neither the Company nor any of its subsidiaries has incurred any liabilities or obligations, direct or contingent, or entered into any transactions, not in the ordinary course of business, which are material to the Company and its subsidiaries, and there has not been superseded any material change in the capital stock or modified. The foregoing sentence does not apply to statements long-term debt of the Company or any of its subsidiaries or any material adverse change, or any development involving a prospective material adverse change, in or omissions from affecting the general affairs, management, financial position, stockholders' equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Prospectus Supplement.
(i) Neither the execution and delivery of this Agreement and the Indenture, the issuance and delivery of the Debt Securities, the consummation of the transactions herein contemplated, the fulfillment of the terms hereof, nor compliance with the terms and provisions of this Agreement, the Debt Securities and the Indenture will conflict with, or result in the breach of, any Issuer Free Writing Prospectus based upon and of the terms, provisions or conditions of the Articles of Incorporation, as amended, or by-laws of the Company, or of any contract, agreement or instrument to which the Company is a party or in conformity with written information furnished which the Company has a beneficial interest or by which the Company is bound or of any order, rule or regulation applicable to the Company by of any court or of any federal or state regulatory body or administrative agency or other governmental body having jurisdiction over the Sales Agent, the Forward Seller Company or the Forward Purchaser, as applicable, specifically for use thereinover its properties.
(9j) This The Debt Securities have been duly authorized for issuance and sale pursuant to this Agreement and, when executed and authenticated in accordance with the Indenture and delivered and paid for as provided herein, will be duly issued and will constitute valid and binding obligations of the Company enforceable in accordance with their terms, except as limited by bankruptcy, insolvency and other laws affecting enforcement of creditors' rights, and will be entitled to the benefits of the Indenture which will be substantially in the form heretofore delivered to you.
(k) The Indenture has been duly authorizedand validly authorized by the Company and, when duly executed and delivered by the Company Company, assuming due authorization, execution and this Agreement constitutes delivery thereof by the Trustee, will constitute a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability enforcement thereof may be limited by bankruptcy, insolvencyinsolvency or other laws affecting enforcement of creditors' rights.
(l) The Minnesota Public Utilities Commission has issued its order approving capital structure which order authorizes the issuance of the Debt Securities, fraudulent conveyanceand no other approval of any regulatory public body, reorganizationstate or federal, moratorium is, or will be at the Closing Date (as hereinafter defined), necessary in connection with the issuance and sale of the Debt Securities pursuant to this Agreement, other than approvals that may be required under state securities laws.
(m) The Company has good and valid title to all real and fixed property and leasehold rights which are owned by it, subject only to the Company's first mortgage indenture; taxes and assessments not yet delinquent; as to parts of the Company's property, certain easements, conditions, restrictions, leases, and similar laws relating to or affecting creditors’ rights generally and by general principles encumbrances which do not affect the Company's use of equity (such property in the “Exceptions”). The Master Forward Confirmation will have been, as usual course of its datebusiness, duly authorizedand certain minor defects in titles which are not material, executed and delivered defects in titles to certain properties which are not essential to the Company's business; and mechanics' lien claims being contested or not of record or for the satisfaction or discharge of which adequate provision has been made by the Company; and any real property and buildings held under lease by the Company is held by it under valid, subsisting and when executed enforceable leases with such exceptions as are not material and delivered do not interfere with the use made and proposed to be made of such property and buildings by the Forward PurchaserCompany.
(n) Other than as set forth or contemplated in the Prospectus as of the date hereof, such Master Forward Confirmation will constitute there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a valid and legally binding obligation party or of which any property of the Company enforceable against or any of its subsidiaries is the subject which, if determined adversely to the Company in accordance with or any of its termssubsidiaries, except as enforceability may be limited by the Exceptions.
(10) The Company and its “Subsidiaries” (as defined in Section 6(a)(13) hereof) have been duly incorporated would individually or organized and are validly existing as corporations or organizations in good standing under the laws of the states or other jurisdictions in which they are incorporated or organized, with full power and authority (corporate and other) to own, lease and operate their properties and conduct their businesses as described in the Prospectus andaggregate have a material adverse effect on the consolidated financial position, with respect to the Company, to execute and deliver, and perform the Company’s obligations under, this Agreement; stockholders' equity or results of operations of the Company and its Subsidiaries subsidiaries; and, to the best of the Company's knowledge, no such proceedings are duly qualified threatened or contemplated by governmental authorities or threatened by others.
(o) The Company is not an "investment company" or an entity "controlled" by an "investment company," as such terms are defined in the Investment Company Act of 1940, as amended.
(p) Except as set forth in the Prospectus Supplement, the Company and its subsidiaries (A) are in compliance with any and all applicable federal, state and local laws and regulations relating to do business as foreign corporations the protection of human health and safety, the environment or organizations in good standing in each state hazardous or toxic substances or wastes, pollutants or contaminants ("Environmental Laws"), (B) have received all permits, licenses or other jurisdiction approvals required of them under applicable Environmental Laws to conduct its respective business and (C) are in which their ownership compliance with all terms and conditions of any such permits, licenses or leasing of property or conduct of business legally requires such qualificationapprovals, except where the such noncompliance with Environmental Laws, failure to be so qualifiedreceive required permits, individually licenses or other approvals or failure to comply with the terms and conditions of such permits, licenses or approvals would not, singly or in the aggregate, would not have a Material Adverse Effect. The term “Material Adverse Effect” as used herein means any material adverse effect on the condition (financial or other), net worth, business, affairs, management, prospects, results of operations or cash flow of the Company and its Subsidiariessubsidiaries, taken as a whole.
Appears in 1 contract
Representations and Warranties by the Company. The Company hereby represents and warrants to Zindart as follows:
(i) The execution and delivery by IBI of this December 2001 Amendment and the issuance and delivery of the Converted Payables Common Stock and the Converted Obligations Common Stock have been duly authorized by all requisite corporate action, except that the amendment to IBI's articles necessary to authorize the increase in its common stock has not been approved by all necessary corporate action and such amendment has not been filed with the Secretary of State of the State of California. This December 2001 Amendment has been duly executed and delivered by IBI and constitutes the legal, valid and binding obligation of IBI, enforceable in accordance with its terms.
(ii) The Converted Payables Common Stock and the Converted Obligations Common Stock, when issued in accordance with the terms of this Agreement, will be free and clear of all liens, charges, restrictions, claims and encumbrances imposed by or through IBI and when so issued, will be duly authorized, validly issued, fully-paid and non-assessable shares of IBI common stock.
(iii) Just prior to the "First Closing" as contemplated under the Equity Financing, IBI will have no more than 8,475,000 shares of Common Stock calculated on a fully diluted basis, assuming the exercise of all options, warrants and other rights exercisable to purchase shares of Common Stock, not counting options to purchase an aggregate of 600,000 shares which are to be issued in connection with the Equity Financing to a director and an officer and the shares to be issued to Zindart hereunder. At the "First Closing" of the Equity Financing, Investor is to acquire 396,825 shares of IBI's Preferred Stock and at the "Second Closing," Investor is to acquire 1,269.841 shares of Preferred Stock, in each case each share of Preferred Stock is convertible into two (2) share of Common Stock. As part of the Equity Financing, Investor also has options to acquire up to 2,049,804 shares of Preferred Stock.
(iv) The Company represents and warrants to the Sales Agent, the Forward Seller that a majority of its issued and outstanding shares of Common Stock and the Forward Purchaser as issued and outstanding shares of the date hereof and as of each Representation Date (as defined below) on which a certificate is required Preferred Stock have all agreed to be delivered pursuant to Section 8(o) of this Agreement, as of that date on which any Placement Notice is given hereunder, as of the time of each sale of any Issuance Shares or Forward Hedge Shares pursuant to this Agreement (the “Applicable Time”) and as of each Settlement Date (as defined below), and agrees with the Sales Agent, the Forward Seller and the Forward Purchaser, as follows:
(1) The Company satisfies all of the requirements of the Securities Act for use of Form S-3 for the offering of the Shares contemplated hereby and the offering and sale of Shares contemplated hereby complies with the requirements of Rule 415 under the Securities Act. At the time of the initial filing of the Registration Statement, at the time of the most recent amendment thereto 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), at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Securities Act) made any offer relating to the Shares vote in reliance on the exemption of Rule 163 under the Securities Act and at the date hereof, the Company was and is a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act, including not having been and not being an “ineligible issuer,” as defined in Rule 405 under the Securities Act. The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 under the Securities Act, 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.” The Company has not received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting to the use of the automatic shelf registration statement form. The Company has paid or will pay the required Commission filing fees relating to the Shares within the time required by Rule 456(b)(1)(i) under the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Securities Act (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) under the Securities Act either in a post-effective amendment to the Registration Statement or on the cover page of the Prospectus).
(2) The Original Registration Statement became effective upon filing under Rule 462(e) under the Securities Act on February 12, 2020. 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 favor of the Company, are contemplated by the Commission, 's Amended and any request on the part Restated Articles of the Commission for additional information has been complied with.
(3) Any offer that Incorporation which is a written communication relating to the Shares made prior to the initial filing of the Registration Statement by the Company or any person acting on its behalf (within the meaning, for this paragraph only, of Rule 163(c) under the Securities Act) has been filed with the Commission in accordance with the exemption provided by Rule 163 under the Securities Act and otherwise complied with the requirements of Rule 163 under the Securities Act, including without limitation the legending requirement.
(4) The Company has delivered or made available on XXXXX to each of the Sales Agent and the Forward Seller one complete copy of the Registration Statement and a copy of each consent and certificate of experts filed as a part thereof, and conformed copies of the Registration Statement (without exhibits) and the Prospectus, as amended or supplemented, in such quantities and at such places as the Sales Agent or the Forward Seller, as applicable, has reasonably requested. The Prospectus delivered to the Sales Agent and the Forward Seller for use in connection with the offering of Shares will, at the time of such delivery, be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(5) At the respective times the Registration Statement and each amendment thereto became effective, at each deemed effective date with respect to the Sales Agent, the Forward Seller or the Forward Purchaser pursuant to Rule 430B(f)(2) under the Securities Act, as the case may be, the Registration Statement complied and will comply in all material respects with the requirements of the Securities Act, and did not 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. The preceding sentence does not apply to statements in or omissions from the Registration Statement or any amendment thereto in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, expressly for inclusion in any of the aforementioned documents.
(6) Neither the Prospectus nor any amendments or supplements thereto, at the time the Prospectus or any such amendment or supplement was issued, as of the date hereof, at each Representation Date, at each Applicable Time, and at each Settlement Date, as the case may be, included or will include an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make increase its authorized shares of Common Stock to permit the statements therein, conversions contemplated in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from the Prospectus, as amended or supplemented, in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, expressly for inclusion in any of the aforementioned documentsAgreement.
(7) Each document incorporated by reference in the Registration Statement or the Prospectus heretofore filed, when it was filed (or, if any amendment with respect to any such document was filed, when such amendment was filed), conformed in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder, and any further documents so filed and incorporated after the date of this Agreement will, when they are filed, conform in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder; no such document when it was filed (or, if an amendment with respect to any such document was filed, when such amendment was filed), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and no such document, when it is filed, will contain an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(8) Each Issuer Free Writing Prospectus (as defined herein), on its issue date, as of each Applicable Time, and as of each Settlement Date, or until any earlier date that the issuer notified or notifies the Sales Agent or the Forward Seller as described in Section 8(d) hereof, 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 incorporated document deemed to be a part thereof that has not been superseded or modified. The foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with written information furnished to the Company by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, specifically for use therein.
(9) This Agreement has been duly authorized, executed and delivered by the Company and this Agreement constitutes a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and by general principles of equity (the “Exceptions”). The Master Forward Confirmation will have been, as of its date, duly authorized, executed and delivered by the Company and when executed and delivered by the Forward Purchaser, such Master Forward Confirmation will constitute a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by the Exceptions.
(10) The Company and its “Subsidiaries” (as defined in Section 6(a)(13) hereof) have been duly incorporated or organized and are validly existing as corporations or organizations in good standing under the laws of the states or other jurisdictions in which they are incorporated or organized, with full power and authority (corporate and other) to own, lease and operate their properties and conduct their businesses as described in the Prospectus and, with respect to the Company, to execute and deliver, and perform the Company’s obligations under, this Agreement; the Company and its Subsidiaries are duly qualified to do business as foreign corporations or organizations in good standing in each state or other jurisdiction in which their ownership or leasing of property or conduct of business legally requires such qualification, except where the failure to be so qualified, individually or in the aggregate, would not have a Material Adverse Effect. The term “Material Adverse Effect” as used herein means any material adverse effect on the condition (financial or other), net worth, business, affairs, management, prospects, results of operations or cash flow of the Company and its Subsidiaries, taken as a whole.
Appears in 1 contract
Samples: Zindart Loan and Security Agreement (Intervisual Books Inc /Ca)
Representations and Warranties by the Company. The Company represents and warrants to the Sales Agent, the Forward Seller and the Forward Purchaser as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 8(o) of this Agreement, as of that date on which any Placement Notice is given hereunder, as of the time of each sale of any Issuance Shares or Forward Hedge Shares pursuant to this Agreement (the “Applicable Time”) and as of each Settlement Date (as defined below)to, and agrees with the Sales Agentwith, the Forward Seller and the Forward Purchaser, as followseach Underwriter that:
(1a) The Company satisfies all of meets the requirements of the Securities Act for use of Form S-3 under the Securities Act of 1933, as amended (the "Act") and has filed with the Securities and Exchange Commission (the "Commission") a registration statement on such Form, including a prospectus, for the registration under the Act of the Debt Securities, which registration statement has become effective. Such registration statement and prospectus may have been amended or supplemented from time to time prior to the date of this Agreement (which date is set forth in Schedule I hereto). Any such amendment or supplement was filed with the Commission and any such amendment has become effective. The Company will file with the Commission a prospectus supplement (the "Prospectus Supplement") relating to the Debt Securities pursuant to Rule 424 and/or Rule 434 under the Act. Each prospectus used before such Prospectus Supplement has been filed that was used after the registration statement has become effective and prior to the execution and delivery of this Agreement, is herein called a "preliminary prospectus". Copies of such registration statement, any preliminary prospectus and prospectus, any such amendment or supplement and all documents incorporated by reference therein which were filed with the Commission on or prior to the date of this Agreement have been delivered to you and copies of the Prospectus Supplement will be delivered to you promptly after it is filed with the Commission. Such registration statement, as amended prior to the date of this Agreement, and such prospectus, as amended and supplemented prior to the date of this Agreement and as supplemented by the Prospectus Supplement, are hereinafter called the "Registration Statement" and the "Prospectus", respectively. Any reference herein to the Registration Statement or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 which were filed under the Securities Exchange Act of 1934, as amended (the "Exchange Act") on or before the date of this Agreement and, if the Company files any document pursuant to the Exchange Act after the date of this Agreement and prior to the termination of the offering of the Shares contemplated hereby Debt Securities by the Underwriters, which documents are deemed to be incorporated by reference into the Prospectus, the term "Prospectus" shall refer also to said prospectus as supplemented by the documents so filed from and after the offering and sale of Shares contemplated hereby complies time said documents are filed with the requirements of Rule 415 under the Securities ActCommission. At the time There are no contracts or documents of the initial filing Company that are required to be filed as exhibits to the Registration Statement or any documents incorporated by reference therein by the Act, the Exchange Act or the rules and regulations thereunder which have not been so filed.
(b) No order preventing or suspending the use of the Prospectus or the Registration Statement has been issued by the Commission and the Registration Statement, at the time date of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective amendmentthis Agreement, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Securities Act) made any offer relating to the Shares in reliance on the exemption of Rule 163 under the Securities Act and at the date hereof, the Company was and is a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act, including not having been and not being an “ineligible issuer,” as defined in Rule 405 under the Securities Act. The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 under the Securities Act, 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.” The Company has not received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting to the use of the automatic shelf registration statement form. The Company has paid or will pay the required Commission filing fees relating to the Shares within the time required by Rule 456(b)(1)(i) under the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Securities Act (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) under the Securities Act either in a post-effective amendment to the Registration Statement or on the cover page of the Prospectus).
(2) The Original Registration Statement became effective upon filing under Rule 462(e) under the Securities Act on February 12, 2020. 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 by the Commission, and any request on the part of the Commission for additional information has been complied with.
(3) Any offer that is a written communication relating to the Shares made prior to the initial filing of the Registration Statement by the Company or any person acting on its behalf (within the meaning, for this paragraph only, of Rule 163(c) under the Securities Act) has been filed with the Commission in accordance with the exemption provided by Rule 163 under the Securities Act and otherwise complied with the requirements of Rule 163 under the Securities Act, including without limitation the legending requirement.
(4) The Company has delivered or made available on XXXXX to each of the Sales Agent and the Forward Seller one complete copy of the Registration Statement and a copy of each consent and certificate of experts filed as a part thereof, and conformed copies of the Registration Statement (without exhibits) and the Prospectus, as amended or supplemented, in such quantities and at such places as the Sales Agent or the Forward Seller, as applicable, has reasonably requested. The Prospectus delivered to the Sales Agent and the Forward Seller for use in connection with the offering of Shares will, at the time of such delivery, be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(5) At the respective times the Registration Statement and each amendment thereto became effective, at each deemed effective date with respect to the Sales Agent, the Forward Seller or the Forward Purchaser pursuant to Rule 430B(f)(2) under the Securities Act, as the case may be, the Registration Statement complied and will comply in all material respects with the requirements of the Securities Act, the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act") and the respective rules and regulations of the Commission thereunder and did not and will not contain 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. The preceding sentence does not apply to statements in or omissions from the Registration Statement or any amendment thereto in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, expressly for inclusion in any of the aforementioned documents.
(6) Neither the Prospectus nor any amendments or supplements thereto, at the time the Prospectus or any such amendment or supplement was issued, as of the date hereof, at each Representation Date, at each Applicable Time, and at each Settlement Date, as the case may be, included or will include an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from the Prospectus, as amended or supplemented, in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, expressly for inclusion in any of the aforementioned documents.
(7) Each document incorporated by reference in the Registration Statement or the Prospectus heretofore filed, when it was filed (or, if any amendment with respect to any such document was filed, when such amendment was filed), conformed in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder, and any further documents so filed and incorporated after the date of this Agreement will, when they are filed, conform in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder; no such document when it was filed (or, if an amendment with respect to any such document was filed, when such amendment was filed), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and, at the time the Prospectus Supplement is filed with the Commission and no such documentat the Closing Date (as hereinafter defined), when it is filed, the Prospectus will comply in all material respects with the Act and the rules and regulations of the Commission thereunder and will not contain an any untrue statement of a material fact or will omit to state a any material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(8) Each Issuer Free Writing Prospectus (as defined herein), on its issue date, as of each Applicable Time, and as of each Settlement Date, or until any earlier date ; provided that the issuer notified Company makes no representations or notifies warranties as to (A) that part of the Sales Agent Registration Statement which shall constitute the Statement of Eligibility (Form T-1) under the Trust Indenture Act of the Trustee or the Forward Seller as described in Section 8(d(B) hereof, did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in or omitted from the Registration Statement or the Prospectus in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of any Underwriter through the Representatives specifically for use in the Registration Statement or Prospectus. Each preliminary prospectus and the prospectus filed as part of the Registration Statement as originally filed or as part of any amendment thereto, or filed pursuant to Rule 424, complied when so filed in all material respects with the Act and the rules and regulations of the Commission thereunder.
(c) The documents incorporated by reference in the Prospectus, including when they were filed with the Commission, conformed in all material respects to the requirements of the Exchange Act and the rules and regulations of the Commission thereunder, and any documents so filed and incorporated document deemed by reference subsequent to the date of this Agreement will, when they are filed with the Commission, conform in all material respects to the requirements of the Exchange Act, and the rules and regulations of the Commission thereunder; and none of such documents include or will include any untrue statement of a material fact or omit or will omit to state any 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.
(d) Xxxxxx Xxxxxxxx LLP, which audited the financial statements incorporated by reference in the Registration Statement, is an independent public accountant as required by the Act and the rules and regulations of the Commission thereunder.
(e) The financial statements of the Company filed as a part thereof that of or incorporated by reference in the Registration Statement or Prospectus fairly present the financial position of the Company as of the dates indicated and the results of their operations and changes in financial position for the periods specified, and have been prepared in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods involved, except as disclosed in the Prospectus Supplement.
(f) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of New Mexico with due corporate authority to carry on the business in which it is engaged and to own and operate the properties used by it in such business, as described in the Prospectus; the Company is qualified to do business as a foreign corporation and is in good standing under the laws of the States of Texas, Oklahoma and Kansas; and the Company is not required by the nature of its business to be licensed or qualified as a foreign corporation in any other state or jurisdiction; and, except as set forth in the Prospectus Supplement, the Company has all material licenses and approvals required at the date hereof to conduct its business.
(g) The Company has no subsidiaries.
(h) The Company has not sustained since the date of the latest audited financial statements included or incorporated by reference in the Prospectus any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus Supplement; and, since the respective dates as of which information is given in the Registration Statement and the Prospectus Supplement, the Company has not incurred any liabilities or obligations, direct or contingent, or entered into any transactions, not in the ordinary course of business, which are material to the Company, and there has not been superseded any material change in the capital stock or modified. The foregoing sentence does not apply to statements long-term debt of the Company or any material adverse change, or any development involving a prospective material adverse change, in or omissions from affecting the general affairs, management, financial position, stockholders' equity or results of operations of the Company, otherwise than as set forth or contemplated in the Prospectus Supplement.
(i) Neither the execution and delivery of this Agreement and the Indenture, the issuance and delivery of the Debt Securities, the consummation of the transactions herein contemplated, the fulfillment of the terms hereof, nor compliance with the terms and provisions of this Agreement, the Debt Securities and the Indenture will conflict with, or result in the breach of, any Issuer Free Writing Prospectus based upon and of the terms, provisions or conditions of the Articles of Incorporation, as amended, or by-laws of the Company, or of any contract, agreement or instrument to which the Company is a party or in conformity with written information furnished which the Company has a beneficial interest or by which the Company is bound or of any order, rule or regulation applicable to the Company by of any court or of any federal or state regulatory body or administrative agency or other governmental body having jurisdiction over the Sales Agent, the Forward Seller Company or the Forward Purchaser, as applicable, specifically for use thereinover its properties.
(9j) This The Debt Securities have been duly authorized for issuance and sale pursuant to this Agreement and, when executed and authenticated in accordance with the Indenture and delivered and paid for as provided herein, will be duly issued and will constitute valid and binding obligations of the Company enforceable in accordance with their terms, except as limited by bankruptcy, insolvency and other laws affecting enforcement of creditors' rights, and will be entitled to the benefits of the Indenture which will be substantially in the form heretofore delivered to you.
(k) The Indenture has been duly authorizedand validly authorized by the Company and, when duly executed and delivered by the Company Company, assuming due authorization, execution and this Agreement constitutes delivery thereof by the Trustee, will constitute a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability enforcement thereof may be limited by bankruptcy, insolvencyinsolvency or other laws affecting enforcement of creditors' rights.
(l) The Company has good and valid title to all real and fixed property and leasehold rights which are owned by it, fraudulent conveyancesubject only to taxes and assessments not yet delinquent; as to parts of the Company's property, reorganizationcertain easements, moratorium conditions, restrictions, leases, and other similar laws relating to or affecting creditors’ rights generally and by general principles encumbrances which do not affect the Company's use of equity (such property in the “Exceptions”). The Master Forward Confirmation will have been, as usual course of its datebusiness, duly authorizedand certain minor defects in titles which are not material, executed and delivered defects in titles to certain properties which are not essential to the Company's business; and mechanics' lien claims being contested or not of record or for the satisfaction or discharge of which adequate provision has been made by the Company; and any real property and buildings held under lease by the Company is held by it under valid, subsisting and when executed enforceable leases with such exceptions as are not material and delivered do not interfere with the use made and proposed to be made of such property and buildings by the Forward PurchaserCompany.
(m) Other than as set forth or contemplated in the Prospectus as of the date hereof, such Master Forward Confirmation will constitute there are no legal or governmental proceedings pending to which the Company is a valid and legally binding obligation party or of which any property of the Company enforceable against is the Company in accordance with its termssubject which, except as enforceability may be limited by the Exceptions.
(10) The Company and its “Subsidiaries” (as defined in Section 6(a)(13) hereof) have been duly incorporated or organized and are validly existing as corporations or organizations in good standing under the laws of the states or other jurisdictions in which they are incorporated or organized, with full power and authority (corporate and other) to own, lease and operate their properties and conduct their businesses as described in the Prospectus and, with respect if determined adversely to the Company, to execute and deliverwould individually or in the aggregate have a material adverse effect on the financial position, and perform stockholders' equity or results of operations of the Company’s obligations under; and, this Agreement; to the best of the Company's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others.
(n) The Company is not an "investment company" or an entity "controlled" by an "investment company," as such terms are defined in the Investment Company Act of 1940, as amended.
(o) Except as set forth in the Prospectus Supplement, the Company (A) is in compliance with any and its Subsidiaries are duly qualified all applicable federal, state and local laws and regulations relating to do business as foreign corporations the protection of human health and safety, the environment or organizations in good standing in each state hazardous or toxic substances or wastes, pollutants or contaminants ("Environmental Laws"), (B) has received all permits, licenses or other jurisdiction approvals required of it under applicable Environmental Laws to conduct its business and (C) is in which their ownership compliance with all terms and conditions of any such permits, licenses or leasing of property or conduct of business legally requires such qualificationapprovals, except where the such noncompliance with Environmental Laws, failure to be so qualifiedreceive required permits, individually licenses or other approvals or failure to comply with the terms and conditions of such permits, licenses or approvals would not, singly or in the aggregate, would not have a Material Adverse Effect. The term “Material Adverse Effect” as used herein means any material adverse effect on the condition Company.
(financial or other), net worth, business, affairs, management, prospects, results of operations or cash flow q) All approvals and authorizations from the New Mexico Public Regulation Commission which are required for the valid authorization and issuance of the Debt Securities and the valid sale thereof under this Agreement, have been obtained and are in full force and effect and the approval of no other governmental or regulatory authority or body is necessary in connection with the issuance and sale by the Company of the Debt Securities pursuant to this Agreement, except that there must be compliance with the securities laws in the jurisdictions in which the Debt Securities are to be offered and sold.
(r) The franchises held by the Company, together with the applicable Certificates of Convenience and Necessity issued by the New Mexico Public Regulation Commission, give the Company all necessary authority for the maintenance and operation of its Subsidiariesproperties and business as now conducted, taken as a wholeand are free from burdensome restrictions or conditions of an unusual character.
Appears in 1 contract
Samples: Underwriting Agreement (Southwestern Public Service Co)
Representations and Warranties by the Company. The Company represents and warrants to the Sales Agent, the Forward Seller and the Forward Purchaser each Underwriter as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 8(o) of this Agreement, as of that date on which any Placement Notice is given hereunderhereof, as of the time of each sale of any Issuance Shares or Forward Hedge Shares pursuant to this Agreement (the “Applicable Time”) and as of each Settlement Date Time (as defined below), as of the Closing Time referred to in Section 2(c) hereof, and as of each Date of Delivery (if any) referred to in Section 2(b) hereof, and agrees with the Sales Agent, the Forward Seller and the Forward Purchasereach Underwriter, as follows:
(1) : The Company satisfies all of meets the requirements of the Securities Act for use of Form S-3 for registration under the offering of 1933 Act. The Registration Statement was filed by the Shares contemplated hereby and the offering and sale of Shares contemplated hereby complies Company with the requirements of Rule 415 under the Securities Act. At the time of the initial filing of the Registration Statement, at the time of the most recent amendment thereto 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 Commission not earlier than three years prior to Section 13 or 15(d) of the Exchange Act or form of prospectus), at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Securities Act) made any offer relating to the Shares in reliance on the exemption of Rule 163 under the Securities Act and at the date hereof, the Company was and is a “well-known seasoned issuer” as defined in Rule 405 . The Registration Statement became effective under the Securities Act, including not having been and not being an “ineligible issuer,” as defined in Rule 405 under 1933 Act upon filing with the Securities ActCommission. The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 under the Securities Act405, and the Shares, since their registration on the Registration Statement, Securities have been and remain eligible for registration by the Company on a Rule 405 “an automatic shelf registration statement.” The Company has not received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting to the use of the automatic shelf registration statement form. The Company has paid or will pay the required Commission filing fees relating to the Shares within the time required by Rule 456(b)(1)(i) under the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Securities Act (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) under the Securities Act either in a post-effective amendment to the Registration Statement or on the cover page of the Prospectus).
(2) The Original Registration Statement became effective upon filing under Rule 462(e) under the Securities Act on February 12, 2020. No stop order suspending the effectiveness of the Registration Statement or any part thereof has been issued under the Securities 1933 Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Company, are contemplated by the CommissionCommission nor any state or other jurisdiction or regulatory body, and no notice of objection of the Commission to the use of such registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) of the 1933 Act Regulations has been received by the Company. No order preventing or suspending the use of any preliminary prospectus or the Prospectus has been issued and no proceeding for that purpose has been instituted or, to the knowledge of the Company, threatened or contemplated by the Commission or any state or other jurisdiction or regulatory body. Any request on the part of the Commission Commission, any state or other jurisdiction or other regulatory body for additional information has been complied with.
(3) Any offer that is a written communication relating . At the respective times the Registration Statement and any post-effective amendments thereto became effective, at each deemed effective date with respect to the Shares made prior Underwriters and the Securities pursuant to Rule 430B(f)(2), and at the initial filing Closing Time (and, if any Option Securities are purchased, at the Date of Delivery), the Registration Statement and any amendments and supplements thereto complied, complies and will comply in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations, and did not, does not 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 in order to make the statements therein not misleading. Neither the Prospectus nor any amendments or supplements thereto, at the time the Prospectus or any such amendment or supplement was issued, at the Closing Time or at any Date of Delivery, included, includes or will include an untrue statement of a material fact or omitted, omits or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Any preliminary prospectus (including the prospectus filed as part of the Registration Statement by the Company or any person acting on its behalf (within the meaning, for this paragraph only, of Rule 163(camendment thereto) under the Securities Act) has been complied when so filed in all material respects with the Commission in accordance with the exemption provided by Rule 163 under the Securities 1933 Act and otherwise complied with the requirements of Rule 163 under 1933 Act Regulations and any such preliminary prospectus and the Securities Act, including without limitation the legending requirement.
(4) The Company has Prospectus delivered or made available on XXXXX to each of the Sales Agent and the Forward Seller one complete copy of the Registration Statement and a copy of each consent and certificate of experts filed as a part thereof, and conformed copies of the Registration Statement (without exhibits) and the Prospectus, as amended or supplemented, in such quantities and at such places as the Sales Agent or the Forward Seller, as applicable, has reasonably requested. The Prospectus delivered to the Sales Agent and the Forward Seller Underwriters for use in connection with the offering of Shares Securities was and will, at the time of such delivery, be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
T. As of the Applicable Time, each Issuer-Represented Free Writing Prospectus (5as defined below) At the respective times the Registration Statement and each amendment thereto became effective, at each deemed effective date with respect to the Sales Agentidentified on Schedule B, the Forward Seller or Statutory Prospectus (as defined below) and the Forward Purchaser pursuant information agreed to Rule 430B(f)(2) under in writing by the Securities Act, Company and the Underwriters as the case may be, information to be conveyed orally by the Registration Statement complied and will comply in all material respects with the requirements Underwriters to purchasers of the Securities Actat the Applicable Time as set forth on Schedule B, and all considered together (collectively, the “General Disclosure Package”), did not and will not contain 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. The preceding sentence does not apply to statements in or omissions from the Registration Statement or any amendment thereto in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, expressly for inclusion in any of the aforementioned documents.
(6) Neither the Prospectus nor any amendments or supplements thereto, at the time the Prospectus or any such amendment or supplement was issued, as of the date hereof, at each Representation Date, at each Applicable Time, and at each Settlement Date, as the case may be, included or will include an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The representations and warranties in the preceding sentence does three paragraphs shall not apply to statements in or omissions from the ProspectusRegistration Statement, as amended or supplementedany post-effective amendment thereto, or the Prospectus or the General Disclosure Package, or any amendments or supplements thereto, made in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, Representative on behalf of the Forward Seller or the Forward Purchaser, as applicable, Underwriters expressly for inclusion in any of the aforementioned documents.
(7) Each document incorporated by reference use in the Registration Statement or any post-effective amendment thereto, or the Prospectus heretofore filedor the General Disclosure Package, when it was filed (or, if or any amendment with respect to any such document was filed, when such amendment was filed), conformed in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder, and any further documents so filed and incorporated after the date of this Agreement will, when they are filed, conform in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder; no such document when it was filed (or, if an amendment with respect to any such document was filed, when such amendment was filed), contained an untrue statement of a material fact amendments or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and no such document, when it is filed, will contain an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(8) Each Issuer Free Writing Prospectus (as defined herein), on its issue datesupplements thereto, as of each Applicable Time, the case may be. As used in this subsection and as of each Settlement Date, or until any earlier date that the issuer notified or notifies the Sales Agent or the Forward Seller as described elsewhere in Section 8(d) hereof, 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 incorporated document deemed to be a part thereof that has not been superseded or modified. The foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with written information furnished to the Company by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, specifically for use therein.
(9) This Agreement has been duly authorized, executed and delivered by the Company and this Agreement constitutes a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and by general principles of equity (the “Exceptions”). The Master Forward Confirmation will have been, as of its date, duly authorized, executed and delivered by the Company and when executed and delivered by the Forward Purchaser, such Master Forward Confirmation will constitute a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by the Exceptions.
(10) The Company and its “Subsidiaries” (as defined in Section 6(a)(13) hereof) have been duly incorporated or organized and are validly existing as corporations or organizations in good standing under the laws of the states or other jurisdictions in which they are incorporated or organized, with full power and authority (corporate and other) to own, lease and operate their properties and conduct their businesses as described in the Prospectus and, with respect to the Company, to execute and deliver, and perform the Company’s obligations under, this Agreement; the Company and its Subsidiaries are duly qualified to do business as foreign corporations or organizations in good standing in each state or other jurisdiction in which their ownership or leasing of property or conduct of business legally requires such qualification, except where the failure to be so qualified, individually or in the aggregate, would not have a Material Adverse Effect. The term “Material Adverse Effect” as used herein means any material adverse effect on the condition (financial or other), net worth, business, affairs, management, prospects, results of operations or cash flow of the Company and its Subsidiaries, taken as a whole.:
Appears in 1 contract
Representations and Warranties by the Company. The Company represents and warrants to the Sales Agent, the Forward Seller and the Forward Purchaser as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 8(o) of this Agreement, as of that date on which any Placement Notice is given hereunder, as of the time of each sale of any Issuance Shares or Forward Hedge Shares pursuant to this Agreement (the “Applicable Time”) and as of each Settlement Date (as defined below)to, and agrees with the Sales Agentwith, the Forward Seller and the Forward Purchaser, as followseach Underwriter that:
(1a) The Company satisfies all of meets the requirements of the Securities Act for use of Form S-3 under the Securities Act of 1933, as amended (the "Act") and has filed with the Securities and Exchange Commission (the "Commission") a registration statement on such Form, including a prospectus, for the registration under the Act of the Debt Securities, which registration statement has become effective. Such registration statement and prospectus may have been amended or supplemented from time to time prior to the date of this Agreement (which date is set forth in Schedule I hereto). Any such amendment or supplement was filed with the Commission and any such amendment has become effective. The Company will file with the Commission a prospectus supplement (the "Prospectus Supplement") relating to the Debt Securities pursuant to Rule 424 and/or Rule 434 under the Act. Copies of such registration statement and prospectus, any such amendment or supplement and all documents incorporated by reference therein which were filed with the Commission on or prior to the date of this Agreement have been delivered to you and copies of the Prospectus Supplement will be delivered to you promptly after it is filed with the Commission. Such registration statement, as amended prior to the date of this Agreement, and such prospectus, as amended and supplemented prior to the date of this Agreement and as supplemented by the Prospectus Supplement, are hereinafter called the "Registration Statement" and the "Prospectus", respectively. Any reference herein to the Registration Statement or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 which were filed under the Securities Exchange Act of 1934, as amended (the "Exchange Act") on or before the date of this Agreement and, if the Company files any document pursuant to the Exchange Act after the date of this Agreement and prior to the termination of the offering of the Shares contemplated hereby Debt Securities by the Underwriters, which documents are deemed to be incorporated by reference into the Prospectus, the term "Prospectus" shall refer also to said prospectus as supplemented by the documents so filed from and after the offering and sale of Shares contemplated hereby complies time said documents are filed with the requirements of Rule 415 under the Securities ActCommission. At the time There are no contracts or documents of the initial filing Company or any of its subsidiaries that are required to be filed as exhibits to the Registration Statement or any documents incorporated by reference therein by the Act, the Exchange Act or the rules and regulations thereunder which have not been so filed.
(b) No order preventing or suspending the use of the Prospectus or the Registration Statement has been issued by the Commission and the Registration Statement, at the time date of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective amendmentthis Agreement, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Securities Act) made any offer relating to the Shares in reliance on the exemption of Rule 163 under the Securities Act and at the date hereof, the Company was and is a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act, including not having been and not being an “ineligible issuer,” as defined in Rule 405 under the Securities Act. The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 under the Securities Act, 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.” The Company has not received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting to the use of the automatic shelf registration statement form. The Company has paid or will pay the required Commission filing fees relating to the Shares within the time required by Rule 456(b)(1)(i) under the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Securities Act (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) under the Securities Act either in a post-effective amendment to the Registration Statement or on the cover page of the Prospectus).
(2) The Original Registration Statement became effective upon filing under Rule 462(e) under the Securities Act on February 12, 2020. 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 by the Commission, and any request on the part of the Commission for additional information has been complied with.
(3) Any offer that is a written communication relating to the Shares made prior to the initial filing of the Registration Statement by the Company or any person acting on its behalf (within the meaning, for this paragraph only, of Rule 163(c) under the Securities Act) has been filed with the Commission in accordance with the exemption provided by Rule 163 under the Securities Act and otherwise complied with the requirements of Rule 163 under the Securities Act, including without limitation the legending requirement.
(4) The Company has delivered or made available on XXXXX to each of the Sales Agent and the Forward Seller one complete copy of the Registration Statement and a copy of each consent and certificate of experts filed as a part thereof, and conformed copies of the Registration Statement (without exhibits) and the Prospectus, as amended or supplemented, in such quantities and at such places as the Sales Agent or the Forward Seller, as applicable, has reasonably requested. The Prospectus delivered to the Sales Agent and the Forward Seller for use in connection with the offering of Shares will, at the time of such delivery, be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(5) At the respective times the Registration Statement and each amendment thereto became effective, at each deemed effective date with respect to the Sales Agent, the Forward Seller or the Forward Purchaser pursuant to Rule 430B(f)(2) under the Securities Act, as the case may be, the Registration Statement complied and will comply in all material respects with the requirements of the Securities Act, the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act") and the respective rules and regulations of the Commission thereunder and did not and will not contain 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. The preceding sentence does not apply to statements in or omissions from the Registration Statement or any amendment thereto in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, expressly for inclusion in any of the aforementioned documents.
(6) Neither the Prospectus nor any amendments or supplements thereto, at the time the Prospectus or any such amendment or supplement was issued, as of the date hereof, at each Representation Date, at each Applicable Time, and at each Settlement Date, as the case may be, included or will include an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from the Prospectus, as amended or supplemented, in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, expressly for inclusion in any of the aforementioned documents.
(7) Each document incorporated by reference in the Registration Statement or the Prospectus heretofore filed, when it was filed (or, if any amendment with respect to any such document was filed, when such amendment was filed), conformed in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder, and any further documents so filed and incorporated after the date of this Agreement will, when they are filed, conform in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder; no such document when it was filed (or, if an amendment with respect to any such document was filed, when such amendment was filed), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and, at the time the Prospectus Supplement is filed with the Commission and no such documentat the Closing Date (as hereinafter defined), when it is filed, the Prospectus will comply in all material respects with the Act and the rules and regulations of the Commission thereunder and will not contain an any untrue statement of a material fact or will omit to state a any material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(8) Each Issuer Free Writing Prospectus (as defined herein), on its issue date, as of each Applicable Time, and as of each Settlement Date, or until any earlier date ; PROVIDED that the issuer notified Company makes no representations or notifies warranties as to (A) that part of the Sales Agent Registration Statement which shall constitute the Statements of Eligibility (Forms T-1) under the Trust Indenture Act of the Trustee or the Forward Seller as described in Section 8(d(B) hereof, did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in or omitted from the Registration Statement or the Prospectus in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of any Underwriter through the Representatives specifically for use in the Registration Statement or Prospectus.
(c) The documents incorporated by reference in the Prospectus, including when they were filed with the Commission, conformed in all material respects to the requirements of the Exchange Act and the rules and regulations of the Commission thereunder, and any documents so filed and incorporated document deemed by reference subsequent to the date of this Agreement will, when they are filed with the Commission, conform in all material respects to the requirements of the Exchange Act, and the rules and regulations of the Commission thereunder; and none of such documents include or will include any untrue statement of a material fact or omit or will omit to state any 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.
(d) PricewaterhouseCoopers LLP and Xxxxxx Xxxxxxxx LLP which each audited certain of the financial statements incorporated by reference in the Registration Statement, are each an independent public accountant as required by the Act and the rules and regulations of the Commission thereunder.
(e) The financial statements of the Company and its consolidated subsidiaries filed as a part thereof that of or incorporated by reference in the Registration Statement or Prospectus fairly present the financial position of the Company and its consolidated subsidiaries as of the dates indicated and the results of their operations and changes in financial position for the periods specified, and have been prepared in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods involved, except as disclosed in the Prospectus Supplement. The financial statements of New Century Energies and its consolidated subsidiaries filed as a part of or incorporated by reference in the Registration Statement or Prospectus fairly present the financial position of New Century Energies and its consolidated subsidiaries as of the dates indicated and the results of their operations and changes in financial position for the periods specified, and have been prepared in conformity with generally accepted accounting principles applied in a consistent basis throughout the periods involved, except as described in the Prospectus Supplement.
(f) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Minnesota with due corporate authority to carry on the business in which it is engaged and to own and operate the properties used by it in such business, as described in the Prospectus; the Company is qualified to do business as a foreign corporation and is in good standing under the laws of the States of North Dakota, South Dakota and Colorado; and the Company is not required by the nature of its business to be licensed or qualified as a foreign corporation in any other state or jurisdiction; and, except as set forth in the Prospectus Supplement, the Company has all material licenses and approvals required at the date hereof to conduct its business.
(g) Each subsidiary of the Company named in Exhibit 21.01 to the Company's most recent Annual Report on Form 10-K and in New Century Energies' most recent Annual Report on Form 10-K ("Significant Subsidiary") has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation and is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which it owns or leases substantial properties or in which the conduct of its business requires such qualification; all of the issued and outstanding capital stock of each such subsidiary has been duly authorized and validly issued and is fully paid and non-assessable; and the capital stock of each such subsidiary owned by the Company, directly or through subsidiaries, is owned free and clear of any pledge, lien, encumbrance, claim or equity.
(h) Neither the Company nor any of its subsidiaries has sustained since the date of the latest audited financial statements included or incorporated by reference in the Prospectus any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus Supplement; and, since the respective dates as of which information is given in the Registration Statement and the Prospectus Supplement, neither the Company nor any of its subsidiaries has incurred any liabilities or obligations, direct or contingent, or entered into any transactions, not in the ordinary course of business, which are material to the Company and its subsidiaries, and there has not been superseded any material change in the capital stock or modified. The foregoing sentence does not apply to statements long-term debt of the Company or any of its subsidiaries or any material adverse change, or any development involving a prospective material adverse change, in or omissions from affecting the general affairs, management, financial position, stockholders' equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Prospectus Supplement.
(i) Neither the execution and delivery of this Agreement and the Indenture, the issuance and delivery of the Debt Securities, the consummation of the transactions herein contemplated, the fulfillment of the terms hereof, nor compliance with the terms and provisions of this Agreement, the Debt Securities and the Indenture will conflict with, or result in the breach of, any Issuer Free Writing Prospectus based upon and of the terms, provisions or conditions of the Restated Articles of Incorporation, as amended, or by-laws of the Company, or of any contract, agreement or instrument to which the Company is a party or in conformity with written information furnished which the Company has a beneficial interest or by which the Company is bound or of any order, rule or regulation applicable to the Company by of any court or of any federal or state regulatory body or administrative agency or other governmental body having jurisdiction over the Sales Agent, the Forward Seller Company or the Forward Purchaser, as applicable, specifically for use thereinover its properties.
(9j) This The Debt Securities have been duly authorized for issuance and sale pursuant to this Agreement and, when executed and authenticated in accordance with the Indenture and delivered and paid for as provided herein, will be duly issued and will constitute valid and binding obligations of the Company enforceable in accordance with their terms, except as limited by bankruptcy, insolvency and other laws affecting enforcement of creditors' rights, and will be entitled to the benefits of the Indenture which will be substantially in the form heretofore delivered to you.
(k) The Indenture has been duly authorizedand validly authorized by the Company and, when duly executed and delivered by the Company Company, assuming due authorization, execution and this Agreement constitutes delivery thereof by the Trustee, will constitute a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability enforcement thereof may be limited by bankruptcy, insolvencyinsolvency or other laws affecting enforcement of creditors' rights.
(l) The Securities and Exchange Commission has issued a financing order under the Public Utility Holding Company Act of 1935, fraudulent conveyancewhich order authorizes the issuance of the Debt Securities, reorganizationand no other approval of any regulatory public body, moratorium state or federal, is, or will be at the Closing Date (as hereinafter defined), necessary in connection with the issuance and sale of the Debt Securities pursuant to this Agreement, other than approvals that may be required under state securities laws.
(m) The Company has good and valid title to all real and fixed property and leasehold rights which are owned by it, subject only to taxes and assessments not yet delinquent; as to parts of the Company's property, certain easements, conditions, restrictions, leases, and similar laws relating to or affecting creditors’ rights generally and by general principles encumbrances which do not affect the Company's use of equity (such property in the “Exceptions”). The Master Forward Confirmation will have been, as usual course of its datebusiness, duly authorizedand certain minor defects in titles which are not material, executed and delivered defects in titles to certain properties which are not essential to the Company's business; and mechanics' lien claims being contested or not of record or for the satisfaction or discharge of which adequate provision has been made by the Company; and any real property and buildings held under lease by the Company is held by it under valid, subsisting and when executed enforceable leases with such exceptions as are not material and delivered do not interfere with the use made and proposed to be made of such property and buildings by the Forward PurchaserCompany.
(n) Other than as set forth or contemplated in the Prospectus as of the date hereof, such Master Forward Confirmation will constitute there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a valid and legally binding obligation party or of which any property of the Company enforceable against or any of its subsidiaries is the subject which, if determined adversely to the Company in accordance with or any of its termssubsidiaries, except as enforceability may be limited by the Exceptions.
(10) The Company and its “Subsidiaries” (as defined in Section 6(a)(13) hereof) have been duly incorporated would individually or organized and are validly existing as corporations or organizations in good standing under the laws of the states or other jurisdictions in which they are incorporated or organized, with full power and authority (corporate and other) to own, lease and operate their properties and conduct their businesses as described in the Prospectus andaggregate have a material adverse effect on the consolidated financial position, with respect to the Company, to execute and deliver, and perform the Company’s obligations under, this Agreement; stockholders' equity or results of operations of the Company and its Subsidiaries subsidiaries; and, to the best of the Company's knowledge, no such proceedings are duly qualified threatened or contemplated by governmental authorities or threatened by others.
(o) The Company is not an "investment company" or an entity "controlled" by an "investment company," as such terms are defined in the Investment Company Act of 1940, as amended.
(p) Except as set forth in the Prospectus Supplement, the Company and its subsidiaries (A) are in compliance with any and all applicable federal, state and local laws and regulations relating to do business as foreign corporations the protection of human health and safety, the environment or organizations in good standing in each state hazardous or toxic substances or wastes, pollutants or contaminants ("Environmental Laws"), (B) have received all permits, licenses or other jurisdiction approvals required of them under applicable Environmental Laws to conduct its respective business and (C) are in which their ownership compliance with all terms and conditions of any such permits, licenses or leasing of property or conduct of business legally requires such qualificationapprovals, except where the such noncompliance with Environmental Laws, failure to be so qualifiedreceive required permits, individually licenses or other approvals or failure to comply with the terms and conditions of such permits, licenses or approvals would not, singly or in the aggregate, would not have a Material Adverse Effect. The term “Material Adverse Effect” as used herein means any material adverse effect on the condition (financial or other), net worth, business, affairs, management, prospects, results of operations or cash flow of the Company and its Subsidiariessubsidiaries, taken as a whole.
Appears in 1 contract
Representations and Warranties by the Company. The Company represents and warrants Co-Issuer, jointly and severally, represent and warrant to the Sales AgentDealer Managers, the Forward Seller and the Forward Purchaser as of the date hereof hereof, as of each date that any Tender Documents are published, sent, given or otherwise distributed (each a “Mailing Date”), and as of each Representation Date (as defined below) the closing date of the Tender Offer on which a certificate is required to be delivered the Notes are purchased by the Company pursuant to Section 8(othe Tender Offer (the “Closing Date”) that:
(a) Each of the Company and Co-Issuer has been duly formed or incorporated and is validly existing as a limited partnership or corporation and in good standing under the laws of the jurisdiction of its formation or incorporation.
(b) Each of the Company and Co-Issuer has all necessary corporate or limited partnership power and authority to execute and deliver this Agreement, and to perform all its obligations hereunder and to make and consummate the Tender Offer in accordance with its terms.
(c) Each of the Company and the Co-Issuer has taken all necessary action to authorize the making and consummation of the Tender Offer and the execution, delivery and performance by the Company of this Agreement, as of that date on which any Placement Notice is given hereunder, as of the time of each sale of any Issuance Shares or Forward Hedge Shares pursuant to ; and this Agreement (the “Applicable Time”) has been duly executed and as of each Settlement Date (as defined below), and agrees with the Sales Agent, the Forward Seller and the Forward Purchaser, as follows:
(1) The Company satisfies all of the requirements of the Securities Act for use of Form S-3 for the offering of the Shares contemplated hereby and the offering and sale of Shares contemplated hereby complies with the requirements of Rule 415 under the Securities Act. At the time of the initial filing of the Registration Statement, at the time of the most recent amendment thereto 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), at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Securities Act) made any offer relating to the Shares in reliance on the exemption of Rule 163 under the Securities Act and at the date hereof, the Company was and is a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act, including not having been and not being an “ineligible issuer,” as defined in Rule 405 under the Securities Act. The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 under the Securities Act, and the Shares, since their registration on the Registration Statement, have been and remain eligible for registration delivered by the Company on and Co-Issuer, and, assuming due authorization, execution and delivery by the Dealer Managers, this Agreement constitutes a Rule 405 “automatic shelf registration statement.” The Company has not received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting to the use valid and legally binding agreement of the automatic shelf registration statement form. The Company has paid or will pay and Co-Issuer, enforceable against the required Commission filing fees relating to the Shares within the time required by Rule 456(b)(1)(i) under the Securities Act without regard to the proviso therein Company and otherwise Co-Issuer in accordance with Rules 456(b) and 457(r) under the Securities Act (includingits terms, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) under the Securities Act either in a post-effective amendment except to the Registration Statement extent such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or on other similar laws relating to or affecting the cover page rights and remedies of the Prospectus)creditors or by general equitable principles.
(2d) The Original Registration Statement became effective upon filing under Rule 462(e) under the Securities Act on February 12, 2020. No stop order suspending the effectiveness Each of the Registration Statement has been issued under the Securities Act Tender Documents complies and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Company, are contemplated by the Commission, and any request on the part of the Commission for additional information has been complied with.
(3) Any offer that is a written communication relating to the Shares made prior to the initial filing of the Registration Statement by the Company or any person acting on its behalf (within the meaning, for this paragraph only, of Rule 163(c) under the Securities Act) has been filed with the Commission in accordance with the exemption provided by Rule 163 under the Securities Act and otherwise complied with the requirements of Rule 163 under the Securities Act, including without limitation the legending requirement.
(4) The Company has delivered or made available on XXXXX to each of the Sales Agent and the Forward Seller one complete copy of the Registration Statement and a copy of each consent and certificate of experts filed as a part thereof, and conformed copies of the Registration Statement (without exhibits) and the Prospectus, as amended or supplemented, in such quantities and at such places as the Sales Agent if amended or the Forward Seller, as applicable, has reasonably requested. The Prospectus delivered to the Sales Agent and the Forward Seller for use in connection with the offering of Shares will, at the time of such delivery, be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(5supplemented) At the respective times the Registration Statement and each amendment thereto became effective, at each deemed effective date with respect to the Sales Agent, the Forward Seller or the Forward Purchaser pursuant to Rule 430B(f)(2) under the Securities Act, as the case may be, the Registration Statement complied and will comply in all material respects with the all applicable requirements of the Securities ActAct of 1933, as amended, and did the rules and regulations promulgated thereunder (collectively, the “Securities Act”) and the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (collectively, the “Exchange Act”); and the documents incorporated or deemed to be incorporated by reference into each of the Tender Documents (collectively, the “Incorporated Documents”) complied, as of the date of filing with the Securities and Exchange Commission (the “SEC”), in all material respects with all applicable requirements of the Securities Act and the Exchange Act; and each of the Tender Documents (including the Incorporated Documents) do not and (as amended or supplemented, if amended or supplemented) will not contain 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. The preceding sentence does not apply to statements in or omissions from the Registration Statement or any amendment thereto in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, expressly for inclusion in any of the aforementioned documents.
(6) Neither the Prospectus nor any amendments or supplements thereto, at the time the Prospectus or any such amendment or supplement was issued, as of the date hereof, at each Representation Date, at each Applicable Time, and at each Settlement Date, as the case may be, included or will include an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. .
(e) The preceding sentence does not apply to statements financial statements, together with the related schedules and notes, contained in or omissions from the Prospectus, as amended or supplementedTender Documents and the Incorporated Documents present fairly in all material respects, in reliance upon and in conformity accordance with written information relating to the Sales Agentgenerally accepted accounting principles (“GAAP”), the Forward Seller or the Forward Purchaser furnished to consolidated financial position, results of operations, stockholder’s equity and cash flows of the Company and its subsidiaries on the basis stated therein at the respective dates or for the respective periods to which they relate; and such statements and related schedules and notes have been prepared in writing accordance with GAAP consistently applied throughout the periods involved, except as disclosed therein.
(f) Except as disclosed in the Tender Documents, the Company and its subsidiaries are not in breach or violation of or in default under, (i) any of the provisions of the indenture, dated as of December 23, 2003, governing the Notes (the “Indenture”), (ii) any of the provisions of the charter or bylaws (or similar organizational documents) of the Company or any of its subsidiaries, (iii) any other note, indenture, loan agreement, mortgage or other agreement, instrument or undertaking to which the Company or any of its subsidiaries is a party or by which any of them is bound or to which any of their properties or assets is subject, or (iv) any law, rule or regulation, or any order of any court or of any other governmental agency or instrumentality having jurisdiction over the Company or any of its subsidiaries or affiliates or any of its or their respective properties or assets, which violation or default in the case of clauses (i), (iii) or (iv) would, if continued, have a Material Adverse Effect or could materially impair the ability of any of the Company or its subsidiaries to perform their obligations under this Agreement.
(g) The execution, delivery and performance by the Sales Agent, Company and Co-Issuer of this Agreement and the Forward Seller or consummation by the Forward PurchaserCompany and Co-Issuer, as applicable, expressly for inclusion of the transactions contemplated hereby do not and will not conflict with, or result (or with the passage of time would result) in a breach or violation of, or constitute a default under, (i) any of the aforementioned provisions of the indenture dated as of December 23, 2003, governing the Notes (the “Indenture”) or of the charter or bylaws (or similar organizational documents) of the Company or any of its subsidiaries, (ii) any other note, indenture, loan agreement, mortgage or other agreement, instrument or undertaking to which the Company or any of its subsidiaries or affiliates is a party or by which any of them is bound or to which any of their properties or assets is subject, or (iii) any law, rule or regulation, or any order of any court or of any other governmental agency or instrumentality having jurisdiction over the Company or any of its subsidiaries or affiliates or any of its or their respective properties or assets, except for such breaches, violations, and defaults in the case of clause (ii) and clause (iii) that would not be reasonably expected to have a material adverse effect on the general affairs, management, business, condition (financial or otherwise), or results of operations of the Company and its subsidiaries, taken as a whole (a “Material Adverse Effect”).
(7h) Each document incorporated No consent, approval, authorization or order of, or registration, qualification or filing with, any court or regulatory authority or other governmental agency or instrumentality is or will be required by reference the Company in connection with the Registration Statement making or consummation of the Tender Offer or the Prospectus heretofore filedexecution, when it was filed delivery or performance by the Company of this Agreement and the transactions contemplated hereby, except such as have been obtained or made by the Company or Co-Issuer, as applicable, and are in full force and effect under the Securities Act, the Exchange Act or applicable state securities or “blue sky” laws or regulations.
(ori) In connection with the Tender Offer, if any amendment with respect the Company has complied, and will continue to any such document was filedcomply, when such amendment was filed), conformed in all material respects with the requirements Securities Act, the Exchange Act, the applicable regulations of the Exchange Act Financial Industry Regulatory Authority or any stock exchange and applicable state securities or “blue sky” laws or regulations.
(j) Subsequent to the respective dates of the most recent financial statements contained in the Tender Documents and the rules and regulations thereunderIncorporated Documents (each as amended or supplemented), and no Material Adverse Effect shall have occurred, except as set forth in, or contemplated by, the Tender Documents (as amended or supplemented).
(k) There is no action, suit, proceeding, inquiry or investigation before or brought by any further documents so filed and incorporated after court or governmental agency or body, domestic or foreign, now pending or, to the date Company’s knowledge, threatened, against or affecting the Company or any subsidiary of this Agreement willthe Company, when they are filed, conform other than those accurately described in all material respects with in the requirements of the Exchange Act and the rules and regulations thereunder; no such document when it was filed (or, if an amendment with respect Offer to any such document was filed, when such amendment was filed), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and no such document, when it is filed, will contain an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(8) Each Issuer Free Writing Prospectus (as defined herein), on its issue date, as of each Applicable Time, and as of each Settlement DatePurchase, or until any earlier date that the issuer notified or notifies the Sales Agent or the Forward Seller as described in Section 8(d) hereof, 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 incorporated document deemed to be a part thereof that has not been superseded or modified. The foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with written information furnished to the Company by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, specifically for use therein.
(9) This Agreement has been duly authorized, executed and delivered by the Company and this Agreement constitutes a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and by general principles of equity (the “Exceptions”). The Master Forward Confirmation will have been, as of its date, duly authorized, executed and delivered by the Company and when executed and delivered by the Forward Purchaser, such Master Forward Confirmation will constitute a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by the Exceptions.
(10) The Company and its “Subsidiaries” (as defined in Section 6(a)(13) hereof) have been duly incorporated or organized and are validly existing as corporations or organizations in good standing under the laws of the states or other jurisdictions in which they are incorporated or organized, with full power and authority (corporate and other) to own, lease and operate their properties and conduct their businesses as described in the Prospectus and, with respect to the Company, to execute and deliver, and perform the Company’s obligations under, this Agreement; the Company and its Subsidiaries are duly qualified to do business as foreign corporations or organizations in good standing in each state or other jurisdiction in which their ownership or leasing of property or conduct of business legally requires such qualification, except where the failure to be so qualifiedwhich, individually or in the aggregate, would not have reasonably be expected to result in a Material Adverse Effect.
(l) The Company has, or at the time it becomes obligated to purchase the Notes pursuant to the Tender Offer will have, sufficient funds available, and sufficient authority to use such funds under applicable law, to enable it to pay for the Notes tendered in accordance with the terms and conditions set forth in the Tender Documents. The term “Material Adverse Effect” representations and warranties set forth in this Section 4 shall remain operative and in full force and effect regardless of any investigation made by or on behalf of any Indemnified Person (as used herein means any material adverse effect on the condition (financial or otherdefined in Annex A attached hereto), net worth, business, affairs, management, prospects, results of operations or cash flow of the Company and its Subsidiaries, taken as a whole.
Appears in 1 contract
Samples: Dealer Manager Agreement (Suburban Propane Partners Lp)
Representations and Warranties by the Company. The Company represents and warrants to the Sales Agent, the Forward Seller and the Forward Purchaser as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 8(o) of this Agreement, as of that date on which any Placement Notice is given hereunder, as of the time of each sale of any Issuance Shares or Forward Hedge Shares pursuant to this Agreement (the “Applicable Time”) and as of each Settlement Date (as defined below)to, and agrees with the Sales Agentwith, the Forward Seller and the Forward Purchaser, as followseach Underwriter that:
(1i) The Company satisfies all of meets the requirements of the Securities Act for use of Form S-3 under the Securities Act of 1933, as amended (the “Act”) and has filed with the Securities and Exchange Commission (the “Commission”) a registration statement on such Form, including a prospectus, for the registration under the Act of the Bonds, which registration statement has become effective. Such registration statement, as amended on the date of such registration statement’s effectiveness for purposes of Section 11 of the 1933 Act, as such Section applies to the Company and the Underwriters for the Bonds pursuant to Rule 430B(f)(2) under the 1933 Act (the “Effective Date”) (or upon effectiveness of any post-effective amendment thereto), including the information, if any, deemed pursuant to Rule 430A, 430B or 430C under the Act or under the Securities Exchange Act of 1934 to be part of the registration statement at the time of its effectiveness (“Rule 430 Information”), are collectively referred to herein as the “Registration Statement.” Each prospectus used before the registration statement became effective, and any prospectus or prospectus supplement that omitted Rule 430 Information that was used after such effectiveness and prior to the execution and delivery of this Agreement is herein called a “preliminary prospectus.” The preliminary prospectus supplement dated , including the accompanying prospectus dated , is herein called the “Preliminary Prospectus.” The prospectus, in the form first filed under Rule 424(b) under the Act after the date and time this Agreement is executed, is herein called the “Prospectus”;
(ii) The Company will file with the Commission the Prospectus, which will include a prospectus supplement (the “Prospectus Supplement”) relating to the Bonds, pursuant to Rule 424 under the Act. Copies of such Registration Statement, the Preliminary Prospectus and Prospectus, any such amendment or supplement and all documents incorporated by reference therein which were filed with the Commission on or prior to the date of this Agreement have been delivered to you and copies of the Prospectus Supplement will be delivered to you promptly after it is filed with the Commission; and
(iii) Unless specifically noted otherwise herein, any reference herein to the Registration Statement, the Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 which were filed under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) as of each effective date for purposes of the Registration Statement or on or before the date hereof for purposes of the Preliminary Prospectus or the Prospectus. If the Company files any document pursuant to the Exchange Act after the date of this Agreement and prior to the termination of the offering of the Shares contemplated hereby Bonds by the Underwriters, which document is deemed to be incorporated by reference into the Prospectus, the term “Prospectus” shall refer also to said prospectus as supplemented by the document so filed from and after the offering and sale of Shares contemplated hereby complies time said document is filed with the requirements of Rule 415 under Commission; any reference to any amendment to the Securities Act. At the time Registration Statement shall be deemed to refer to and include (A) any annual report of the initial filing of the Registration Statement, at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective amendment, incorporated report Company filed pursuant to Section 13 13(c) or 15(d) of the Exchange Act or form of prospectus), at after the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Securities Act) made any offer relating to the Shares in reliance on the exemption of Rule 163 under the Securities Act and at the effective date hereof, the Company was and is a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act, including not having been and not being an “ineligible issuer,” as defined in Rule 405 under the Securities Act. The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 under the Securities Act, 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.” The Company has not received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting to the use of the automatic shelf registration statement form. The Company has paid or will pay the required Commission filing fees relating to the Shares within the time required by Rule 456(b)(1)(i) under the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Securities Act (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) under the Securities Act either in a post-effective amendment to the Registration Statement or on the cover page of the Prospectus).
(2) The Original Registration Statement became effective upon filing under Rule 462(e) under the Securities Act on February 12, 2020. 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 by the Commission, and any request on the part of the Commission for additional information has been complied with.
(3) Any offer that is a written communication relating to the Shares made prior to the initial filing of the Registration Statement by the Company or any person acting on its behalf (within the meaning, for this paragraph only, of Rule 163(c) under the Securities Act) has been filed with the Commission in accordance with the exemption provided by Rule 163 under the Securities Act and otherwise complied with the requirements of Rule 163 under the Securities Act, including without limitation the legending requirement.
(4) The Company has delivered or made available on XXXXX to each of the Sales Agent and the Forward Seller one complete copy of the Registration Statement and a copy of each consent and certificate of experts filed as a part thereof, and conformed copies of the Registration Statement (without exhibits) and the Prospectus, as amended or supplemented, in such quantities and at such places as the Sales Agent or the Forward Seller, as applicable, has reasonably requested. The Prospectus delivered to the Sales Agent and the Forward Seller for use in connection with the offering of Shares will, at the time of such delivery, be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(5) At the respective times the Registration Statement and each amendment thereto became effective, at each deemed effective date with respect to the Sales Agent, the Forward Seller or the Forward Purchaser pursuant to Rule 430B(f)(2) under the Securities Act, as the case may be, the Registration Statement complied and will comply in all material respects with the requirements of the Securities Act, and did not 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. The preceding sentence does not apply to statements in or omissions from the Registration Statement or any amendment thereto in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, expressly for inclusion in any of the aforementioned documents.
(6) Neither the Prospectus nor any amendments or supplements thereto, at the time the Prospectus or any such amendment or supplement was issued, as of the date hereof, at each Representation Date, at each Applicable Time, and at each Settlement Date, as the case may be, included or will include an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from the Prospectus, as amended or supplemented, in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, expressly for inclusion in any of the aforementioned documents.
(7) Each document incorporated by reference in the Registration Statement and (B) any Prospectus Supplement relating to the Bonds. There are no contracts or documents of the Prospectus heretofore filedCompany that are required to be filed as exhibits to the Registration Statement or any documents incorporated by reference therein by the Act, when it was filed (or, if any amendment with respect to any such document was filed, when such amendment was filed), conformed in all material respects with the requirements of the Exchange Act and or the rules and regulations thereunder, and any further documents so filed and incorporated after the date of this Agreement will, when they are filed, conform in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder; no such document when it was filed (or, if an amendment with respect to any such document was filed, when such amendment was filed), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and no such document, when it is filed, will contain an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(8) Each Issuer Free Writing Prospectus (as defined herein), on its issue date, as of each Applicable Time, and as of each Settlement Date, or until any earlier date that the issuer notified or notifies the Sales Agent or the Forward Seller as described in Section 8(d) hereof, 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 incorporated document deemed to be a part thereof that has thereunder which have not been superseded or modified. The foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with written information furnished to the Company by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, specifically for use thereinso filed.
(9) This Agreement has been duly authorized, executed and delivered by the Company and this Agreement constitutes a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and by general principles of equity (the “Exceptions”). The Master Forward Confirmation will have been, as of its date, duly authorized, executed and delivered by the Company and when executed and delivered by the Forward Purchaser, such Master Forward Confirmation will constitute a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by the Exceptions.
(10) The Company and its “Subsidiaries” (as defined in Section 6(a)(13) hereof) have been duly incorporated or organized and are validly existing as corporations or organizations in good standing under the laws of the states or other jurisdictions in which they are incorporated or organized, with full power and authority (corporate and other) to own, lease and operate their properties and conduct their businesses as described in the Prospectus and, with respect to the Company, to execute and deliver, and perform the Company’s obligations under, this Agreement; the Company and its Subsidiaries are duly qualified to do business as foreign corporations or organizations in good standing in each state or other jurisdiction in which their ownership or leasing of property or conduct of business legally requires such qualification, except where the failure to be so qualified, individually or in the aggregate, would not have a Material Adverse Effect. The term “Material Adverse Effect” as used herein means any material adverse effect on the condition (financial or other), net worth, business, affairs, management, prospects, results of operations or cash flow of the Company and its Subsidiaries, taken as a whole.
Appears in 1 contract
Samples: Underwriting Agreement (Public Service Co of Colorado)
Representations and Warranties by the Company. The Company represents and warrants to the Sales Agent, the Forward Seller and the Forward Purchaser as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 8(o) of this Agreement, as of that date on which any Placement Notice is given hereunder, as of the time of each sale of any Issuance Shares or Forward Hedge Shares pursuant to this Agreement (the “Applicable Time”) and as of each Settlement Date (as defined below)to, and agrees with the Sales Agentwith, the Forward Seller and the Forward Purchaser, as followseach Underwriter that:
(1a) The Company satisfies all of meets the requirements of the Securities Act for use of Form S-3 under the Securities Act of 1933, as amended (the "Act") and has filed with the Securities and Exchange Commission (the "Commission") a registration statement on such Form, including a prospectus, for the registration under the Act of the Debt Securities, Senior Notes and First Mortgage Bonds, which registration statement has become effective. Such registration statement and prospectus may have been amended or supplemented from time to time prior to the date of this Agreement (which date is set forth in Schedule I hereto). Any such amendment or supplement was filed with the Commission and any such amendment has become effective. The Company will file with the Commission a prospectus supplement (the "Prospectus Supplement") relating to the Debt Securities pursuant to Rule 424 and/or Rule 434 under the Act. Copies of such registration statement and prospectus, any such amendment or supplement and all documents incorporated by reference therein which were filed with the Commission on or prior to the date of this Agreement have been delivered to you and copies of the Prospectus Supplement will be delivered to you promptly after it is filed with the Commission. Such registration statement, as amended prior to the date of this Agreement, and such prospectus, as amended and supplemented prior to the date of this Agreement and as supplemented by the Prospectus Supplement, are hereinafter called the "Registration Statement" and the "Prospectus", respectively. Any reference herein to the Registration Statement or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 which were filed under the Securities Exchange Act of 1934, as amended (the "Exchange Act") on or before the date of this Agreement and, if the Company files any document pursuant to the Exchange Act after the date of this Agreement and prior to the termination of the offering of the Shares contemplated hereby Debt Securities by the Underwriters, which documents are deemed to be incorporated by reference into the Prospectus, the term "Prospectus" shall refer also to said prospectus as supplemented by the documents so filed from and after the offering and sale of Shares contemplated hereby complies time said documents are filed with the requirements of Rule 415 under the Securities ActCommission. At the time There are no contracts or documents of the initial filing Company or any of its subsidiaries that are required to be filed as exhibits to the Registration Statement or any documents incorporated by reference therein by the Act, the Exchange Act or the rules and regulations thereunder which have not been so filed.
(b) No order preventing or suspending the use of the Prospectus or the Registration Statement has been issued by the Commission and the Registration Statement, at the time date of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective amendmentthis Agreement, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Securities Act) made any offer relating to the Shares in reliance on the exemption of Rule 163 under the Securities Act and at the date hereof, the Company was and is a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act, including not having been and not being an “ineligible issuer,” as defined in Rule 405 under the Securities Act. The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 under the Securities Act, 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.” The Company has not received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting to the use of the automatic shelf registration statement form. The Company has paid or will pay the required Commission filing fees relating to the Shares within the time required by Rule 456(b)(1)(i) under the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Securities Act (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) under the Securities Act either in a post-effective amendment to the Registration Statement or on the cover page of the Prospectus).
(2) The Original Registration Statement became effective upon filing under Rule 462(e) under the Securities Act on February 12, 2020. 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 by the Commission, and any request on the part of the Commission for additional information has been complied with.
(3) Any offer that is a written communication relating to the Shares made prior to the initial filing of the Registration Statement by the Company or any person acting on its behalf (within the meaning, for this paragraph only, of Rule 163(c) under the Securities Act) has been filed with the Commission in accordance with the exemption provided by Rule 163 under the Securities Act and otherwise complied with the requirements of Rule 163 under the Securities Act, including without limitation the legending requirement.
(4) The Company has delivered or made available on XXXXX to each of the Sales Agent and the Forward Seller one complete copy of the Registration Statement and a copy of each consent and certificate of experts filed as a part thereof, and conformed copies of the Registration Statement (without exhibits) and the Prospectus, as amended or supplemented, in such quantities and at such places as the Sales Agent or the Forward Seller, as applicable, has reasonably requested. The Prospectus delivered to the Sales Agent and the Forward Seller for use in connection with the offering of Shares will, at the time of such delivery, be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(5) At the respective times the Registration Statement and each amendment thereto became effective, at each deemed effective date with respect to the Sales Agent, the Forward Seller or the Forward Purchaser pursuant to Rule 430B(f)(2) under the Securities Act, as the case may be, the Registration Statement complied and will comply in all material respects with the requirements of the Securities Act, the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act") and the respective rules and regulations of the Commission thereunder and did not and will not contain 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. The preceding sentence does not apply to statements in or omissions from the Registration Statement or any amendment thereto in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, expressly for inclusion in any of the aforementioned documents.
(6) Neither the Prospectus nor any amendments or supplements thereto, at the time the Prospectus or any such amendment or supplement was issued, as of the date hereof, at each Representation Date, at each Applicable Time, and at each Settlement Date, as the case may be, included or will include an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from the Prospectus, as amended or supplemented, in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, expressly for inclusion in any of the aforementioned documents.
(7) Each document incorporated by reference in the Registration Statement or the Prospectus heretofore filed, when it was filed (or, if any amendment with respect to any such document was filed, when such amendment was filed), conformed in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder, and any further documents so filed and incorporated after the date of this Agreement will, when they are filed, conform in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder; no such document when it was filed (or, if an amendment with respect to any such document was filed, when such amendment was filed), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and, at the time the Prospectus Supplement is filed with the Commission and no such documentat the Closing Date (as hereinafter defined), when it is filed, the Prospectus will comply in all material respects with the Act and the rules and regulations of the Commission thereunder and will not contain an any untrue statement of a material fact or will omit to state a any material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(8) Each Issuer Free Writing Prospectus (as defined herein), on its issue date, as of each Applicable Time, and as of each Settlement Date, or until any earlier date ; PROVIDED that the issuer notified Company makes no representations or notifies warranties as to (A) that part of the Sales Agent Registration Statement which shall constitute the Statements of Eligibility (Forms T-1) under the Trust Indenture Act of the Debt Trustee and the trustees for the Senior Notes and First Mortgage Bonds or the Forward Seller as described in Section 8(d(B) hereof, did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in or omitted from the Registration Statement or the Prospectus in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of any Underwriter through the Representatives specifically for use in the Registration Statement or Prospectus.
(c) The documents incorporated by reference in the Prospectus, including when they were filed with the Commission, conformed in all material respects to the requirements of the Exchange Act and the rules and regulations of the Commission thereunder, and any documents so filed and incorporated document deemed by reference subsequent to the date of this Agreement will, when they are filed with the Commission, conform in all material respects to the requirements of the Exchange Act, and the rules and regulations of the Commission thereunder; and none of such documents include or will include any untrue statement of a material fact or omit or will omit to state any 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.
(d) PricewaterhouseCoopers LLP which audited certain of the financial statements incorporated by reference in the Registration Statement, is an independent public accountant as required by the Act and the rules and regulations of the Commission thereunder.
(e) The financial statements of the Company and its consolidated subsidiaries filed as a part thereof that of or incorporated by reference in the Registration Statement or Prospectus fairly present the financial position of the Company and its consolidated subsidiaries as of the dates indicated and the results of their operations and changes in financial position for the periods specified, and have been prepared in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods involved, except as disclosed in the Prospectus Supplement. The unaudited pro forma financial information incorporated by reference in the Registration Statement and the Prospectus complies in all material respects with the applicable accounting requirements of Rule 11-02 of Regulation S-X and the pro forma adjustments have been properly applied to the historical amounts in the compilation of such information.
(f) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Minnesota with due corporate authority to carry on the business in which it is engaged and to own and operate the properties used by it in such business, as described in the Prospectus; the Company is qualified to do business as a foreign corporation and is in good standing under the laws of the States of North Dakota, South Dakota and Arizona; and the Company is not required by the nature of its business to be licensed or qualified as a foreign corporation in any other state or jurisdiction; and, except as set forth in the Prospectus Supplement, the Company has all material licenses and approvals required at the date hereof to conduct its business.
(g) Each subsidiary of the Company named in Exhibit 21.01 to the Company's most recent Annual Report on Form 10-K ("Significant Subsidiary") has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation and is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which it owns or leases substantial properties or in which the conduct of its business requires such qualification; all of the issued and outstanding capital stock of each such subsidiary has been duly authorized and validly issued and is fully paid and non-assessable; and the capital stock of each such subsidiary owned by the Company, directly or through subsidiaries, is owned free and clear of any pledge, lien, encumbrance, claim or equity.
(h) Neither the Company nor any of its subsidiaries has sustained since the date of the latest audited financial statements included or incorporated by reference in the Prospectus any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus Supplement; and, since the respective dates as of which information is given in the Registration Statement and the Prospectus Supplement, neither the Company nor any of its subsidiaries has incurred any liabilities or obligations, direct or contingent, or entered into any transactions, not in the ordinary course of business, which are material to the Company and its subsidiaries, and there has not been superseded any material change in the capital stock or modified. The foregoing sentence does not apply to statements long-term debt of the Company or any of its subsidiaries or any material adverse change, or any development involving a prospective material adverse change, in or omissions from affecting the general affairs, management, financial position, stockholders' equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Prospectus Supplement.
(i) Neither the execution and delivery of this Agreement and the Debt Indenture, the issuance and delivery of the Debt Securities, the consummation of the transactions herein contemplated, the fulfillment of the terms hereof, nor compliance with the terms and provisions of this Agreement, the Debt Securities and the Debt Indenture will conflict with, or result in the breach of, any Issuer Free Writing Prospectus based upon and of the terms, provisions or conditions of the Restated Articles of Incorporation, as amended, or by-laws of the Company, or of any contract, agreement or instrument to which the Company is a party or in conformity with written information furnished which the Company has a beneficial interest or by which the Company is bound or of any order, rule or regulation applicable to the Company by of any court or of any federal or state regulatory body or administrative agency or other governmental body having jurisdiction over the Sales Agent, the Forward Seller Company or the Forward Purchaser, as applicable, specifically for use thereinover its properties.
(9j) This The Debt Securities have been duly authorized for issuance and sale pursuant to this Agreement and, when executed and authenticated in accordance with the Debt Indenture and delivered and paid for as provided herein, will be duly issued and will constitute valid and binding obligations of the Company enforceable in accordance with their terms, except as limited by bankruptcy, insolvency and other laws affecting enforcement of creditors' rights, and will be entitled to the benefits of the Debt Indenture which will be substantially in the form heretofore delivered to you.
(k) The Debt Indenture has been duly authorizedand validly authorized by the Company and, when duly executed and delivered by the Company Company, assuming due authorization, execution and this Agreement constitutes delivery thereof by the Debt Trustee, will constitute a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability enforcement thereof may be limited by bankruptcy, insolvencyinsolvency or other laws affecting enforcement of creditors' rights.
(l) The Minnesota Public Utilities Commission has issued its order approving capital structure which order authorizes the issuance of the Debt Securities, fraudulent conveyanceand no other approval of any regulatory public body, reorganizationstate or federal, moratorium is, or will be at the Closing Date (as hereinafter defined), necessary in connection with the issuance and sale of the Debt Securities pursuant to this Agreement, other than approvals that may be required under state securities laws.
(m) The Company has good and valid title to all real and fixed property and leasehold rights which are owned by it, subject only to taxes and assessments not yet delinquent; the lien of First Mortgage Indenture; as to parts of the Company's property, certain easements, conditions, restrictions, leases, and similar laws relating to or affecting creditors’ rights generally and by general principles encumbrances which do not affect the Company's use of equity (such property in the “Exceptions”). The Master Forward Confirmation will have been, as usual course of its datebusiness, duly authorizedand certain minor defects in titles which are not material, executed and delivered defects in titles to certain properties which are not essential to the Company's business; and mechanics' lien claims being contested or not of record or for the satisfaction or discharge of which adequate provision has been made by the Company pursuant to the First Mortgage Indenture; and when executed any real property and delivered buildings held under lease by the Forward PurchaserCompany is held by it under valid, subsisting and enforceable leases with such Master Forward Confirmation will constitute exceptions as are not material and do not interfere with the use made and proposed to be made of such property and buildings by the Company.
(n) Other than as set forth or contemplated in the Prospectus as of the date hereof, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a valid and legally binding obligation party or of which any property of the Company enforceable against or any of its subsidiaries is the subject which, if determined adversely to the Company in accordance with or any of its termssubsidiaries, except as enforceability may be limited by the Exceptions.
(10) The Company and its “Subsidiaries” (as defined in Section 6(a)(13) hereof) have been duly incorporated would individually or organized and are validly existing as corporations or organizations in good standing under the laws of the states or other jurisdictions in which they are incorporated or organized, with full power and authority (corporate and other) to own, lease and operate their properties and conduct their businesses as described in the Prospectus andaggregate have a material adverse effect on the consolidated financial position, with respect to the Company, to execute and deliver, and perform the Company’s obligations under, this Agreement; stockholders' equity or results of operations of the Company and its Subsidiaries subsidiaries; and, to the best of the Company's knowledge, no such proceedings are duly qualified threatened or contemplated by governmental authorities or threatened by others.
(o) The Company is not an "investment company" or an entity "controlled" by an "investment company," as such terms are defined in the Investment Company Act of 1940, as amended.
(p) Except as set forth in the Prospectus Supplement, the Company and its subsidiaries (A) are in compliance with any and all applicable federal, state and local laws and regulations relating to do business as foreign corporations the protection of human health and safety, the environment or organizations in good standing in each state hazardous or toxic substances or wastes, pollutants or contaminants ("Environmental Laws"), (B) have received all permits, licenses or other jurisdiction approvals required of them under applicable Environmental Laws to conduct its respective business and (C) are in which their ownership compliance with all terms and conditions of any such permits, licenses or leasing of property or conduct of business legally requires such qualificationapprovals, except where the such noncompliance with Environmental Laws, failure to be so qualifiedreceive required permits, individually licenses or other approvals or failure to comply with the terms and conditions of such permits, licenses or approvals would not, singly or in the aggregate, would not have a Material Adverse Effect. The term “Material Adverse Effect” as used herein means any material adverse effect on the condition (financial or other), net worth, business, affairs, management, prospects, results of operations or cash flow of the Company and its Subsidiariessubsidiaries, taken as a whole.
Appears in 1 contract
Samples: Underwriting Agreement (Northern States Power Co /Mn/)
Representations and Warranties by the Company. The Company hereby represents and warrants to the Sales AgentUnderwriters, the Forward Seller Sellers and the Forward Purchaser Counterparties as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 8(o) of this Agreement, as of that date on which any Placement Notice is given hereunderhereof, as of the time of each sale of any Issuance Shares or Forward Hedge Shares pursuant to this Agreement (the “Applicable Time”) and as of each Settlement Date Sale Time (as defined below), as of the Closing Date referred to in Section 3(c) hereof and as of each Option Closing Date (if any) referred to in Section 3(b) hereof, and agrees with the Sales AgentUnderwriters, the Forward Seller Sellers and the Forward PurchaserCounterparties, as follows:
(1) The Company satisfies all of meets the requirements of the Securities Act for use of Form S-3 for the offering of the Shares contemplated hereby and the offering and sale of Shares contemplated hereby complies with the requirements of Rule 415 under the Securities Act. At the time of the initial filing of the Registration Statement, at the time of the most recent amendment thereto 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), at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Securities Act) made any offer relating to the Shares in reliance on the exemption of Rule 163 under the Securities Act and at the date hereof, the Company was and is a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act, including not having been and not being an “ineligible issuer,” as defined in Rule 405 under the Securities Act. The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 and any post-effective amendments thereto have become effective under the Securities Act, 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.” The Company has not received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting to the use of the automatic shelf registration statement form. The Company has paid or will pay the required Commission filing fees relating to the Shares within the time required by Rule 456(b)(1)(i) under the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Securities Act (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) under the Securities Act either in a post-effective amendment to the Registration Statement or on the cover page of the Prospectus).
(2) The Original Registration Statement became effective upon filing under Rule 462(e) under the Securities Act on February 12, 2020. No stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act and no proceedings for that purpose or pursuant to Section 8A under the Securities Act have been instituted or are pending or, to the knowledge of the Company, are contemplated by the Commission, and any request on the part of the Commission for additional information has been complied with.
(3) Any offer that is a written communication relating to the Shares made prior to the initial filing of the Registration Statement by the Company or any person acting on its behalf (within the meaning, for this paragraph only, of Rule 163(c) under the Securities Act) has been filed with the Commission in accordance with the exemption provided by Rule 163 under the Securities Act and otherwise complied with the requirements of Rule 163 under the Securities Act, including without limitation the legending requirement.
(4) The Company has delivered or made available on XXXXX to each of the Sales Agent and the Forward Seller one complete copy of the Registration Statement and a copy of each consent and certificate of experts filed as a part thereof, and conformed copies of the Registration Statement (without exhibits) and the Prospectus, as amended or supplemented, in such quantities and at such places as the Sales Agent or the Forward Seller, as applicable, has reasonably requested. The Prospectus delivered to the Sales Agent and the Forward Seller for use in connection with the offering of Shares will, at the time of such delivery, be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(52) At the respective times the Registration Statement and each amendment any post-effective amendments thereto became or become effective, at each deemed effective date of the Registration Statement with respect to the Sales Agent, the Forward Seller or the Forward Purchaser Underwriters pursuant to Rule 430B(f)(2) under of the Securities ActAct and at the Closing Date (and, as if any Option Securities are purchased, at the case may beapplicable Option Closing Date), the Registration Statement complied and will comply in all material respects with the requirements of the Securities Act, Act and did not 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. The preceding sentence does not apply to statements in or omissions from the Registration Statement or any amendment thereto in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, expressly for inclusion in any of the aforementioned documents.
(63) Neither the The Prospectus nor and any amendments or supplements thereto, at the time the Prospectus or any such amendment or supplement was issuedissued and at the Closing Date (and, as if any Option Securities are purchased, at the applicable Option Closing Date), complied and will comply in all material respects with the requirements of the date hereof, at each Representation Date, at each Applicable Time, Securities Act and at each Settlement Date, as the case may be, included or did not and will not include an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from the Prospectus, as amended or supplemented, in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, expressly for inclusion in any of the aforementioned documents.
(74) Each document incorporated by reference in preliminary prospectus (including any prospectus or prospectuses filed as part of the Registration Statement at the time it originally became effective or the Prospectus heretofore filed, when it was filed (or, if any amendment with respect to any such document was filed, when such amendment was filedthereto), conformed complied when so filed in all material respects with the requirements Securities Act and each preliminary prospectus and the Prospectus delivered to the Underwriters for use in connection with the offering of the Exchange Act Securities was identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(5) As of the Forward Sale Time, neither (x) the Issuer General Use Free Writing Prospectus(es) (as defined below) issued at or prior to the Forward Sale Time (as defined below), each preliminary prospectus issued at or prior to the Forward Sale Time and the rules and regulations thereunderinformation included on Schedule III hereto all considered together (collectively, and the “ Disclosure Package”), nor (y) any further documents so filed and incorporated after the date of this Agreement willindividual Issuer Limited Use Free Writing Prospectus (as defined below), when they are filed, conform in all material respects considered together with the requirements of the Exchange Act and the rules and regulations thereunder; no such document when it was filed (orDisclosure Package, if an amendment with respect to included any such document was filed, when such amendment was filed), contained an untrue statement of a material fact or omitted to state a any material fact required to be stated therein or necessary in order to make the statements therein therein, in the light of the circumstances under which they were made, not misleading; . As used in this subsection and no such document, when it is filed, will contain an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary elsewhere in order to make the statements therein not misleading.
(8) Each Issuer Free Writing Prospectus (as defined herein), on its issue date, as of each Applicable Time, and as of each Settlement Date, or until any earlier date that the issuer notified or notifies the Sales Agent or the Forward Seller as described in Section 8(d) hereof, 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 incorporated document deemed to be a part thereof that has not been superseded or modified. The foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with written information furnished to the Company by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, specifically for use therein.
(9) This Agreement has been duly authorized, executed and delivered by the Company and this Agreement constitutes a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and by general principles of equity (the “Exceptions”). The Master Forward Confirmation will have been, as of its date, duly authorized, executed and delivered by the Company and when executed and delivered by the Forward Purchaser, such Master Forward Confirmation will constitute a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by the Exceptions.
(10) The Company and its “Subsidiaries” (as defined in Section 6(a)(13) hereof) have been duly incorporated or organized and are validly existing as corporations or organizations in good standing under the laws of the states or other jurisdictions in which they are incorporated or organized, with full power and authority (corporate and other) to own, lease and operate their properties and conduct their businesses as described in the Prospectus and, with respect to the Company, to execute and deliver, and perform the Company’s obligations under, this Agreement; the Company and its Subsidiaries are duly qualified to do business as foreign corporations or organizations in good standing in each state or other jurisdiction in which their ownership or leasing of property or conduct of business legally requires such qualification, except where the failure to be so qualified, individually or in the aggregate, would not have a Material Adverse Effect. The term “Material Adverse Effect” as used herein means any material adverse effect on the condition (financial or other), net worth, business, affairs, management, prospects, results of operations or cash flow of the Company and its Subsidiaries, taken as a whole.:
Appears in 1 contract
Representations and Warranties by the Company. The Company represents and warrants to the Sales Agent, the Forward Seller and the Forward Purchaser as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 8(o) of this Agreement, as of that date on which any Placement Notice is given hereunder, as of the time of each sale of any Issuance Shares or Forward Hedge Shares pursuant to this Agreement (the “Applicable Time”) and as of each Settlement Date (as defined below)to, and agrees with the Sales Agent, the Forward Seller and the Forward Purchaser, as followseach Underwriter that:
(1a) The Company satisfies all of meets the requirements of the Securities Act for use of Form S-3 for the offering of the Shares contemplated hereby and the offering and sale of Shares contemplated hereby complies with the requirements of Rule 415 under the Securities Act of 1933, as amended (the "Act") and has filed with the Securities and Exchange Commission (the "Commission") a registration statement (with the file number set forth on Schedule I hereto) on such Form, including a prospectus, for the registration under the Act of the Securities, which registration statement has become effective. Such registration statement and prospectus may have been amended or supplemented from time to time prior to the date of this Agreement. Any such amendment or supplement was or will be timely filed with the Commission and any such amendment has become effective. The Company will file with the Commission a prospectus supplement (the "Prospectus Supplement") relating to the Securities pursuant to Rule 424 under the Act. At Copies of such registration statement and prospectus, any such amendment or supplement, the time Prospectus Supplement and all documents incorporated by reference therein which were filed with the Commission on or prior to the date of this Agreement have been delivered to you. Such registration statement and such prospectus or any prospectus used in place thereof pursuant to Rule 429 under the initial Act, as amended or supplemented prior to the date of this Agreement and as supplemented by the Prospectus Supplement, are hereinafter called the "Registration Statement," and the "Prospectus," respectively. Any reference herein to the Registration Statement or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 which were filed under the Securities Exchange Act of 1934 (the "Exchange Act") on or before the date of this Agreement, and any reference herein to the terms "amend," "amendment" or "supplement" with respect to the Registration Statement or the Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act deemed to be incorporated by reference therein after the date of this Agreement.
(i) The Registration Statement, at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by it became effective, any post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus)amendment thereto, at the time it became effective, the Company or any person acting on its behalf (within Prospectus, at the meaning, for date of this clause only, of Rule 163(c) under the Securities Act) made any offer relating to the Shares in reliance on the exemption of Rule 163 under the Securities Act Agreement and at the date hereofClosing Date (as hereinafter defined), the Company was any amendments thereof and is a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act, including not having been and not being an “ineligible issuer,” as defined in Rule 405 under the Securities Act. The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 under the Securities Act, supplements thereto 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.” The Company has not received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting to the use of the automatic shelf registration statement form. The Company has paid Indenture complied or will pay the required Commission filing fees relating to the Shares within the time required by Rule 456(b)(1)(i) under the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Securities Act (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) under the Securities Act either in a post-effective amendment to the Registration Statement or on the cover page of the Prospectus).
(2) The Original Registration Statement became effective upon filing under Rule 462(e) under the Securities Act on February 12, 2020. 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 by the Commission, and any request on the part of the Commission for additional information has been complied with.
(3) Any offer that is a written communication relating to the Shares made prior to the initial filing of the Registration Statement by the Company or any person acting on its behalf (within the meaning, for this paragraph only, of Rule 163(c) under the Securities Act) has been filed with the Commission in accordance with the exemption provided by Rule 163 under the Securities Act and otherwise complied with the requirements of Rule 163 under the Securities Act, including without limitation the legending requirement.
(4) The Company has delivered or made available on XXXXX to each of the Sales Agent and the Forward Seller one complete copy of the Registration Statement and a copy of each consent and certificate of experts filed as a part thereof, and conformed copies of the Registration Statement (without exhibits) and the Prospectus, as amended or supplemented, in such quantities and at such places as the Sales Agent or the Forward Seller, as applicable, has reasonably requested. The Prospectus delivered to the Sales Agent and the Forward Seller for use in connection with the offering of Shares will, at the time of such delivery, be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(5) At the respective times the Registration Statement and each amendment thereto became effective, at each deemed effective date with respect to the Sales Agent, the Forward Seller or the Forward Purchaser pursuant to Rule 430B(f)(2) under the Securities Act, as the case may be, the Registration Statement complied and will comply in all material respects with the requirements of the Securities Act, the Trust Indenture Act of 1939 (the "Trust Indenture Act") and did not the Exchange Act 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. The preceding sentence does not apply to statements in or omissions from respective rules thereunder and (ii) neither the Registration Statement or any amendment thereto in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, expressly for inclusion in any of the aforementioned documents.
(6) Neither nor the Prospectus nor any amendments or supplements thereto, at the time the Prospectus or any such amendment thereof or supplement was issued, as of the date hereof, at each Representation Date, at each Applicable Time, and at each Settlement Date, as the case may be, included thereto contained or will include an contain any untrue statement of a material fact or omitted or will omit to state a any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply ; provided, however, that the Company makes no representations or warranties as to statements (A) that part of the Registration Statement which shall constitute the Statement of Eligibility (Form T-1) under the Trust Indenture Act of the Trustee or (B) the information contained in or omissions omitted from the Prospectus, as amended Registration Statement or supplemented, the Prospectus or any amendment thereof or supplement thereto in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished in writing to the Company in writing by or on behalf of any Underwriter through the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, Representatives expressly for inclusion use in any of the aforementioned documentsProspectus as amended or supplemented.
(7c) Each document The documents incorporated by reference in the Registration Statement or the Prospectus heretofore filedProspectus, when it was they were filed (or, if any amendment with respect to any such document was filed, when such amendment was filed)the Commission or became effective, conformed in all material respects with to the requirements of the Act or the Exchange Act and the rules and regulations of the Commission thereunder, and any further documents so filed and incorporated after by reference subsequent to the date of this Agreement will, when they are filedfiled with the Commission, conform in all material respects with to the requirements of the Act and the Exchange Act Act, and the rules and regulations of the Commission thereunder; no , and none of such document when it was filed (or, if an amendment with respect to documents include or will include any such document was filed, when such amendment was filed), contained an untrue statement of a material fact or omitted omit or will omit to state a any material fact required to be stated therein or necessary in order to make the statements therein therein, in the light of the circumstances under which they were made, not misleading; and no provided, however, that such document, when it is filed, will contain an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(8) Each Issuer Free Writing Prospectus (as defined herein), on its issue date, as of each Applicable Time, and as of each Settlement Date, or until any earlier date that the issuer notified or notifies the Sales Agent or the Forward Seller as described in Section 8(d) hereof, 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 incorporated document deemed to be a part thereof that has not been superseded or modified. The foregoing sentence does representation shall not apply to any statements in or omissions from any Issuer Free Writing Prospectus based made in reliance upon and in conformity with written information furnished to by an Underwriter through the Company by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, specifically representatives expressly for use thereinin the Prospectus as supplemented or amended.
(9d) This Agreement The accountants who have certified or shall certify the audited financial statements incorporated by reference as parts of the Registration Statement and the Prospectus are independent accountants as required by the Act and the rules and regulations of the Commission thereunder.
(e) The financial statements and information included or incorporated by reference in the Registration Statement present fairly, in all material respects, the financial position, results of operations and changes in financial position of the Company at the respective dates and for the respective periods indicated, all in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods involved except as therein stated. The Company has no material contingent obligation which is not disclosed in the Registration Statement and Prospectus.
(f) Subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, except as set forth in the Registration Statement and the Prospectus, there has not been any material adverse change in the condition (financial or other), earnings, business or properties of the Company, whether or not arising from transactions in the ordinary course of business.
(g) All the outstanding shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and non-assessable.
(h) The Securities have been duly authorized, executed and, when are issued and delivered by pursuant to this Agreement, such securities will have been duly executed, authenticated, issued and delivered in accordance with the Company Indenture and this Agreement constitutes a sold to the Underwriters as provided herein, will constitute valid and legally binding obligation obligations of the Company enforceable against entitled to the Company in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and by general principles of equity (the “Exceptions”). The Master Forward Confirmation will have been, as of its date, duly authorized, executed and delivered by the Company and when executed and delivered by the Forward Purchaser, such Master Forward Confirmation will constitute a valid and legally binding obligation benefits of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by the ExceptionsIndenture.
(10i) The Securities conform, in all material respects, as to legal matters to the description thereof in the Prospectus.
(j) The Company and its “Subsidiaries” (as defined in Section 6(a)(13) hereof) have has been duly incorporated or organized and are validly existing as corporations or organizations corporation in good standing under the laws of the states or other jurisdictions in which they are incorporated or organizedState of New York; the Company holds all material licenses, with full certificates and permits from governmental authorities necessary for the conduct of its business; and the Company has the corporate power and authority (corporate and other) to own, lease and operate their own its properties and conduct their businesses its business as described in the Prospectus andProspectus.
(k) Neither the Company nor any of its subsidiaries is in violation of its respective charter or by-laws or in default in the performance of any obligation, with respect agreement, covenant or condition contained in any indenture, loan agreement, mortgage, lease or other agreement or instrument that is material to the Company, to execute and deliver, and perform the Company’s obligations under, this Agreement; the Company and its Subsidiaries are duly qualified subsidiaries, taken as a whole, to do business as foreign corporations which the Company or organizations in good standing in each state any of its subsidiaries is a party or other jurisdiction in by which the Company or any of its subsidiaries or their ownership or leasing of respective property or conduct of business legally requires such qualificationis bound, except where the failure to be so qualifiedfor such violation which, individually singly or in the aggregate, would not have a Material Adverse Effect. The term “Material Adverse Effect” as used herein means any material adverse effect on the condition (financial or other), net worth, business, affairsproperties, management, prospects, financial condition or results of operations or cash flow operation of the Company and its Subsidiaries, subsidiaries taken as a whole.
(l) The Indenture has been duly qualified under the Trust Indenture Act, the Company duly authorized the Indenture and, when the Company has duly executed and delivered the Indenture (assuming the due authorization, execution and delivery thereof by the Trustee) will be a valid and binding agreement of the Company, enforceable against it in accordance with its terms, except as the enforceability thereof may be limited (i) by the effect of bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws now or hereafter in effect relating to or affecting the rights and remedies of creditors and (ii) by the effect of general principles of equity, whether enforcement is considered in a proceeding in equity or at law, and the discretion of the court before which any proceedings may be brought.
(m) Neither the issuance or sale of the Securities, nor the consummation of any other of the transactions herein contemplated, nor the fulfillment of the terms hereof, will conflict with, result in a breach of or constitute a default under the terms of any indenture, or other agreement or instrument to which the Company is a party or by which it is bound or, to the best knowledge of the Company, any order or regulation applicable to the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Company.
(n) The Company has filed a petition with the Public Service Commission of the State of New York ("PSC") with respect to the issue and sale of the Securities. The PSC has authorized or is expected to authorize the issue and sale thereof on or prior to the Closing Date but upon the express condition that the Company shall file with the PSC for its consideration a copy of this Agreement and a statement setting forth (i) the interest rate for the Securities, (ii) any initial public offering price thereof, (iii) the price to be paid to the Company for the Securities, (iv) any underwriting commissions, (v) any sinking fund or other mandatory redemption provisions, and (vi) any redemption prices and dates with respect to redemption of the Securities at the option of the Company.
(o) The Company and each material subsidiary of the Company have good and valid title to all or substantially all of their permanent fixed properties (including the specified undivided interests in generating units and plants referred to in the Prospectus), except as otherwise indicated in the Prospectus, subject only to the respective liens of the indentures securing its mortgage debt.
(p) The Agreement has been duly authorized and validly executed by the Company.
(q) Except as disclosed in the Prospectus and subject to such qualifications as may be set forth therein, neither the Company nor any of its subsidiaries has violated any foreign, federal, state or local law or regulation relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants ("Environmental Laws"), any provisions of the Employee Retirement Income Security Act of 1974, as amended, or any provisions of the Foreign Corrupt Practices Act or the rules and regulations promulgated thereunder, except for such violation which, singly or in the aggregate, would not have a material adverse effect on the business, properties, financial condition or results of operation of the Company and its subsidiaries taken as a whole.
(r) Except as disclosed in the Prospectus and subject to such qualifications as may be set forth therein, there are no costs or liabilities associated with Environmental Laws (including, without limitation, any capital or operating expenditures required for clean-up, closure of properties or compliance with Environmental Laws or any Authorization, any related constrains on operating activities and any potential liabilities to third parties) which would singly or in the aggregate, have a material adverse effect on the business, properties, financial condition or results of operation of the Company and its subsidiaries taken as a whole.
Appears in 1 contract
Samples: Senior Debt Securities Underwriting Agreement (Niagara Mohawk Power Corp /Ny/)
Representations and Warranties by the Company. The Company represents and warrants to the Sales Agent, the Forward Seller and the Forward Purchaser as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 8(o) of this Agreement, as of that date on which any Placement Notice is given hereunder, as of the time of each sale of any Issuance Shares or Forward Hedge Shares pursuant to this Agreement (the “Applicable Time”) and as of each Settlement Date (as defined below)to, and agrees with the Sales Agentwith, the Forward Seller and the Forward Purchaser, as followseach Underwriter that:
(1a) The Company satisfies all of meets the requirements of the Securities Act for use of Form S-3 under the Securities Act of 1933, as amended (the "Act") and has filed with the Securities and Exchange Commission (the "Commission") a registration statement on such Form, including a prospectus, for the registration under the Act of the Debt Securities, which registration statement has become effective. Such registration statement and prospectus may have been amended or supplemented from time to time prior to the date of this Agreement (which date is set forth in Schedule I hereto). Any such amendment or supplement was filed with the Commission and any such amendment has become effective. The Company will file with the Commission a prospectus supplement (the "Prospectus Supplement") relating to the Debt Securities pursuant to Rule 424 and/or Rule 434 under the Act. Each prospectus used before such Prospectus Supplement has been filed that was used after the registration statement has become effective and prior to the execution and delivery of this Agreement, is herein called a "preliminary prospectus". Copies of such registration statement, any preliminary prospectus and prospectus, any such amendment or supplement and all documents incorporated by reference therein which were filed with the Commission on or prior to the date of this Agreement have been delivered to you and copies of the Prospectus Supplement will be delivered to you promptly after it is filed with the Commission. Such registration statement, as amended prior to the date of this Agreement, and such prospectus, as amended and supplemented prior to the date of this Agreement and as supplemented by the Prospectus Supplement, are hereinafter called the "Registration Statement" and the "Prospectus", respectively. Any reference herein to the Registration Statement or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 which were filed under the Securities Exchange Act of 1934, as amended (the "Exchange Act") on or before the date of this Agreement and, if the Company files any document pursuant to the Exchange Act after the date of this Agreement and prior to the termination of the offering of the Shares contemplated hereby Debt Securities by the Underwriters, which documents are deemed to be incorporated by reference into the Prospectus, the term "Prospectus" shall refer also to said prospectus as supplemented by the documents so filed from and after the offering and sale of Shares contemplated hereby complies time said documents are filed with the requirements of Rule 415 under the Securities ActCommission. At the time There are no contracts or documents of the initial filing Company that are required to be filed as exhibits to the Registration Statement or any documents incorporated by reference therein by the Act, the Exchange Act or the rules and regulations thereunder which have not been so filed.
(b) No order preventing or suspending the use of the Prospectus or the Registration Statement has been issued by the Commission and the Registration Statement, at the time date of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective amendmentthis Agreement, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Securities Act) made any offer relating to the Shares in reliance on the exemption of Rule 163 under the Securities Act and at the date hereof, the Company was and is a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act, including not having been and not being an “ineligible issuer,” as defined in Rule 405 under the Securities Act. The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 under the Securities Act, 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.” The Company has not received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting to the use of the automatic shelf registration statement form. The Company has paid or will pay the required Commission filing fees relating to the Shares within the time required by Rule 456(b)(1)(i) under the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Securities Act (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) under the Securities Act either in a post-effective amendment to the Registration Statement or on the cover page of the Prospectus).
(2) The Original Registration Statement became effective upon filing under Rule 462(e) under the Securities Act on February 12, 2020. 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 by the Commission, and any request on the part of the Commission for additional information has been complied with.
(3) Any offer that is a written communication relating to the Shares made prior to the initial filing of the Registration Statement by the Company or any person acting on its behalf (within the meaning, for this paragraph only, of Rule 163(c) under the Securities Act) has been filed with the Commission in accordance with the exemption provided by Rule 163 under the Securities Act and otherwise complied with the requirements of Rule 163 under the Securities Act, including without limitation the legending requirement.
(4) The Company has delivered or made available on XXXXX to each of the Sales Agent and the Forward Seller one complete copy of the Registration Statement and a copy of each consent and certificate of experts filed as a part thereof, and conformed copies of the Registration Statement (without exhibits) and the Prospectus, as amended or supplemented, in such quantities and at such places as the Sales Agent or the Forward Seller, as applicable, has reasonably requested. The Prospectus delivered to the Sales Agent and the Forward Seller for use in connection with the offering of Shares will, at the time of such delivery, be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(5) At the respective times the Registration Statement and each amendment thereto became effective, at each deemed effective date with respect to the Sales Agent, the Forward Seller or the Forward Purchaser pursuant to Rule 430B(f)(2) under the Securities Act, as the case may be, the Registration Statement complied and will comply in all material respects with the requirements of the Securities Act, the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act") and the respective rules and regulations of the Commission thereunder and did not and will not contain 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. The preceding sentence does not apply to statements in or omissions from the Registration Statement or any amendment thereto in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, expressly for inclusion in any of the aforementioned documents.
(6) Neither the Prospectus nor any amendments or supplements thereto, at the time the Prospectus or any such amendment or supplement was issued, as of the date hereof, at each Representation Date, at each Applicable Time, and at each Settlement Date, as the case may be, included or will include an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from the Prospectus, as amended or supplemented, in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, expressly for inclusion in any of the aforementioned documents.
(7) Each document incorporated by reference in the Registration Statement or the Prospectus heretofore filed, when it was filed (or, if any amendment with respect to any such document was filed, when such amendment was filed), conformed in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder, and any further documents so filed and incorporated after the date of this Agreement will, when they are filed, conform in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder; no such document when it was filed (or, if an amendment with respect to any such document was filed, when such amendment was filed), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and, at the time the Prospectus Supplement is filed with the Commission and no such documentat the Closing Date (as hereinafter defined), when it is filed, the Prospectus will comply in all material respects with the Act and the rules and regulations of the Commission thereunder and will not contain an any untrue statement of a material fact or will omit to state a any material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(8) Each Issuer Free Writing Prospectus (as defined herein), on its issue date, as of each Applicable Time, and as of each Settlement Date, or until any earlier date ; provided that the issuer notified Company makes no representations or notifies warranties as to (A) that part of the Sales Agent Registration Statement which shall constitute the Statement of Eligibility (Form T-1) under the Trust Indenture Act of the Trustee or the Forward Seller as described in Section 8(d(B) hereof, did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in or omitted from the Registration Statement or the Prospectus in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of any Underwriter through the Representatives specifically for use in the Registration Statement or Prospectus. Each preliminary prospectus and the prospectus filed as part of the Registration Statement as originally filed or as part of any amendment thereto, or filed pursuant to Rule 424, complied when so filed in all material respects with the Act and the rules and regulations of the Commission thereunder.
(c) The documents incorporated by reference in the Prospectus, including when they were filed with the Commission, conformed in all material respects to the requirements of the Exchange Act and the rules and regulations of the Commission thereunder, and any documents so filed and incorporated document deemed by reference subsequent to the date of this Agreement will, when they are filed with the Commission, conform in all material respects to the requirements of the Exchange Act, and the rules and regulations of the Commission thereunder; and none of such documents include or will include any untrue statement of a material fact or omit or will omit to state any 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.
(d) Xxxxxx Xxxxxxxx LLP, which audited the financial statements incorporated by reference in the Registration Statement, is an independent public accountant as required by the Act and the rules and regulations of the Commission thereunder.
(e) The financial statements of the Company filed as a part thereof that of or incorporated by reference in the Registration Statement or Prospectus fairly present the financial position of the Company as of the dates indicated and the results of their operations and changes in financial position for the periods specified, and have been prepared in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods involved, except as disclosed in the Prospectus Supplement.
(f) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of New Mexico with due corporate authority to carry on the business in which it is engaged and to own and operate the properties used by it in such business, as described in the Prospectus; the Company is qualified to do business as a foreign corporation and is in good standing under the laws of the States of Texas, Oklahoma and Kansas; and the Company is not required by the nature of its business to be licensed or qualified as a foreign corporation in any other state or jurisdiction; and, except as set forth in the Prospectus Supplement, the Company has all material licenses and approvals required at the date hereof to conduct its business.
(g) The Company has no subsidiaries.
(h) The Company has not sustained since the date of the latest audited financial statements included or incorporated by reference in the Prospectus any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus Supplement; and, since the respective dates as of which information is given in the Registration Statement and the Prospectus Supplement, the Company has not incurred any liabilities or obligations, direct or contingent, or entered into any transactions, not in the ordinary course of business, which are material to the Company, and there has not been superseded any material change in the capital stock or modified. The foregoing sentence does not apply to statements long-term debt of the Company or any material adverse change, or any development involving a prospective material adverse change, in or omissions from affecting the general affairs, management, financial position, stockholders' equity or results of operations of the Company, otherwise than as set forth or contemplated in the Prospectus Supplement.
(i) Neither the execution and delivery of this Agreement and the Indenture, the issuance and delivery of the Debt Securities, the consummation of the transactions herein contemplated, the fulfillment of the terms hereof, nor compliance with the terms and provisions of this Agreement, the Debt Securities and the Indenture will conflict with, or result in the breach of, any Issuer Free Writing Prospectus based upon and of the terms, provisions or conditions of the Articles of Incorporation, as amended, or by-laws of the Company, or of any contract, agreement or instrument to which the Company is a party or in conformity with written information furnished which the Company has a beneficial interest or by which the Company is bound or of any order, rule or regulation applicable to the Company by of any court or of any federal or state regulatory body or administrative agency or other governmental body having jurisdiction over the Sales Agent, the Forward Seller Company or the Forward Purchaser, as applicable, specifically for use thereinover its properties.
(9j) This The Debt Securities have been duly authorized for issuance and sale pursuant to this Agreement and, when executed and authenticated in accordance with the Indenture and delivered and paid for as provided herein, will be duly issued and will constitute valid and binding obligations of the Company enforceable in accordance with their terms, except as limited by bankruptcy, insolvency and other laws affecting enforcement of creditors' rights, and will be entitled to the benefits of the Indenture which will be substantially in the form heretofore delivered to you.
(k) The Indenture has been duly authorizedand validly authorized by the Company and, when duly executed and delivered by the Company Company, assuming due authorization, execution and this Agreement constitutes delivery thereof by the Trustee, will constitute a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability enforcement thereof may be limited by bankruptcy, insolvencyinsolvency or other laws affecting enforcement of creditors' rights.
(l) The Company has good and valid title to all real and fixed property and leasehold rights which are owned by it, fraudulent conveyancesubject only to taxes and assessments not yet delinquent; as to parts of the Company's property, reorganizationcertain easements, moratorium conditions, restrictions, leases, and other similar laws relating to or affecting creditors’ rights generally and by general principles encumbrances which do not affect the Company's use of equity (such property in the “Exceptions”). The Master Forward Confirmation will have been, as usual course of its datebusiness, duly authorizedand certain minor defects in titles which are not material, executed and delivered defects in titles to certain properties which are not essential to the Company's business; and mechanics' lien claims being contested or not of record or for the satisfaction or discharge of which adequate provision has been made by the Company; and any real property and buildings held under lease by the Company is held by it under valid, subsisting and when executed enforceable leases with such exceptions as are not material and delivered do not interfere with the use made and proposed to be made of such property and buildings by the Forward PurchaserCompany.
(m) Other than as set forth or contemplated in the Prospectus as of the date hereof, such Master Forward Confirmation will constitute there are no legal or governmental proceedings pending to which the Company is a valid and legally binding obligation party or of which any property of the Company enforceable against is the Company in accordance with its termssubject which, except as enforceability may be limited by the Exceptions.
(10) The Company and its “Subsidiaries” (as defined in Section 6(a)(13) hereof) have been duly incorporated or organized and are validly existing as corporations or organizations in good standing under the laws of the states or other jurisdictions in which they are incorporated or organized, with full power and authority (corporate and other) to own, lease and operate their properties and conduct their businesses as described in the Prospectus and, with respect if determined adversely to the Company, to execute and deliverwould individually or in the aggregate have a material adverse effect on the financial position, and perform stockholders' equity or results of operations of the Company’s obligations under; and, this Agreement; to the best of the Company's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others.
(n) The Company is not an "investment company" or an entity "controlled" by an "investment company," as such terms are defined in the Investment Company Act of 1940, as amended.
(o) Except as set forth in the Prospectus Supplement, the Company (A) is in compliance with any and its Subsidiaries are duly qualified all applicable federal, state and local laws and regulations relating to do business as foreign corporations the protection of human health and safety, the environment or organizations in good standing in each state hazardous or toxic substances or wastes, pollutants or contaminants ("Environmental Laws"), (B) has received all permits, licenses or other jurisdiction approvals required of it under applicable Environmental Laws to conduct its business and (C) is in which their ownership compliance with all terms and conditions of any such permits, licenses or leasing of property or conduct of business legally requires such qualificationapprovals, except where the such noncompliance with Environmental Laws, failure to be so qualifiedreceive required permits, individually licenses or other approvals or failure to comply with the terms and conditions of such permits, licenses or approvals would not, singly or in the aggregate, would not have a Material Adverse Effect. The term “Material Adverse Effect” as used herein means any material adverse effect on the condition Company.
(financial or other), net worth, business, affairs, management, prospects, results of operations or cash flow p) All approvals and authorizations from the New Mexico Public Regulation Commission which are required for the valid authorization and issuance of the Debt Securities and the valid sale thereof under this Agreement, have been obtained and are in full force and effect and the approval of no other governmental or regulatory authority or body is necessary in connection with the issuance and sale by the Company of the Debt Securities pursuant to this Agreement, except that there must be compliance with the securities laws in the jurisdictions in which the Debt Securities are to be offered and sold.
(q) The franchises held by the Company, together with the applicable Certificates of Convenience and Necessity issued by the New Mexico Public Regulation Commission, give the Company all necessary authority for the maintenance and operation of its Subsidiariesproperties and business as now conducted, taken as a wholeand are free from burdensome restrictions or conditions of an unusual character.
Appears in 1 contract
Samples: Underwriting Agreement (Southwestern Public Service Co)
Representations and Warranties by the Company. The Company hereby represents and warrants to the Sales Agent, the Forward Seller and the Forward Purchaser as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 8(o) of this Agreement, as of that date on which any Placement Notice is given hereunder, as of the time of each sale of any Issuance Shares or Forward Hedge Shares pursuant to this Agreement (the “Applicable Time”) and as of each Settlement Date (as defined below), and agrees with the Sales Agent, the Forward Seller and the Forward Purchaser, as followsInvestors that:
(1a) The Company satisfies all of the requirements of the Securities Act for use of Form S-3 for the offering of the Shares contemplated hereby and the offering and sale of Shares contemplated hereby complies with the requirements of Rule 415 under the Securities Act. At the time of the initial filing of the Registration Statement, at the time of the most recent amendment thereto 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), at the time the Company or any person acting on its behalf (within the meaningis validly organized, for this clause only, of Rule 163(c) under the Securities Act) made any offer relating to the Shares in reliance on the exemption of Rule 163 under the Securities Act existing and at the date hereof, the Company was and is a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act, including not having been and not being an “ineligible issuer,” as defined in Rule 405 under the Securities Act. The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 under the Securities Act, 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.” The Company has not received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting to the use of the automatic shelf registration statement form. The Company has paid or will pay the required Commission filing fees relating to the Shares within the time required by Rule 456(b)(1)(i) under the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Securities Act (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) under the Securities Act either in a post-effective amendment to the Registration Statement or on the cover page of the Prospectus).
(2) The Original Registration Statement became effective upon filing under Rule 462(e) under the Securities Act on February 12, 2020. 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 by the Commission, and any request on the part of the Commission for additional information has been complied with.
(3) Any offer that is a written communication relating to the Shares made prior to the initial filing of the Registration Statement by the Company or any person acting on its behalf (within the meaning, for this paragraph only, of Rule 163(c) under the Securities Act) has been filed with the Commission in accordance with the exemption provided by Rule 163 under the Securities Act and otherwise complied with the requirements of Rule 163 under the Securities Act, including without limitation the legending requirement.
(4) The Company has delivered or made available on XXXXX to each of the Sales Agent and the Forward Seller one complete copy of the Registration Statement and a copy of each consent and certificate of experts filed as a part thereof, and conformed copies of the Registration Statement (without exhibits) and the Prospectus, as amended or supplemented, in such quantities and at such places as the Sales Agent or the Forward Seller, as applicable, has reasonably requested. The Prospectus delivered to the Sales Agent and the Forward Seller for use in connection with the offering of Shares will, at the time of such delivery, be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(5) At the respective times the Registration Statement and each amendment thereto became effective, at each deemed effective date with respect to the Sales Agent, the Forward Seller or the Forward Purchaser pursuant to Rule 430B(f)(2) under the Securities Act, as the case may be, the Registration Statement complied and will comply in all material respects with the requirements of the Securities Act, and did not 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. The preceding sentence does not apply to statements in or omissions from the Registration Statement or any amendment thereto in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, expressly for inclusion in any of the aforementioned documents.
(6) Neither the Prospectus nor any amendments or supplements thereto, at the time the Prospectus or any such amendment or supplement was issued, as of the date hereof, at each Representation Date, at each Applicable Time, and at each Settlement Date, as the case may be, included or will include an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from the Prospectus, as amended or supplemented, in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, expressly for inclusion in any of the aforementioned documents.
(7) Each document incorporated by reference in the Registration Statement or the Prospectus heretofore filed, when it was filed (or, if any amendment with respect to any such document was filed, when such amendment was filed), conformed in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder, and any further documents so filed and incorporated after the date of this Agreement will, when they are filed, conform in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder; no such document when it was filed (or, if an amendment with respect to any such document was filed, when such amendment was filed), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and no such document, when it is filed, will contain an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(8) Each Issuer Free Writing Prospectus (as defined herein), on its issue date, as of each Applicable Time, and as of each Settlement Date, or until any earlier date that the issuer notified or notifies the Sales Agent or the Forward Seller as described in Section 8(d) hereof, 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 incorporated document deemed to be a part thereof that has not been superseded or modified. The foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with written information furnished to the Company by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, specifically for use therein.
(9) This Agreement has been duly authorized, executed and delivered by the Company and this Agreement constitutes a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and by general principles of equity (the “Exceptions”). The Master Forward Confirmation will have been, as of its date, duly authorized, executed and delivered by the Company and when executed and delivered by the Forward Purchaser, such Master Forward Confirmation will constitute a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by the Exceptions.
(10) The Company and its “Subsidiaries” (as defined in Section 6(a)(13) hereof) have been duly incorporated or organized and are validly existing as corporations or organizations in good standing under the laws of the states or other jurisdictions in which they are incorporated or organizedDelaware, with full power and authority (corporate and other) to own, lease and operate their properties and conduct their businesses as described in the Prospectus and, with respect to the Company, to execute and deliver, and perform the Company’s obligations under, this Agreement; the Company and its Subsidiaries are is duly qualified to do business as foreign corporations or organizations and is in good standing as a foreign entity in each state or other jurisdiction in which their ownership or leasing where the nature of property or conduct of its business legally requires such qualification, except where the failure to be so qualified, individually or in the aggregate, would qualified could not reasonably be expected to have a Material Adverse Effect. The term “Material Adverse Effect” as used herein means any material adverse effect on the condition Company, and has full power and authority to enter into and perform its obligations under or with respect to this Agreement, to issue the Units to the Investor in accordance with the terms hereof;
(financial b) the execution, delivery and performance by the Company of this Agreement and the issuance of the Units in accordance with the terms hereof, are within its organizational powers and have been duly authorized by all necessary organizational action on the part of the Company;
(c) this Agreement has been duly executed and delivered by the Company and this Agreement constitutes the legal, valid and binding obligations of the Company, enforceable against the Company in accordance with its respective terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or othersimilar laws affecting creditors' rights generally and by general principles of equity (whether considered in a proceeding at law or equity));
(d) the Units issued pursuant to this Agreement will be duly authorized, net worthvalidly issued and non-assessable;
(e) immediately after the Effective Time, businessthe Company does not have any outstanding Equity Interests other than as set forth on Exhibit A to the LLC Agreement as of the date hereof and, affairsother than as set forth herein, managementin the LLC Agreement or the Related Documents, prospectsthere are no outstanding obligations of the Company (contingent or otherwise) to repurchase or otherwise acquire or retire any of its Equity Interests or voting trusts, results proxies or other agreements among holders of operations the Company’s Equity Interests with respect to the voting or cash flow transfer of any of its Equity Interests other than the LLC Agreement and the Related Documents; and
(f) the proceeds contributed to the Company pursuant to Section 1(b) will be used solely to fund the completion of the Phase I Projects, pay the ongoing operating and administrative expenses of the Company and its Subsidiaries, taken repay certain indebtedness and fees of the Company and its Subsidiaries (including the Investor Fee (as a wholedefined in the Purchase Agreement)).
Appears in 1 contract
Samples: Contribution and Subscription Agreement (RiceBran Technologies)
Representations and Warranties by the Company. The Company represents and warrants to the Sales Agent, the Forward Seller and the Forward Purchaser as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 8(o) of this Agreement, as of that date on which any Placement Notice is given hereunder, as of the time of each sale of any Issuance Shares or Forward Hedge Shares pursuant to this Agreement (the “Applicable Time”) and as of each Settlement Date (as defined below)to, and agrees with the Sales Agentwith, the Forward Seller and the Forward Purchaser, as followseach Underwriter that:
(1a) The Company satisfies all of meets the requirements of the Securities Act for use of Form S-3 under the Securities Act of 1933, as amended (the “Act”) and has filed with the Securities and Exchange Commission (the “Commission”) a registration statement on such Form, including a prospectus, for the registration under the Act of the Shares, which registration statement has become effective. Such registration statement and prospectus may have been amended or supplemented from time to time prior to the date of this Agreement (which date is set forth in Schedule I hereto). Any such amendment or supplement was filed with the Commission and any such amendment has become effective. Each prospectus used before the registration statement became effective, and any prospectus that omitted the offering terms that was used after such effectiveness and prior to the execution and delivery of this Agreement, is herein called a “preliminary prospectus.” The Company will file with the Commission a prospectus supplement (the “Prospectus Supplement”) relating to the Shares pursuant to Rule 424 and/or Rule 434 under the Act. Copies of such registration statement and prospectus, any such amendment or supplement and all documents incorporated by reference therein which were filed with the Commission on or prior to the date of this Agreement have been delivered to you and copies of the Prospectus Supplement will be delivered to you promptly after it is filed with the Commission. Such registration statement, as amended prior to the date of this Agreement, and such prospectus, as amended and supplemented prior to the date of this Agreement and as supplemented by the Prospectus Supplement, are hereinafter called the “Registration Statement” and the “Prospectus”, respectively. Any reference herein to the Registration Statement or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 which were filed under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) on or before the date of this Agreement and, if the Company files any document pursuant to the Exchange Act after the date of this Agreement and prior to the termination of the offering of the Shares contemplated hereby by the Underwriters, which documents are deemed to be incorporated by reference into the Prospectus, the term “Prospectus” shall refer also to said prospectus as supplemented by the documents so filed from and after the offering and sale of Shares contemplated hereby complies time said documents are filed with the requirements of Rule 415 under the Securities ActCommission. At the time There are no contracts or documents of the initial filing Company or any of its subsidiaries that are required to be filed as exhibits to the Registration Statement or any documents incorporated by reference therein by the Act, the Exchange Act or the rules and regulations thereunder which have not been so filed.
(b) No order preventing or suspending the use of the Prospectus or the Registration Statement has been issued by the Commission and the Registration Statement, at the time date of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective amendmentthis Agreement, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Securities Act) made any offer relating to the Shares in reliance on the exemption of Rule 163 under the Securities Act and at the date hereof, the Company was and is a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act, including not having been and not being an “ineligible issuer,” as defined in Rule 405 under the Securities Act. The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 under the Securities Act, 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.” The Company has not received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting to the use of the automatic shelf registration statement form. The Company has paid or will pay the required Commission filing fees relating to the Shares within the time required by Rule 456(b)(1)(i) under the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Securities Act (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) under the Securities Act either in a post-effective amendment to the Registration Statement or on the cover page of the Prospectus).
(2) The Original Registration Statement became effective upon filing under Rule 462(e) under the Securities Act on February 12, 2020. 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 by the Commission, and any request on the part of the Commission for additional information has been complied with.
(3) Any offer that is a written communication relating to the Shares made prior to the initial filing of the Registration Statement by the Company or any person acting on its behalf (within the meaning, for this paragraph only, of Rule 163(c) under the Securities Act) has been filed with the Commission in accordance with the exemption provided by Rule 163 under the Securities Act and otherwise complied with the requirements of Rule 163 under the Securities Act, including without limitation the legending requirement.
(4) The Company has delivered or made available on XXXXX to each of the Sales Agent and the Forward Seller one complete copy of the Registration Statement and a copy of each consent and certificate of experts filed as a part thereof, and conformed copies of the Registration Statement (without exhibits) and the Prospectus, as amended or supplemented, in such quantities and at such places as the Sales Agent or the Forward Seller, as applicable, has reasonably requested. The Prospectus delivered to the Sales Agent and the Forward Seller for use in connection with the offering of Shares will, at the time of such delivery, be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(5) At the respective times the Registration Statement and each amendment thereto became effective, at each deemed effective date with respect to the Sales Agent, the Forward Seller or the Forward Purchaser pursuant to Rule 430B(f)(2) under the Securities Act, as the case may be, the Registration Statement complied and will comply in all material respects with the requirements of the Securities Act, Act and the respective rules and regulations of the Commission thereunder and did not and will not contain 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. The preceding sentence does not apply to statements in or omissions from the Registration Statement or any amendment thereto in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, expressly for inclusion in any of the aforementioned documents.
(6) Neither the Prospectus nor any amendments or supplements thereto, at the time the Prospectus or any such amendment or supplement was issued, as of the date hereof, at each Representation Date, at each Applicable Time, and at each Settlement Date, as the case may be, included or will include an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from the Prospectus, as amended or supplemented, in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, expressly for inclusion in any of the aforementioned documents.
(7) Each document incorporated by reference in the Registration Statement or the Prospectus heretofore filed, when it was filed (or, if any amendment with respect to any such document was filed, when such amendment was filed), conformed in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder, and any further documents so filed and incorporated after the date of this Agreement will, when they are filed, conform in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder; no such document when it was filed (or, if an amendment with respect to any such document was filed, when such amendment was filed), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and, at the time the Prospectus Supplement is filed with the Commission and no such documentat the Closing Date (as hereinafter defined), when it is filed, the Prospectus will comply in all material respects with the Act and the rules and regulations of the Commission thereunder and will not contain an any untrue statement of a material fact or will omit to state a any material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(8) Each Issuer Free Writing Prospectus (as defined herein), on its issue date, as of each Applicable Time, and as of each Settlement Date, or until any earlier date ; provided that the issuer notified Company makes no representations or notifies the Sales Agent or the Forward Seller warranties as described in Section 8(d) hereof, did not, does not and will not include any information that conflicted, conflicts or will conflict with to the information contained in or omitted from the Registration Statement or the Prospectus in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of any Underwriter specifically for use in the Registration Statement or Prospectus. Each preliminary prospectus and the prospectus filed as part of the Registration Statement as originally filed or as part of any amendment thereto, or filed pursuant to Rule 424 of the Act, complied when so filed in all material respects with the rules under the Act, and each preliminary prospectus and the Prospectus delivered to the Underwriters for use in connection with this offering was identical to the electronically transmitted copies thereof filed with the Commission pursuant to EXXXX, except to the extent permitted by Regulation S-T.
(c) The documents incorporated by reference in the Prospectus, including when they were filed with the Commission, conformed in all material respects to the requirements of the Exchange Act and the rules and regulations of the Commission thereunder, and any documents so filed and incorporated document deemed by reference subsequent to the date of this Agreement will, when they are filed with the Commission, conform in all material respects to the requirements of the Exchange Act, and the rules and regulations of the Commission thereunder; and none of such documents include or will include any untrue statement of a material fact or omit or will omit to state any 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.
(d) Axxxxx Axxxxxxx LLP, which audited certain of the financial statements incorporated by reference in the Registration Statement, is an independent public accountant as required by the Act and the rules and regulations of the Commission thereunder.
(e) The financial statements of the Company and its consolidated subsidiaries filed as a part thereof that has not of or incorporated by reference in the Registration Statement or Prospectus fairly present the financial position of the Company and its consolidated subsidiaries as of the dates indicated and the results of their operations and changes in financial position for the periods specified, and have been superseded or modified. The foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and prepared in conformity with written information furnished to generally accepted accounting principles applied on a consistent basis throughout the Company by periods involved, except as disclosed in the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, specifically for use thereinProspectus Supplement.
(9f) This Agreement The Company has been duly authorized, executed incorporated and delivered by the Company and this Agreement constitutes a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and by general principles of equity (the “Exceptions”). The Master Forward Confirmation will have been, as of its date, duly authorized, executed and delivered by the Company and when executed and delivered by the Forward Purchaser, such Master Forward Confirmation will constitute a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by the Exceptions.
(10) The Company and its “Subsidiaries” (as defined in Section 6(a)(13) hereof) have been duly incorporated or organized and are is validly existing as corporations or organizations a corporation in good standing under the laws of the states or other jurisdictions State of Minnesota with due corporate authority to carry on the business in which they are incorporated or organized, with full power it is engaged and authority (corporate and other) to own, lease own and operate their the properties and conduct their businesses used by it in such business, as described in the Prospectus and, with respect to the Company, to execute and deliver, and perform the Company’s obligations under, this AgreementProspectus; the Company and its Subsidiaries are duly is qualified to do business as a foreign corporations corporation and is in good standing under the laws of the States of North Dakota, South Dakota and Colorado; and the Company is not required by the nature of its business to be licensed or organizations qualified as a foreign corporation in any other state or jurisdiction; and, except as set forth in the Prospectus Supplement, the Company has all material licenses and approvals required at the date hereof to conduct its business.
(g) Each subsidiary of the Company named in Exhibit 21.01 to the Company’s most recent Annual Report on Form 10-K (“Significant Subsidiary”) has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation and is duly qualified as a foreign corporation to transact business and is in good standing in each state or other jurisdiction in which their ownership it owns or leasing of property leases substantial properties or in which the conduct of its business legally requires such qualification; all of the issued and outstanding capital stock of each such subsidiary has been duly authorized and validly issued and is fully paid and non-assessable; and the capital stock of each such subsidiary owned by the Company, directly or through subsidiaries, is owned free and clear of any pledge, lien, encumbrance, claim or equity.
(h) Neither the Company nor any of its subsidiaries has sustained since the date of the latest audited financial statements included or incorporated by reference in the Prospectus any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus Supplement; and, since the respective dates as of which information is given in the Registration Statement and the Prospectus Supplement, neither the Company nor any of its subsidiaries has incurred any liabilities or obligations, direct or contingent, or entered into any transactions, not in the ordinary course of business, which are material to the Company and its subsidiaries, and there has not been any material change in the capital stock or long-term debt of the Company or any of its subsidiaries or any material adverse change, or any development involving a prospective material adverse change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Prospectus Supplement.
(i) Neither the execution and delivery of this Agreement, the issuance and delivery of the Shares, the consummation of the transactions herein contemplated, the fulfillment of the terms hereof, nor compliance with the terms and provisions of this Agreement, will conflict with, or result in the breach of, any of the terms, provisions or conditions of the Restated Articles of Incorporation, as amended, or by-laws of the Company, or of any contract, agreement or instrument to which the Company is a party or in which the Company has a beneficial interest or by which the Company is bound or of any order, rule or regulation applicable to the Company of any court or of any federal or state regulatory body or administrative agency or other governmental body having jurisdiction over the Company or over its properties.
(j) The Shares have been duly authorized for issuance and sale pursuant to this Agreement and, when issued and delivered and paid for as provided herein, will be duly authorized, validly issued and fully paid and nonassessable and will conform to the description of the Common Stock in the Registration Statement and Prospectus. Shareholders of the Company will have no preemptive rights with respect to the issuance of the Shares.
(k) The Agreement has been duly and validly authorized, executed and delivered by the Company.
(l) The Securities and Exchange Commission has issued a financing order under the Public Utility Holding Company Act of 1935, which order authorizes the issuance of the Shares, and no other approval of any regulatory public body, state or federal, is, or will be at the Closing Date (as hereinafter defined), necessary in connection with the issuance and sale of the Shares pursuant to this Agreement, other than approvals that may be required under state securities laws.
(m) The Company has good and valid title to all real and fixed property and leasehold rights which are owned by it, subject only to taxes and assessments not yet delinquent; as to parts of the Company’s property, certain easements, conditions, restrictions, leases, and similar encumbrances which do not affect the Company’s use of such property in the usual course of its business, and certain minor defects in titles which are not material, and defects in titles to certain properties which are not essential to the Company’s business; and mechanics’ lien claims being contested or not of record or for the satisfaction or discharge of which adequate provision has been made by the Company; and any real property and buildings held under lease by the Company is held by it under valid, subsisting and enforceable leases with such exceptions as are not material and do not interfere with the use made and proposed to be made of such property and buildings by the Company.
(n) Other than as set forth or contemplated in the Prospectus as of the date hereof, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries; and, to the best of the Company’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others.
(o) The Company is not an “investment company” or an entity “controlled” by an “investment company,” as such terms are defined in the Investment Company Act of 1940, as amended.
(p) Except as set forth in the Prospectus Supplement, the Company and its subsidiaries (A) are in compliance with any and all applicable federal, state and local laws and regulations relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants (“Environmental Laws”), (B) have received all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct its respective business and (C) are in compliance with all terms and conditions of any such permits, licenses or approvals, except where the such noncompliance with Environmental Laws, failure to be so qualifiedreceive required permits, individually licenses or other approvals or failure to comply with the terms and conditions of such permits, licenses or approvals would not, singly or in the aggregate, would not have a Material Adverse Effect. The term “Material Adverse Effect” as used herein means any material adverse effect on the condition (financial or other), net worth, business, affairs, management, prospects, results of operations or cash flow of the Company and its Subsidiariessubsidiaries, taken as a whole.
(q) The authorized, issued and outstanding capital stock of the Company is as set forth in the Prospectus; the shares of issued and outstanding capital stock of the Company have been duly and validly issued and are fully paid and non-assessable.
Appears in 1 contract
Representations and Warranties by the Company. The Company represents and warrants to the Sales Agent, the Forward Seller and the Forward Purchaser KBW as of (i) the date hereof and as of hereof, (ii) each date on which a Placement Notice becomes effective pursuant to Section 2 hereof, (iii) each Representation Date (as defined belowherein) on which a certificate is certificates are required to be delivered pursuant to Section 8(o7(o) of this Agreement, as of that date on which any Placement Notice is given hereunder, as of (iv) the time of each sale of any Issuance Shares Securities or Forward Hedge Shares any securities pursuant to this Agreement (the “Applicable Time”) and as of (v) each Settlement Date (as defined below), and agrees with the Sales Agent, the Forward Seller and the Forward PurchaserKBW, as follows:follows (provided, that the representations and warranties of the Company set forth in Section 5(36)(ii) are only made as of the date hereof):
(1) The Company satisfies all of the requirements of Securities have been duly registered under the Securities Act for use of Form S-3 for pursuant to the offering of the Shares contemplated hereby and the offering and sale of Shares contemplated hereby complies with the requirements of Rule 415 Registration Statement. The Registration Statement has become effective under the Securities Act. At , or, with respect to any registration statement to be filed to register the time of the initial filing of the Registration Statement, at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) offer and sale of the Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(dRule 462(b) of the Exchange Act or form of prospectus), at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Securities Act) made any offer relating to the Shares in reliance on the exemption of Rule 163 under the Securities Act and at the date hereof, the Company was and is a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act, including not having been and not being an the documents incorporated by reference therein (a “ineligible issuer,” as defined in Rule 405 under the Securities Act. The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 under the Securities Act, and the Shares, since their registration on the 462(b) Registration Statement”), have been and remain eligible for registration by the Company on a Rule 405 “automatic shelf registration statement.” The Company has not received from will be filed with the Commission any notice pursuant to Rule 401(g)(2) and become effective under the Securities Act objecting prior to the time of any sale of Securities pursuant to such Rule 462(b) Registration Statement, and no stop order preventing or suspending the use of any base prospectus, the automatic shelf registration statement form. The Company has paid Prospectus Supplement, the Prospectus or will pay the required Commission filing fees relating to the Shares within the time required by Rule 456(b)(1)(i) under the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Securities Act any Permitted Free Writing Prospectus (includingas defined below), if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) under the Securities Act either in a post-effective amendment to the Registration Statement or on the cover page of the Prospectus).
(2) The Original Registration Statement became effective upon filing under Rule 462(e) under the Securities Act on February 12, 2020. No stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act or any Rule 462(b) Registration Statement and no proceedings for that such purpose have been instituted or are pending or, to the knowledge of the Company, are contemplated by the Commission, and any request on the part of the Commission for additional information has been complied with.
(3) Any offer that is a written communication relating to the Shares made prior to the initial filing of the Registration Statement by the Company or any person acting on its behalf (within the meaning, for this paragraph only, of Rule 163(c) under the Securities Act) has been filed with the Commission in accordance with the exemption provided by Rule 163 under the Securities Act and otherwise complied with the requirements of Rule 163 under the Securities Act, including without limitation the legending requirement.
(4) The Company has delivered or made available on XXXXX to each of the Sales Agent and the Forward Seller one complete copy of the Registration Statement and a copy of each consent and certificate of experts filed as a part thereof, and conformed copies of the Registration Statement (without exhibits) and the Prospectus, as amended or supplemented, in such quantities and at such places as the Sales Agent or the Forward Seller, as applicable, has reasonably requested. The Prospectus delivered to the Sales Agent and the Forward Seller for use in connection with the offering of Shares will, at the time of such delivery, be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(5) At the respective times each of the Registration Statement, any Rule 462(b) Registration Statement and each amendment any post-effective amendments thereto became effective, at each deemed or becomes effective and as of the date with respect to the Sales Agent, the Forward Seller or the Forward Purchaser pursuant to Rule 430B(f)(2) under the Securities Act, as the case may behereof, the Registration Statement, any Rule 462(b) Registration Statement and any amendments and supplements thereto complied and will comply in all material respects with the requirements of the Securities Act. The conditions for the use of Form S-3, as set forth in the General Instructions thereto, have been complied with and the Registration Statement meets, and the offering and sale of the Securities as contemplated hereby complies with, the requirements of Rule 415 under the Securities Act (including without limitation, Rule 415(a)(5)). The initial effective date of the Registration Statement was not earlier than the date three years before the date of this Agreement. The Registration Statement, as of the date hereof and each effective date with respect thereto, did not 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 in order to make the statements therein not misleading. The preceding sentence does not apply to statements in or omissions from the Registration Statement or any amendment thereto in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, expressly for inclusion in any of the aforementioned documents.
(6) Neither the Prospectus nor any amendments or supplements thereto, at the time the Prospectus or any such amendment or supplement was issued, as of the date hereof, at each Representation Date, at each Applicable Timetheir respective dates, and at each Applicable Time and Settlement Date, as the case may be, included or will include an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The representations and warranties set forth in the immediately preceding sentence does paragraph shall not apply to statements in or omissions from the Registration Statement or the Prospectus, as amended or supplemented, made in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, KBW expressly for inclusion in any of the aforementioned documents.
(7) Each document incorporated by reference in the Registration Statement or the Prospectus heretofore filed, when it was filed (or, if any amendment with respect to any such document was filed, when such amendment was filed), conformed in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder, and any further documents so filed and incorporated after the date of this Agreement will, when they are filed, conform in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder; no such document when it was filed (or, if an amendment with respect to any such document was filed, when such amendment was filed), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and no such document, when it is filed, will contain an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(8) Each Issuer Free Writing Prospectus (as defined herein), on its issue date, as of each Applicable Time, and as of each Settlement Date, or until any earlier date that the issuer notified or notifies the Sales Agent or the Forward Seller as described in Section 8(d) hereof, 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 incorporated document deemed to be a part thereof that has not been superseded or modified. The foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with written information furnished to the Company by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, specifically for use therein.
(9) This Agreement has been duly authorized, executed it being understood and delivered agreed that the only such information furnished by the Company and this Agreement constitutes a valid and legally binding obligation KBW consists of the Company enforceable against the Company in accordance with its terms, except information described as enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and by general principles of equity (the “Exceptions”). The Master Forward Confirmation will have been, as of its date, duly authorized, executed and delivered by the Company and when executed and delivered by the Forward Purchaser, such Master Forward Confirmation will constitute a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by the Exceptions.
(10) The Company and its “Subsidiaries” (as defined in Section 6(a)(1310(b) hereof) have been duly incorporated or organized and are validly existing as corporations or organizations in good standing under the laws of the states or other jurisdictions in which they are incorporated or organized, with full power and authority (corporate and other) to own, lease and operate their properties and conduct their businesses as described in the Prospectus and, with respect to the Company, to execute and deliver, and perform the Company’s obligations under, this Agreement; the Company and its Subsidiaries are duly qualified to do business as foreign corporations or organizations in good standing in each state or other jurisdiction in which their ownership or leasing of property or conduct of business legally requires such qualification, except where the failure to be so qualified, individually or in the aggregate, would not have a Material Adverse Effect. The term “Material Adverse Effect” as used herein means any material adverse effect on the condition (financial or other), net worth, business, affairs, management, prospects, results of operations or cash flow of the Company and its Subsidiaries, taken as a whole.
Appears in 1 contract
Samples: Equity Distribution Agreement (Blackstone Mortgage Trust, Inc.)
Representations and Warranties by the Company. The Company hereby covenants, represents and warrants to the Sales Agent, the Forward Seller and the Forward Purchaser as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 8(o) of this Agreement, as of that date on which any Placement Notice is given hereunder, as of the time of each sale of any Issuance Shares or Forward Hedge Shares pursuant to this Agreement (the “Applicable Time”) and as of each Settlement Date (as defined below), and agrees with the Sales Agent, the Forward Seller and the Forward Purchaser, as followsWarrantholder that:
(1a) The Company satisfies all it is a corporation organized and validly existing under the laws of the requirements State of the Securities Act for use of Form S-3 for the offering of the Shares contemplated hereby and the offering and sale of Shares contemplated hereby complies with the requirements of Rule 415 under the Securities Act. At the time of the initial filing of the Registration Statement, at the time of the most recent amendment thereto 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), at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Securities Act) made any offer relating to the Shares in reliance on the exemption of Rule 163 under the Securities Act and at the date hereof, the Company was and is a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act, including not having been and not being an “ineligible issuer,” as defined in Rule 405 under the Securities Act. The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 under the Securities Act, 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.” The Company has not received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting to the use of the automatic shelf registration statement form. The Company has paid or will pay the required Commission filing fees relating to the Shares within the time required by Rule 456(b)(1)(i) under the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Securities Act (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) under the Securities Act either in a post-effective amendment to the Registration Statement or on the cover page of the Prospectus).Maryland;
(2b) The Original Registration Statement became effective upon filing under Rule 462(e) under the Securities Act on February 12, 2020. 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 by the Commission, and any request on the part of the Commission for additional information has been complied with.
(3) Any offer that is a written communication relating to the Shares made prior to the initial filing of the Registration Statement by the Company or any person acting on its behalf (within the meaning, for this paragraph only, of Rule 163(c) under the Securities Act) has been filed with the Commission in accordance with the exemption provided by Rule 163 under the Securities Act and otherwise complied with the requirements of Rule 163 under the Securities Act, including without limitation the legending requirement.
(4) The Company has delivered or made available on XXXXX to each of the Sales Agent and the Forward Seller one complete copy of the Registration Statement and a copy of each consent and certificate of experts filed as a part thereof, and conformed copies of the Registration Statement (without exhibits) and the Prospectus, as amended or supplemented, in such quantities and at such places as the Sales Agent or the Forward Seller, as applicable, has reasonably requested. The Prospectus delivered to the Sales Agent and the Forward Seller for use in connection with the offering of Shares will, at the time of such delivery, be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(5) At the respective times the Registration Statement and each amendment thereto became effective, at each deemed effective date with respect to the Sales Agent, the Forward Seller or the Forward Purchaser pursuant to Rule 430B(f)(2) under the Securities Act, as the case may be, the Registration Statement complied and will comply in all material respects with the requirements of the Securities Act, and did not 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. The preceding sentence does not apply to statements in or omissions from the Registration Statement or any amendment thereto in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, expressly for inclusion in any of the aforementioned documents.
(6) Neither the Prospectus nor any amendments or supplements thereto, at the time the Prospectus or any such amendment or supplement was issued, as of the date hereof, at each Representation Date, at each Applicable Time, and at each Settlement Date, as the case may be, included or will include an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from the Prospectus, as amended or supplemented, in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, expressly for inclusion in any of the aforementioned documents.
(7) Each document incorporated by reference in the Registration Statement or the Prospectus heretofore filed, when it was filed (or, if any amendment with respect to any such document was filed, when such amendment was filed), conformed in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder, and any further documents so filed and incorporated after the date of this Agreement will, when they are filed, conform in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder; no such document when it was filed (or, if an amendment with respect to any such document was filed, when such amendment was filed), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and no such document, when it is filed, will contain an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(8) Each Issuer Free Writing Prospectus (as defined herein), on its issue date, as of each Applicable Time, and as of each Settlement Date, or until any earlier date that the issuer notified or notifies the Sales Agent or the Forward Seller as described in Section 8(d) hereof, 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 incorporated document deemed to be a part thereof that has not been superseded or modified. The foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with written information furnished to the Company by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, specifically for use therein.
(9) This Agreement has been duly authorized, executed and delivered by on its behalf and constitutes the Company and this Agreement constitutes a legal, valid and legally binding obligation of the Company enforceable against Company;
(c) the execution, delivery and performance of this Agreement by the Company does not and will not violate any applicable law or regulation and does not require the consent of any governmental or other regulatory body except for such consents and approvals as have been obtained and are in full force and effect;
(d) it has not adopted, and will not adopt, any resolution electing to be, or to make any share of Stock, subject to any of the provisions of the Maryland Control Share Acquisition Act or the Maryland Business Combination Act (as amended or supplemented from time to time and collectively, the "Maryland Interested Shareholder Statutes") and all shares of Stock currently outstanding or issued in the future are and will be exempt from the Maryland Interested Shareholder Statutes to the fullest extent permitted by Maryland law;
(e) the Board has on or prior to the Closing Date (i) on the basis of representations and warranties of the Warrantholders in Section 18(c), duly exempted the Warrantholders from the ownership limitation imposed by section 5.2(b)(i)(w) of the Company's charter (as amended and restated as of the date hereof, the "Company's Articles") pursuant to and in accordance with its termsArticle 5.2(f) the Company's Articles, except as enforceability may be limited by bankruptcy(ii) approved, insolvencyand the Audit Committee of the Board has expressly approved, fraudulent conveyance, reorganization, moratorium and other similar laws relating the exception set forth in Paragraph 312.05 of the NYSE Listed Company Manual to or affecting creditors’ rights generally and by general principles of equity the shareholder approval policy set forth in Paragraph 312.03 thereof (the “Exceptions”). The Master Forward Confirmation will have been, as of its date, duly authorized, executed "Exception") and delivered by (iii) directed that there be promptly mailed (and in no event later than 10 days prior to the Company and when executed and delivered by the Forward Purchaser, such Master Forward Confirmation will constitute a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by the Exceptions.
(10) The Company and its “Subsidiaries” (as defined in Section 6(a)(13) hereof) have been duly incorporated or organized and are validly existing as corporations or organizations in good standing under the laws of the states or other jurisdictions in which they are incorporated or organized, with full power and authority (corporate and otherInitial Exercise Date) to own, lease and operate their properties and conduct their businesses as described in the Prospectus and, with respect all shareholders a letter alerting them to the Company, 's omission to execute seek the shareholder approval that would otherwise be required absent the Exception and deliverindicating that the Audit Committee of the Board has expressly approved the Exception; and
(f) all transactions contemplated by this Agreement are in compliance with, and perform not in violation of any applicable securities laws, regulations or rules, including, without limitation, the Company’s obligations under, this Agreement; Securities Act or the Company and its Subsidiaries are duly qualified to do business as foreign corporations or organizations in good standing in each state or other jurisdiction in which their ownership or leasing of property or conduct of business legally requires such qualification, except where the failure to be so qualified, individually or in the aggregate, would not have a Material Adverse Effect. The term “Material Adverse Effect” as used herein means any material adverse effect on the condition (financial or other), net worth, business, affairs, management, prospects, results of operations or cash flow of the Company and its Subsidiaries, taken as a wholeExchange Act.
Appears in 1 contract
Samples: Capital Stock Warrant Agreement (Arco Capital Corp LTD)
Representations and Warranties by the Company. The Company represents and warrants to the Sales Agent, the Forward Seller and the Forward Purchaser as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 8(o) of this Agreement, as of that date on which any Placement Notice is given hereunder, as of the time of each sale of any Issuance Shares or Forward Hedge Shares pursuant to this Agreement (the “Applicable Time”) and as of each Settlement Date (as defined below)to, and agrees with the Sales Agentwith, the Forward Seller and the Forward Purchaser, as followseach Underwriter that:
(1a) The Company satisfies all of meets the requirements of the Securities Act for use of Form S-3 under the Securities Act of 1933, as amended (the "Act") and has filed with the Securities and Exchange Commission (the "Commission") a registration statement on such Form, including a prospectus, for the registration under the Act of the Debt Securities, which registration statement has become effective. Such registration statement and prospectus may have been amended or supplemented from time to time prior to the date of this Agreement (which date is set forth in Schedule I hereto). Any such amendment or supplement was filed with the Commission and any such amendment has become effective. The Company will file with the Commission a prospectus supplement (the "Prospectus Supplement") relating to the Debt Securities pursuant to Rule 424 and/or Rule 434 under the Act. Copies of such registration statement and prospectus, any such amendment or supplement and all documents incorporated by reference therein which were filed with the Commission on or prior to the date of this Agreement have been delivered to you and copies of the Prospectus Supplement will be delivered to you promptly after it is filed with the Commission. Such registration statement, as amended prior to the date of this Agreement, and such prospectus, as amended and supplemented prior to the date of this Agreement and as supplemented by the Prospectus Supplement, are hereinafter called the "Registration Statement" and the "Prospectus", respectively. Any reference herein to the Registration Statement or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 which were filed under the Securities Exchange Act of 1934, as amended (the "Exchange Act") on or before the date of this Agreement and, if the Company files any document pursuant to the Exchange Act after the date of this Agreement and prior to the termination of the offering of the Shares contemplated hereby Debt Securities by the Underwriters, which documents are deemed to be incorporated by reference into the Prospectus, the term "Prospectus" shall refer also to said prospectus as supplemented by the documents so filed from and after the offering and sale of Shares contemplated hereby complies time said documents are filed with the requirements of Rule 415 under the Securities ActCommission. At the time There are no contracts or documents of the initial filing Company that are required to be filed as exhibits to the Registration Statement or any documents incorporated by reference therein by the Act, the Exchange Act or the rules and regulations thereunder which have not been so filed.
(b) No order preventing or suspending the use of the Prospectus or the Registration Statement has been issued by the Commission and the Registration Statement, at the time date of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective amendmentthis Agreement, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Securities Act) made any offer relating to the Shares in reliance on the exemption of Rule 163 under the Securities Act and at the date hereof, the Company was and is a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act, including not having been and not being an “ineligible issuer,” as defined in Rule 405 under the Securities Act. The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 under the Securities Act, 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.” The Company has not received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting to the use of the automatic shelf registration statement form. The Company has paid or will pay the required Commission filing fees relating to the Shares within the time required by Rule 456(b)(1)(i) under the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Securities Act (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) under the Securities Act either in a post-effective amendment to the Registration Statement or on the cover page of the Prospectus).
(2) The Original Registration Statement became effective upon filing under Rule 462(e) under the Securities Act on February 12, 2020. 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 by the Commission, and any request on the part of the Commission for additional information has been complied with.
(3) Any offer that is a written communication relating to the Shares made prior to the initial filing of the Registration Statement by the Company or any person acting on its behalf (within the meaning, for this paragraph only, of Rule 163(c) under the Securities Act) has been filed with the Commission in accordance with the exemption provided by Rule 163 under the Securities Act and otherwise complied with the requirements of Rule 163 under the Securities Act, including without limitation the legending requirement.
(4) The Company has delivered or made available on XXXXX to each of the Sales Agent and the Forward Seller one complete copy of the Registration Statement and a copy of each consent and certificate of experts filed as a part thereof, and conformed copies of the Registration Statement (without exhibits) and the Prospectus, as amended or supplemented, in such quantities and at such places as the Sales Agent or the Forward Seller, as applicable, has reasonably requested. The Prospectus delivered to the Sales Agent and the Forward Seller for use in connection with the offering of Shares will, at the time of such delivery, be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(5) At the respective times the Registration Statement and each amendment thereto became effective, at each deemed effective date with respect to the Sales Agent, the Forward Seller or the Forward Purchaser pursuant to Rule 430B(f)(2) under the Securities Act, as the case may be, the Registration Statement complied and will comply in all material respects with the requirements of the Securities Act, the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act") and the respective rules and regulations thereunder and did not and will not contain 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. The preceding sentence does not apply to statements in or omissions from the Registration Statement or any amendment thereto in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, expressly for inclusion in any of the aforementioned documents.
(6) Neither the Prospectus nor any amendments or supplements thereto, at the time the Prospectus or any such amendment or supplement was issued, as of the date hereof, at each Representation Date, at each Applicable Time, and at each Settlement Date, as the case may be, included or will include an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from the Prospectus, as amended or supplemented, in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, expressly for inclusion in any of the aforementioned documents.
(7) Each document incorporated by reference in the Registration Statement or the Prospectus heretofore filed, when it was filed (or, if any amendment with respect to any such document was filed, when such amendment was filed), conformed in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder, and any further documents so filed and incorporated after the date of this Agreement will, when they are filed, conform in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder; no such document when it was filed (or, if an amendment with respect to any such document was filed, when such amendment was filed), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and, at the time the Prospectus Supplement is filed with the Commission and no such documentat the Closing Date (as hereinafter defined), when it is filed, the Prospectus will comply in all material respects with the Act and the rules and regulations thereunder and will not contain an any untrue statement of a material fact or will omit to state a any material fact required to be stated therein or necessary in order to make the statements therein not misleading; PROVIDED that the Company makes no representations or warranties as to (A) that part of the Registration Statement which shall constitute the Statement of Eligibility (Form T-1) under the Trust Indenture Act of the Trustee or (B) the information contained in or omitted from the Registration Statement or the Prospectus in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of any Underwriter through the Representatives specifically for use in connection with the preparation of the Registration Statement or Prospectus.
(8) Each Issuer Free Writing Prospectus (as defined herein)c) The documents incorporated by reference in the Prospectus, on its issue datewhen they were filed with the Commission, as conformed in all material respects to the requirements of each Applicable Timethe Exchange Act and the rules and regulations of the Commission thereunder, and as any documents so filed and incorporated by reference subsequent to the date of each Settlement Datethis Agreement will, when they are filed with the Commission, conform in all material respects to the requirements of the Exchange Act, and the rules and regulations of the Commission thereunder; and none of such documents include or until any earlier date that the issuer notified or notifies the Sales Agent or the Forward Seller as described in Section 8(d) hereof, did not, does not and will not include any information that conflicted, conflicts untrue statement of a material fact or omit or will conflict with omit to state any material fact required to be stated therein or necessary to make the information contained statements therein in the light of the circumstances under which they were made not misleading.
(d) PricewaterhouseCoopers LLP, which audited certain of the financial statements incorporated by reference in the Registration Statement, are independent public accountants as required by the Act and the rules and regulations of the Commission thereunder.
(e) The financial statements of the Company filed as a part of or incorporated by reference in the Registration Statement or Prospectus fairly present the financial position of the Company as of the dates indicated and the results of its operations and changes in financial position for the periods specified, and have been prepared in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods involved, except as disclosed in the Prospectus Supplement.
(f) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Wisconsin with due corporate authority to carry on the business in which it is engaged and to own and operate the properties used by it in such business, as described in the Prospectus, including any incorporated document deemed ; the Company is qualified to do business as a foreign corporation and is in good standing under the laws of the State of Michigan; and the Company is not required by the nature of its business to be licensed or qualified as a part thereof that foreign corporation in any other state or jurisdiction; and, except as set forth in the Prospectus Supplement, the Company has all material licenses and approvals required at the date hereof to conduct its business.
(g) The authorized, issued and outstanding capital stock of the Company is as set forth in the Prospectus (except for subsequent issuance, if any, pursuant to reservations or agreements referred to therein); the shares of issued and outstanding capital stock of the Company have been duly and validly issued, are fully paid and non-assessable and are owned by Xcel Energy Inc., a Minnesota corporation.
(h) The Company has not sustained since the date of the latest audited financial statements included or incorporated by reference in the Prospectus any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus Supplement; and, since the respective dates as of which information is given in the Registration Statement and the Prospectus Supplement, the Company has not incurred any liabilities or obligations, direct or contingent, or entered into any transactions, not in the ordinary course of business, which are material to the Company, and there has not been superseded any material change in the capital stock or modified. The foregoing sentence does not apply to statements long-term debt of the Company or any material adverse change, or any development involving a prospective material adverse change, in or omissions from affecting the general affairs, management, financial position, stockholders' equity or results of operations of the Company, otherwise than as set forth or contemplated in the Prospectus Supplement.
(i) Neither the execution and delivery of this Agreement and the Indenture, the issuance and delivery of the Debt Securities, the consummation of the transactions herein contemplated, the fulfillment of the terms hereof, nor compliance with the terms and provisions of this Agreement, the Debt Securities and the Indenture will conflict with, or result in the breach of, any Issuer Free Writing Prospectus based upon and of the terms, provisions or conditions of the Restated Articles of Incorporation, as amended, or By-laws of the Company, or of any contract, agreement or instrument to which the Company is a party or in conformity with written information furnished which the Company has a beneficial interest or by which the Company is bound or of any order, rule or regulation applicable to the Company by of any court or of any federal or state regulatory body or administrative agency or other governmental body having jurisdiction over the Sales Agent, the Forward Seller Company or the Forward Purchaser, as applicable, specifically for use thereinover its properties.
(9j) This The Debt Securities have been duly authorized for issuance and sale pursuant to this Agreement and, when executed and authenticated in accordance with the Indenture and delivered and paid for as provided herein, will be duly issued and will constitute valid and binding obligations of the Company enforceable in accordance with their terms, except as limited by bankruptcy, insolvency and other laws affecting enforcement of creditors' rights, and will be entitled to the benefits of the Indenture which will be substantially in the form heretofore delivered to you.
(k) The Indenture has been duly authorizedand validly authorized by the Company and, when duly executed and delivered by the Company Company, assuming due authorization, execution and this Agreement constitutes delivery thereof by the Trustee, will constitute a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability enforcement thereof may be limited by bankruptcy, insolvencyinsolvency or other laws affecting enforcement of creditors' rights.
(l) The Public Service Commission of Wisconsin has issued its order authorizing the issuance and sale of the Debt Securities on terms consistent with this Agreement. Each other consent, fraudulent conveyanceapproval, reorganizationauthorization, moratorium order, registration or qualification of or with any regulatory public body, state or federal, that is, or will be at the Closing Date, necessary in connection with the issuance and sale of the Debt Securities pursuant to this Agreement has been or will be obtained, other similar laws relating than approvals that may be required under state securities laws.
(m) The Company has good and valid title to or affecting creditors’ all real and fixed property and leasehold rights generally which are owned by it, subject only to taxes and by general principles assessments not yet delinquent; the lien of equity the Supplemental and Restated Trust Indenture dated March 1, 1991, from the Company to Firstar Trust Company (the “Exceptions”"First Mortgage Indenture"). The Master Forward Confirmation will have been; as to parts of the Company's property, as certain easements, conditions, restrictions, leases, and similar encumbrances which do not affect the Company's use of such property in the usual course of its datebusiness, duly authorizedand certain minor defects in titles which are not material, executed and delivered defects in titles to certain properties which are not essential to the Company's business; and mechanics' lien claims being contested or not of record or for the satisfaction or discharge of which adequate provision has been made by the Company pursuant to the First Mortgage Indenture; and when executed any real property and delivered buildings held under lease by the Forward PurchaserCompany is held by it under valid, subsisting and enforceable leases with such Master Forward Confirmation will constitute exceptions as are not material and do not interfere with the use made and proposed to be made of such property and buildings by the Company.
(n) Other than as set forth or contemplated in the Prospectus, there are no legal or governmental proceedings pending to which the Company is a valid and legally binding obligation party or of which any property of the Company enforceable against is the Company in accordance with its termssubject which, except as enforceability may be limited by the Exceptions.
(10) The Company and its “Subsidiaries” (as defined in Section 6(a)(13) hereof) have been duly incorporated or organized and are validly existing as corporations or organizations in good standing under the laws of the states or other jurisdictions in which they are incorporated or organized, with full power and authority (corporate and other) to own, lease and operate their properties and conduct their businesses as described in the Prospectus and, with respect if determined adversely to the Company, to execute and deliverwould individually or in the aggregate have a material adverse effect on the financial position, and perform stockholders' equity or results of operations of the Company’s obligations under; and, this Agreement; to the best of the Company's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others.
(o) The Company has all necessary power under statutory provisions or permits to use its operating electric and gas properties.
(p) The Company has no "significant subsidiary", within the meaning of Rule 1.02(w) of Regulation S-X under the Act.
(q) The Company is not an "investment company" or an entity "controlled" by an "investment company", as such terms are defined in the Investment Company Act of 1940, as amended.
(r) Except as set forth in the Prospectus Supplement, the Company (A) is in compliance with any and its Subsidiaries are duly qualified all applicable federal, state and local laws and regulations relating to do business as foreign corporations the protection of human health and safety, the environment or organizations in good standing in each state hazardous or toxic substances or wastes, pollutants or contaminants ("Environmental Laws"), (B) has received all permits, licenses or other jurisdiction approvals required of it under applicable Environmental Laws to conduct its business and (C) is in which their ownership compliance with all terms and conditions of any such permits, licenses or leasing of property or conduct of business legally requires such qualificationapprovals, except where the such noncompliance with Environmental Laws, failure to be so qualifiedreceive required permits, individually licenses or other approvals or failure to comply with the terms and conditions of such permits, licenses or approvals would not, singly or in the aggregate, would not have a Material Adverse Effect. The term “Material Adverse Effect” as used herein means any material adverse effect on the condition (financial or other), net worth, business, affairs, management, prospects, results of operations or cash flow of the Company and its Subsidiaries, taken as a wholeCompany.
Appears in 1 contract
Samples: Underwriting Agreement (Northern States Power Co /Wi/)
Representations and Warranties by the Company. The Company represents and warrants to the Sales Agent, the Forward Seller and the Forward Purchaser Xxxxx Fargo Securities as of (i) the date hereof and as of hereof, (ii) each date on which a Placement Notice becomes effective pursuant to Section 2 hereof, (iii) each Representation Date (as defined belowherein) on which a certificate is certificates are required to be delivered pursuant to Section 8(o7(o) of this Agreement, as of that date on which any Placement Notice is given hereunder, as of (iv) the time of each sale of any Issuance Shares Securities or Forward Hedge Shares any securities pursuant to this Agreement (the “Applicable Time”) and as of (v) each Settlement Date (as defined below), and agrees with the Sales Agent, the Forward Seller and the Forward PurchaserXxxxx Fargo Securities, as follows:follows (provided, that the representations and warranties of the Company set forth in Section 5(36)(ii) are only made as of the date hereof):
(1) The Company satisfies all of the requirements of Securities have been duly registered under the Securities Act for use of Form S-3 for pursuant to the offering of the Shares contemplated hereby and the offering and sale of Shares contemplated hereby complies with the requirements of Rule 415 Registration Statement. The Registration Statement has become effective under the Securities Act. At , or, with respect to any registration statement to be filed to register the time of the initial filing of the Registration Statement, at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) offer and sale of the Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(dRule 462(b) of the Exchange Act or form of prospectus), at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Securities Act) made any offer relating to the Shares in reliance on the exemption of Rule 163 under the Securities Act and at the date hereof, the Company was and is a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act, including not having been and not being an the documents incorporated by reference therein (a “ineligible issuer,” as defined in Rule 405 under the Securities Act. The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 under the Securities Act, and the Shares, since their registration on the 462(b) Registration Statement”), have been and remain eligible for registration by the Company on a Rule 405 “automatic shelf registration statement.” The Company has not received from will be filed with the Commission any notice pursuant to Rule 401(g)(2) and become effective under the Securities Act objecting prior to the time of any sale of Securities pursuant to such Rule 462(b) Registration Statement, and no stop order preventing or suspending the use of any base prospectus, the automatic shelf registration statement form. The Company has paid Prospectus Supplement, the Prospectus or will pay the required Commission filing fees relating to the Shares within the time required by Rule 456(b)(1)(i) under the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Securities Act any Permitted Free Writing Prospectus (includingas defined below), if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) under the Securities Act either in a post-effective amendment to the Registration Statement or on the cover page of the Prospectus).
(2) The Original Registration Statement became effective upon filing under Rule 462(e) under the Securities Act on February 12, 2020. No stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act or any Rule 462(b) Registration Statement and no proceedings for that such purpose have been instituted or are pending or, to the knowledge of the Company, are contemplated by the Commission, and any request on the part of the Commission for additional information has been complied with.
(3) Any offer that is a written communication relating to the Shares made prior to the initial filing of the Registration Statement by the Company or any person acting on its behalf (within the meaning, for this paragraph only, of Rule 163(c) under the Securities Act) has been filed with the Commission in accordance with the exemption provided by Rule 163 under the Securities Act and otherwise complied with the requirements of Rule 163 under the Securities Act, including without limitation the legending requirement.
(4) The Company has delivered or made available on XXXXX to each of the Sales Agent and the Forward Seller one complete copy of the Registration Statement and a copy of each consent and certificate of experts filed as a part thereof, and conformed copies of the Registration Statement (without exhibits) and the Prospectus, as amended or supplemented, in such quantities and at such places as the Sales Agent or the Forward Seller, as applicable, has reasonably requested. The Prospectus delivered to the Sales Agent and the Forward Seller for use in connection with the offering of Shares will, at the time of such delivery, be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(5) At the respective times each of the Registration Statement, any Rule 462(b) Registration Statement and each amendment any post-effective amendments thereto became effective, at each deemed or becomes effective and as of the date with respect to the Sales Agent, the Forward Seller or the Forward Purchaser pursuant to Rule 430B(f)(2) under the Securities Act, as the case may behereof, the Registration Statement, any Rule 462(b) Registration Statement and any amendments and supplements thereto complied and will comply in all material respects with the requirements of the Securities Act. The conditions for the use of Form S-3, as set forth in the General Instructions thereto, have been complied with and the Registration Statement meets, and the offering and sale of the Securities as contemplated hereby complies with, the requirements of Rule 415 under the Securities Act (including without limitation, Rule 415(a)(5)). The initial effective date of the Registration Statement was not earlier than the date three years before the date of this Agreement. The Registration Statement, as of the date hereof and each effective date with respect thereto, did not 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 in order to make the statements therein not misleading. The preceding sentence does not apply to statements in or omissions from the Registration Statement or any amendment thereto in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, expressly for inclusion in any of the aforementioned documents.
(6) Neither the Prospectus nor any amendments or supplements thereto, at the time the Prospectus or any such amendment or supplement was issued, as of the date hereof, at each Representation Date, at each Applicable Timetheir respective dates, and at each Applicable Time and Settlement Date, as the case may be, included or will include an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The representations and warranties set forth in the immediately preceding sentence does paragraph shall not apply to statements in or omissions from the Registration Statement or the Prospectus, as amended or supplemented, made in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, Xxxxx Fargo Securities expressly for inclusion in any of the aforementioned documents.
(7) Each document incorporated by reference in the Registration Statement or the Prospectus heretofore filed, when it was filed (or, if any amendment with respect to any such document was filed, when such amendment was filed), conformed in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder, and any further documents so filed and incorporated after the date of this Agreement will, when they are filed, conform in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder; no such document when it was filed (or, if an amendment with respect to any such document was filed, when such amendment was filed), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and no such document, when it is filed, will contain an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(8) Each Issuer Free Writing Prospectus (as defined herein), on its issue date, as of each Applicable Time, and as of each Settlement Date, or until any earlier date that the issuer notified or notifies the Sales Agent or the Forward Seller as described in Section 8(d) hereof, 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 incorporated document deemed to be a part thereof that has not been superseded or modified. The foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with written information furnished to the Company by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, specifically for use therein.
(9) This Agreement has been duly authorized, executed it being understood and delivered agreed that the only such information furnished by the Company and this Agreement constitutes a valid and legally binding obligation Xxxxx Fargo Securities consists of the Company enforceable against the Company in accordance with its terms, except information described as enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and by general principles of equity (the “Exceptions”). The Master Forward Confirmation will have been, as of its date, duly authorized, executed and delivered by the Company and when executed and delivered by the Forward Purchaser, such Master Forward Confirmation will constitute a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by the Exceptions.
(10) The Company and its “Subsidiaries” (as defined in Section 6(a)(1310(b) hereof) have been duly incorporated or organized and are validly existing as corporations or organizations in good standing under the laws of the states or other jurisdictions in which they are incorporated or organized, with full power and authority (corporate and other) to own, lease and operate their properties and conduct their businesses as described in the Prospectus and, with respect to the Company, to execute and deliver, and perform the Company’s obligations under, this Agreement; the Company and its Subsidiaries are duly qualified to do business as foreign corporations or organizations in good standing in each state or other jurisdiction in which their ownership or leasing of property or conduct of business legally requires such qualification, except where the failure to be so qualified, individually or in the aggregate, would not have a Material Adverse Effect. The term “Material Adverse Effect” as used herein means any material adverse effect on the condition (financial or other), net worth, business, affairs, management, prospects, results of operations or cash flow of the Company and its Subsidiaries, taken as a whole.
Appears in 1 contract
Samples: Equity Distribution Agreement (Blackstone Mortgage Trust, Inc.)
Representations and Warranties by the Company. The Company represents and warrants to each Underwriter named in the Sales Agentapplicable Underwriting Agreement, the Forward Seller and the Forward Purchaser as of the date hereof and as of each Representation Date Pricing Effective Time (as defined below) on which a certificate is required to be delivered pursuant to Section 8(o) of this Agreement, as of that date on which any Placement Notice is given hereunder, and as of the time of each sale of any Issuance Shares or Forward Hedge Shares pursuant to this Agreement (the “Applicable Time”) and as of each Settlement Date Closing Time (as defined below), and agrees ) with respect to the Sales Agent, the Forward Seller and the Forward Purchaser, Designated Securities as follows:
(1) The each document filed by the Company satisfies all of pursuant to the requirements of the Securities 1934 Act for use of Form S-3 for the offering of the Shares contemplated hereby and the offering and sale of Shares contemplated hereby complies with the requirements of Rule 415 under the Securities Act. At the time of the initial filing of which is incorporated by reference in the Registration Statement, at the time of Prospectus or the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Securities Act Pricing Disclosure Material (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), at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Securities Act) made any offer relating to the Shares in reliance on the exemption of Rule 163 under the Securities Act and at the date hereof, the Company was and is a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act, including not having been and not being an “ineligible issuer,” as defined in Rule 405 under the Securities Act. The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 under the Securities Act, 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.” The Company has not received from the Commission any notice pursuant to Rule 401(g)(2below) under the Securities Act objecting to the use of the automatic shelf registration statement form. The Company has paid or will pay the required Commission filing fees relating to the Shares within the time required by Rule 456(b)(1)(i) under the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Securities Act (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) under the Securities Act either in a post-effective amendment to the Registration Statement or on the cover page of the Prospectus).
(2) The Original Registration Statement became effective upon filing under Rule 462(e) under the Securities Act on February 12, 2020. 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 by the Commission, and any request on the part of the Commission for additional information has been complied with.
(3) Any offer that is a written communication relating to the Shares made prior to the initial filing of the Registration Statement by the Company or any person acting on its behalf (within the meaning, for this paragraph only, of Rule 163(c) under the Securities Act) has been when so filed with the Commission in accordance with the exemption provided by Rule 163 under the Securities Act and otherwise complied with the requirements of Rule 163 under the Securities Act, including without limitation the legending requirement.
(4) The Company has delivered or made available on XXXXX to each of the Sales Agent and the Forward Seller one complete copy of the Registration Statement and a copy of each consent and certificate of experts filed as a part thereof, and conformed copies of the Registration Statement (without exhibits) and the Prospectus, as amended or supplemented, in such quantities and at such places as the Sales Agent or the Forward Seller, as applicable, has reasonably requested. The Prospectus delivered to the Sales Agent and the Forward Seller for use in connection with the offering of Shares will, at the time of such delivery, be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(5) At the respective times the Registration Statement and each amendment thereto became effective, at each deemed effective date with respect to the Sales Agent, the Forward Seller or the Forward Purchaser pursuant to Rule 430B(f)(2) under the Securities Act, as the case may be, the Registration Statement complied and will comply in all material respects with the requirements 1934 Act and the rules and regulations thereunder, and each document, if any, hereafter filed by the Company and so incorporated by reference in the Prospectus will comply when so filed with the 1934 Act and the rules and regulations thereunder;
(2) at the Effective Time the Registration Statement (and any amendments and supplements thereto, other than supplements relating only to securities other than the Designated Securities) will comply and when filed or at the Closing Time, the Prospectus (and any amendments and supplements thereto, other than supplements relating only to securities other than Designated Securities) will comply, in all material respects with the 1933 Act and the 1933 Act Regulations;
(3) each Preliminary Prospectus, if any, relating to the Designated Securities filed pursuant to Rule 424 under the 1933 Act complied when so filed in all material respects with the 1933 Act and the 1933 Act Regulations;
(4) (i) at the Effective Time of the Securities Act, and did not and Registration Statement it 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 preceding sentence does not apply to statements in or omissions from ; (ii) at the Registration Statement or any amendment thereto in reliance upon and in conformity with written information relating to the Sales AgentPricing Effective Time, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales AgentPricing Disclosure Material (as defined below), the Forward Seller or the Forward Purchaser, as applicable, expressly for inclusion in any of the aforementioned documents.
(6) Neither the Prospectus nor any amendments or supplements thereto, at the time the Prospectus or any such amendment or supplement was issued, as of the date hereof, at each Representation Date, at each Applicable Time, and at each Settlement Date, as the case may be, included or will include did not contain an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from ; and (iii) the ProspectusProspectus as of the date of the Pricing Supplement will not, and the Prospectus (as amended or supplemented, in reliance upon and in conformity with written information other than as to supplements relating only to securities other than the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, Designated Securities) as applicable, expressly for inclusion in any of the aforementioned documents.
(7) Each document incorporated by reference in the Registration Statement or the Prospectus heretofore filedClosing Time will not, when it was filed (or, if any amendment with respect to any such document was filed, when such amendment was filed), conformed in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder, and any further documents so filed and incorporated after the date of this Agreement will, when they are filed, conform in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder; no such document when it was filed (or, if an amendment with respect to any such document was filed, when such amendment was filed), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and no such document, when it is filed, will contain an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary in order to make the statements therein therein, in the light of the circumstances under which they were made, not misleading.
(8) Each Issuer Free Writing Prospectus (as defined herein), on its issue date, as of each Applicable Time, ; except that these representations and as of each Settlement Date, or until any earlier date that the issuer notified or notifies the Sales Agent or the Forward Seller as described in Section 8(d) hereof, 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 incorporated document deemed to be a part thereof that has not been superseded or modified. The foregoing sentence does warranties do not apply to statements in or omissions from in the Registration Statement, any Issuer Free Writing Prospectus Preliminary Prospectus, the Prospectus, any amendments or supplements to the foregoing, or in the Pricing Disclosure Material, based upon and in conformity with written information furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, specifically any Underwriter expressly for use therein.;
(95) This Agreement has been duly authorized, executed and delivered by the Company and this Agreement Registration Statement constitutes a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and by general principles of equity (the an “Exceptions”). The Master Forward Confirmation will have been, as of its date, duly authorized, executed and delivered by the Company and when executed and delivered by the Forward Purchaser, such Master Forward Confirmation will constitute a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by the Exceptions.
(10) The Company and its “Subsidiariesautomatic shelf registration statement” (as defined in Section 6(a)(13) hereof) have been duly incorporated or organized and are validly existing as corporations or organizations in good standing Rule 405 under the laws 0000 Xxx) filed within three years of the states or other jurisdictions in which they are incorporated or organized, with full power and authority (corporate and other) to own, lease and operate their properties and conduct their businesses as described in date hereof; no notice of objection of the Prospectus and, Commission with respect to the Company, use of the Registration Statement pursuant to execute and deliver, and perform Rule 401(g)(2) under the 1933 Act has been received by the Company’s obligations under, this Agreement; and the Company is a “well-known seasoned issuer’ and its Subsidiaries are duly qualified to do business as foreign corporations or organizations in good standing is not an ineligible issuer in each state or other jurisdiction case as defined in which their ownership or leasing of property or conduct of business legally requires such qualification, except where Rule 405 at the failure “determination dates” relevant to be so qualified, individually or in the aggregate, would not have a Material Adverse Effect. The term “Material Adverse Effect” as used herein means any material adverse effect on the condition (financial or other), net worth, business, affairs, management, prospects, results of operations or cash flow offering and sale of the Designated Securities under the Registration Statement (as described in such definition); and
(6) the Company has not used any free writing prospectus other than a Permitted Free Writing Prospectus or used a Permitted Free Writing Prospectus except in compliance with Rule 433 under the 1933 Act and its Subsidiaries, taken as a wholeotherwise in compliance with the 1933 Act.
Appears in 1 contract
Representations and Warranties by the Company. The Company represents and warrants to the Sales Agent, the Forward Seller and the Forward Purchaser as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 8(o) of this Agreement, as of that date on which any Placement Notice is given hereunder, as of the time of each sale of any Issuance Shares or Forward Hedge Shares pursuant to this Agreement (the “Applicable Time”) and as of each Settlement Date (as defined below)to, and agrees with the Sales Agentwith, the Forward Seller and the Forward Purchaser, as followseach Underwriter that:
(1a) The Company satisfies all of meets the requirements of the Securities Act for use of Form S-3 under the Securities Act of 1933, as amended (the "Act") and has filed with the Securities and Exchange Commission (the "Commission") a registration statement on such Form, including a prospectus, for the registration under the Act of the Debt Securities, which registration statement has become effective. Such registration statement and prospectus may have been amended or supplemented from time to time prior to the date of this Agreement (which date is set forth in Schedule I hereto). Any such amendment or supplement was filed with the Commission and any such amendment has become effective. Each prospectus used before the registration statement became effective, and any prospectus that omitted the offering terms that was used after such effectiveness and prior to the execution and delivery of this Agreement, is herein called a "preliminary prospectus". The Company will file with the Commission a prospectus supplement (the "Prospectus Supplement") relating to the Debt Securities pursuant to Rule 424 and/or Rule 434 under the Act. Copies of such registration statement and prospectus, any such amendment or supplement and all documents incorporated by reference therein which were filed with the Commission on or prior to the date of this Agreement have been delivered to you and copies of the Prospectus Supplement will be delivered to you promptly after it is filed with the Commission. Such registration statement, as amended prior to the date of this Agreement, and such prospectus, as amended and supplemented prior to the date of this Agreement and as supplemented by the Prospectus Supplement, are hereinafter called the "Registration Statement" and the "Prospectus", respectively. Any reference herein to the Registration Statement or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 which were filed under the Securities Exchange Act of 1934, as amended (the "Exchange Act") on or before the date of this Agreement and, if the Company files any document pursuant to the Exchange Act after the date of this Agreement and prior to the termination of the offering of the Shares contemplated hereby Debt Securities by the Underwriters, which documents are deemed to be incorporated by reference into the Prospectus, the term "Prospectus" shall refer also to said prospectus as supplemented by the documents so filed from and after the offering and sale of Shares contemplated hereby complies time said documents are filed with the requirements of Rule 415 under the Securities ActCommission. At the time There are no contracts or documents of the initial filing Company or any of its subsidiaries that are required to be filed as exhibits to the Registration Statement or any documents incorporated by reference therein by the Act, the Exchange Act or the rules and regulations thereunder which have not been so filed.
(b) No order preventing or suspending the use of the Prospectus or the Registration Statement has been issued by the Commission and the Registration Statement, at the time date of this Agreement, complied in all material respects with the requirements of the most recent amendment thereto for Act, the purposes Trust Indenture Act of complying with Section 10(a)(31939, as amended (the "Trust Indenture Act") and the respective rules and regulations of the Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant Commission thereunder and did not contain any untrue statement of a material fact or omit any material fact required to Section 13 be stated therein or 15(d) of necessary in order to make the Exchange Act or form of prospectus)statements therein not misleading; and, at the time the Prospectus Supplement is filed with the Commission and at the Closing Date (as hereinafter defined), the Prospectus will comply in all material respects with the Act and the rules and regulations of the Commission thereunder and will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided that the Company makes no representations or any person acting on its behalf warranties as to (within A) that part of the meaning, for this clause only, Registration Statement which shall constitute the Statement of Rule 163(cEligibility (Form T-1) under the Securities Act) made any offer relating to the Shares in reliance on the exemption of Rule 163 under the Securities Trust Indenture Act and at the date hereof, the Company was and is a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act, including not having been and not being an “ineligible issuer,” as defined in Rule 405 under the Securities Act. The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 under the Securities Act, 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.” The Company has not received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting to the use of the automatic shelf registration statement form. The Company has paid Trustee or will pay (B) the required Commission filing fees relating to the Shares within the time required by Rule 456(b)(1)(i) under the Securities Act without regard to the proviso therein and otherwise information contained in accordance with Rules 456(b) and 457(r) under the Securities Act (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) under the Securities Act either in a post-effective amendment to or omitted from the Registration Statement or the Prospectus in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of any Underwriter through the cover page of Representatives specifically for use in the Prospectus).
(2) The Original Registration Statement became effective upon filing under Rule 462(e) under or Prospectus. Each preliminary prospectus and the Securities Act on February 12, 2020. No stop order suspending the effectiveness prospectus filed as part of the Registration Statement has been issued as originally filed or as part of any amendment thereto, or filed pursuant to Rule 424 of the Act, complied when so filed in all material respects with the rules 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 by the CommissionAct, and any request on the part of the Commission for additional information has been complied with.
(3) Any offer that is a written communication relating to the Shares made prior to the initial filing of the Registration Statement by the Company or any person acting on its behalf (within the meaning, for this paragraph only, of Rule 163(c) under the Securities Act) has been filed with the Commission in accordance with the exemption provided by Rule 163 under the Securities Act and otherwise complied with the requirements of Rule 163 under the Securities Act, including without limitation the legending requirement.
(4) The Company has delivered or made available on XXXXX to each of the Sales Agent preliminary prospectus and the Forward Seller one complete copy of the Registration Statement and a copy of each consent and certificate of experts filed as a part thereof, and conformed copies of the Registration Statement (without exhibits) and the Prospectus, as amended or supplemented, in such quantities and at such places as the Sales Agent or the Forward Seller, as applicable, has reasonably requested. The Prospectus delivered to the Sales Agent and the Forward Seller Underwriters for use in connection with the this offering of Shares will, at the time of such delivery, be was identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(5c) At This Agreement has been duly authorized, executed and delivered by the respective times the Registration Statement and each amendment thereto became effectiveCompany.
(d) Each document, at each deemed effective date with respect if any, filed or to be filed pursuant to the Sales Agent, Exchange Act and incorporated by reference in the Forward Seller Prospectus complied or the Forward Purchaser pursuant to Rule 430B(f)(2) under the Securities Act, as the case may be, the Registration Statement complied and will comply when so filed in all material respects with the requirements Exchange Act. The Prospectus, as of the Securities Actdate hereof, and did not and will does not contain 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. The preceding sentence does not apply to statements in or omissions from the Registration Statement or any amendment thereto in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, expressly for inclusion in any of the aforementioned documents.
(6) Neither the Prospectus nor any amendments or supplements thereto, at the time the Prospectus or any such amendment or supplement was issued, as of the date hereof, at each Representation Date, at each Applicable Time, and at each Settlement Date, as the case may be, included or will include an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply ; provided, however, that the Company makes no representation or warranty as to statements the information contained in or omissions omitted from the Prospectus, as amended or supplemented, Prospectus in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished in writing to the Company in writing by or on behalf of the Sales Agent, Underwriters through the Forward Seller or the Forward Purchaser, as applicable, expressly Representatives specifically for inclusion in any of the aforementioned documentstherein.
(7e) Each document Deloitte & Touche LLP, which audited the financial statements incorporated by reference in the Registration Statement, (A) are independent public accountants as required by the Act and the rules and regulations of the Commission thereunder and (B) do not provide to the Company or its subsidiaries any non-audit services which are prohibited by Section 10A(g) or (h) of the Exchange Act.
(f) The consolidated historical financial statements and schedules of the Company and its consolidated subsidiaries incorporated by reference in the Registration Statement and Prospectus present fairly in all material respects the financial condition, results of operations, cash flows and changes in financial position of the Company as of the dates and for the periods indicated, comply as to form with the applicable accounting requirements of the Act and the Exchange Act and have been prepared in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods involved (except as otherwise noted therein). Except as disclosed in or incorporated by reference in the Registration Statement or Prospectus, neither the Prospectus heretofore filed, when it was filed (or, if Company nor any amendment with respect of its subsidiaries has any contingent obligations which are material to any such document was filed, when such amendment was filed), conformed in all material respects with the requirements of the Exchange Act Company and the rules and regulations thereunder, and any further documents so filed and incorporated after the date of this Agreement will, when they are filed, conform in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder; no such document when it was filed (or, if an amendment with respect to any such document was filed, when such amendment was filed), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and no such document, when it is filed, will contain an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleadingits consolidated subsidiaries considered as one enterprise.
(8) g) Each Issuer Free Writing Prospectus (as defined herein), on its issue date, as of each Applicable Time, and as of each Settlement Date, or until any earlier date that the issuer notified or notifies the Sales Agent or the Forward Seller as described in Section 8(d) hereof, 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 incorporated document deemed to be a part thereof that has not been superseded or modified. The foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with written information furnished to the Company by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, specifically for use therein.
(9) This Agreement and its subsidiaries has been duly authorized, executed incorporated and delivered by the Company and this Agreement constitutes a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and by general principles of equity (the “Exceptions”). The Master Forward Confirmation will have been, as of its date, duly authorized, executed and delivered by the Company and when executed and delivered by the Forward Purchaser, such Master Forward Confirmation will constitute a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by the Exceptions.
(10) The Company and its “Subsidiaries” (as defined in Section 6(a)(13) hereof) have been duly incorporated or organized and are is validly existing as corporations or organizations a corporation in good standing under the laws of the states or other jurisdictions jurisdiction in which they are incorporated it is chartered or organized, organized with full corporate power and authority (corporate to own or lease, as the case may be, and other) to own, lease and operate their its properties and conduct their businesses its business as described in the Prospectus and, with respect to the Company, to execute and deliverProspectus, and perform the Company’s obligations under, this Agreement; the Company and its Subsidiaries are is duly qualified to do business as a foreign corporations or organizations corporation and is in good standing in under the laws of each state or other jurisdiction in which their ownership or leasing of property or conduct of business legally requires such qualification, except where the failure to be so qualifiedqualified would not have a material adverse change in the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business.
(h) The Company has no subsidiaries which would be deemed significant subsidiaries under Regulation S-X.
(i) Except as may otherwise be reflected in or contemplated by the Prospectus, since the respective dates as of which information is given therein (i) there has been no material adverse change in the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business and (ii) neither the Company nor any of its subsidiaries has entered into any transactions which are material to the Company and its subsidiaries considered as one enterprise, other than in the ordinary course of business; and, except as so reflected or contemplated, neither the Company nor any of its subsidiaries has any contingent obligations which are material to the Company and its subsidiaries considered as one enterprise.
(j) Neither the execution and delivery of this Agreement and the Supplemental Indenture, the issue and sale of the Debt Securities, nor the consummation of any other of the transactions herein or therein contemplated, nor the fulfillment of the terms hereof or thereof will conflict with, result in a breach or violation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its subsidiaries pursuant to, (i) the charter or by-laws of the Company or any of its subsidiaries; (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which the Company or any of its subsidiaries is a party or bound or to which its or their property is subject; or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or any of its subsidiaries or any of its or their properties except, in the case of clause (ii), any such conflict, breach or violation which would not, individually or in the aggregate, would not have a Material Adverse Effect. material adverse change in the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business.
(k) The term “Material Adverse Effect” issuance and sale by the Company of the Debt Securities pursuant to this Agreement have been duly authorized by all necessary corporate action; and, when issued, authenticated and delivered to the Underwriters pursuant to this Agreement against payment of the consideration theretofore specified herein, the Debt Securities will be valid and binding obligations of the Company, enforceable in accordance with their terms, except as enforcement thereof may be limited by laws or principles of equity affecting creditors' rights, including without limitation bankruptcy and insolvency laws and state laws which affect the enforcement of certain remedial provisions of the Indenture, and will be entitled to the benefits of the Indenture.
(l) The Indenture has been duly and validly authorized by the Company and, when duly executed and delivered by the Company, assuming due authorization, execution and delivery thereof by the Trustee, will constitute a legal, valid and binding obligation of the Company, enforceable in accordance with its terms, except as enforcement thereof may be limited by laws or principles of equity affecting creditors' rights, including without limitation bankruptcy and insolvency laws and state laws which affect the enforcement of certain remedial provisions of the Indenture.
(m) The issuance and sale of the Debt Securities have been duly authorized and approved by an order of The Public Utilities Commission of the State of Colorado and such order is final and in full force and effect on the date hereof, the time for appeal therefrom or review thereof or intervention with respect thereto having expired; no further approval, authorization, consent or other order of any public board or body is legally required in connection with the transactions contemplated by this Agreement and the Indenture, except as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Debt Securities by the Underwriters in the manner contemplated herein and in the Prospectus.
(n) The Company has good title to the real properties specifically or generally described or referred to in the Company's first mortgage indenture and in the Company's collateral trust indenture as subject to the respective liens thereof (except such real property as may sold, exchanged or otherwise disposed of), subject only to (a) in the case of all such properties, the lien of the Company's first mortgage indenture and "permitted encumbrances" (as defined in the Company's first mortgage indenture) and (b) in the case of such properties which are used herein means or to be used in or in connection with the Electric Utility Business (as defined in the Company's collateral trust indenture) (whether or not such is the sole use of such property) the lien of the Company's collateral trust indenture and Permitted Liens (as defined in the Company's collateral trust indenture).
(o) Other than as set forth or contemplated in the Prospectus as of the date hereof, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the consolidated financial position, stockholders' equity or results of operations of the Company and its subsidiaries; and, to the best of the Company's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others.
(p) The Company is not, and after giving effect to the offering and sale of the Debt Securities and the application of the proceeds thereof as described in the Prospectus will not be, an "investment company" or an entity "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended, without taking account of any exemption arising out of the number of holders of the Company's securities.
(q) Except as set forth in, or incorporated by reference in, the Prospectus Supplement, the Company and its subsidiaries (i) are in compliance with any and all applicable federal, state and local laws and regulations relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants ("Environmental Laws"), (ii) have received all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses, (iii) are in compliance with all terms and conditions of any such permits, licenses or approvals, and (iv) have not received notice of any actual or potential liability for the investigation or remediation of any disposal or release of hazardous or toxic substances or wastes, pollutants or contaminants, except where such noncompliance with Environmental Laws, failure to receive required permits, licenses or other approvals or any such liability would not, individually or in the aggregate, have a material adverse effect on the condition (financial or otherotherwise), net worth, business, affairs, management, prospects, results of operations earnings, business or cash flow properties of the Company and its Subsidiaries, subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business.
Appears in 1 contract
Samples: Underwriting Agreement (Public Service Co of Colorado)
Representations and Warranties by the Company. The Company represents and warrants to the Sales Agent, the Forward Seller and the Forward Purchaser as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 8(o) of this Agreement, as of that date on which any Placement Notice is given hereunder, as of the time of each sale of any Issuance Shares or Forward Hedge Shares pursuant to this Agreement (the “Applicable Time”) and as of each Settlement Date (as defined below)to, and agrees with the Sales Agent, the Forward Seller and the Forward Purchaser, as followseach Underwriter that:
(1a) The Company satisfies all of meets the requirements of the Securities Act for use of Form S-3 for the offering of the Shares contemplated hereby and the offering and sale of Shares contemplated hereby complies with the requirements of Rule 415 under the Securities Act of 1933, as amended (the "Act") and has filed with the Securities and Exchange Commission (the "Commission") a registration statement (with the file number set forth on Schedule I hereto) on such Form, including a prospectus, for the registration under the Act of the Securities, which registration statement has become effective. Such registration statement and prospectus may have been amended or supplemented from time to time prior to the date of this Agreement. Any such amendment or supplement was or will be timely filed with the Commission, and any such amendment has become effective. The Company will file with the Commission a prospectus supplement (the "Prospectus Supplement") relating to the Securities pursuant to Rule 424 under the Act. At Copies of such registration statement and prospectus, any such amendment or supplement, the time Prospectus Supplement and all documents incorporated by reference therein which were filed with the Commission on or prior to the date of this Agreement have been delivered to you. Such registration statement and such prospectus or any prospectus used in place thereof pursuant to Rule 429 under the initial Act, as amended or supplemented prior to the date of this Agreement and as supplemented by the Prospectus Supplement, are hereinafter called the "Registration Statement," and the "Prospectus," respectively. Any reference herein to the Registration Statement or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 which were filed under the Securities Exchange Act of 1934 (the "Exchange Act") on or before the date of this Agreement, and any reference herein to the terms "amend," "amendment" or "supplement" with respect to the Registration Statement or the Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act deemed to be incorporated by reference therein after the date of this Agreement.
(i) The Registration Statement, at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by it became effective, any post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus)amendment thereto, at the time it became effective, the Company or any person acting on its behalf (within Prospectus, at the meaning, for date of this clause only, of Rule 163(c) under the Securities Act) made any offer relating to the Shares in reliance on the exemption of Rule 163 under the Securities Act Agreement and at the date hereofClosing Date (as hereinafter defined), the Company was any amendments thereof and is a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act, including not having been and not being an “ineligible issuer,” as defined in Rule 405 under the Securities Act. The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 under the Securities Act, supplements thereto 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.” The Company has not received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting to the use of the automatic shelf registration statement form. The Company has paid Indenture complied or will pay the required Commission filing fees relating to the Shares within the time required by Rule 456(b)(1)(i) under the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Securities Act (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) under the Securities Act either in a post-effective amendment to the Registration Statement or on the cover page of the Prospectus).
(2) The Original Registration Statement became effective upon filing under Rule 462(e) under the Securities Act on February 12, 2020. 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 by the Commission, and any request on the part of the Commission for additional information has been complied with.
(3) Any offer that is a written communication relating to the Shares made prior to the initial filing of the Registration Statement by the Company or any person acting on its behalf (within the meaning, for this paragraph only, of Rule 163(c) under the Securities Act) has been filed with the Commission in accordance with the exemption provided by Rule 163 under the Securities Act and otherwise complied with the requirements of Rule 163 under the Securities Act, including without limitation the legending requirement.
(4) The Company has delivered or made available on XXXXX to each of the Sales Agent and the Forward Seller one complete copy of the Registration Statement and a copy of each consent and certificate of experts filed as a part thereof, and conformed copies of the Registration Statement (without exhibits) and the Prospectus, as amended or supplemented, in such quantities and at such places as the Sales Agent or the Forward Seller, as applicable, has reasonably requested. The Prospectus delivered to the Sales Agent and the Forward Seller for use in connection with the offering of Shares will, at the time of such delivery, be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(5) At the respective times the Registration Statement and each amendment thereto became effective, at each deemed effective date with respect to the Sales Agent, the Forward Seller or the Forward Purchaser pursuant to Rule 430B(f)(2) under the Securities Act, as the case may be, the Registration Statement complied and will comply in all material respects with the requirements of the Securities Act, the Trust Indenture Act of 1939 (the "Trust Indenture Act") and the Exchange Act and the respective rules thereunder; (ii) the Registration Statement, at the time and date it was declared effective by the Commission, did not and will not contain 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. The preceding sentence does not apply to statements in or omissions from ; and (iii) and the Registration Statement or any amendment thereto in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, expressly for inclusion in any of the aforementioned documents.
(6) Neither the Prospectus nor any amendments or supplements theretoProspectus, at the time the Prospectus or any such amendment or supplement was issued, as date of the date hereof, at each Representation Date, at each Applicable Time, this Agreement and at each Settlement Datethe Closing Date (as hereinafter defined), as the case may be, included or did not and will include an not contain any untrue statement of a material fact or omitted or and did not and will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply ; PROVIDED, HOWEVER, that the Company makes no representations or warranties as to statements (A) that part of the Registration Statement which shall constitute the Statement of Eligibility and Qualification on Form T-1 (the "Form T-1") under the Trust Indenture Act of the Trustee or (B) the information contained in or omissions omitted from the Prospectus, as amended Registration Statement or supplemented, the Prospectus or any amendment thereof or supplement thereto in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished in writing to the Company in writing by or on behalf of any Underwriter through the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, expressly Representative specifically for inclusion in any of the aforementioned documentsProspectus as amended or supplemented.
(7c) Each document The documents incorporated by reference in the Registration Statement or the Prospectus heretofore filedProspectus, when it was they were filed (or, if any amendment with respect to any such document was filed, when such amendment was filed)the Commission or became effective, conformed in all material respects with to the requirements of the Act or the Exchange Act and the rules and regulations of the Commission thereunder, and any further documents so filed and incorporated after by reference subsequent to the date of this Agreement will, when they are filedfiled with the Commission, conform in all material respects with to the requirements of the Act and the Exchange Act Act, and the rules and regulations of the Commission thereunder; no , and none of such document when it was filed (or, if an amendment with respect to documents includes or will include any such document was filed, when such amendment was filed), contained an untrue statement of a material fact or omitted omits or will omit to state a any material fact required to be stated therein or necessary in order to make the statements therein therein, in the light of the circumstances under which they were made, not misleading; and no PROVIDED, HOWEVER, that such document, when it is filed, will contain an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(8) Each Issuer Free Writing Prospectus (as defined herein), on its issue date, as of each Applicable Time, and as of each Settlement Date, or until any earlier date that the issuer notified or notifies the Sales Agent or the Forward Seller as described in Section 8(d) hereof, 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 incorporated document deemed to be a part thereof that has not been superseded or modified. The foregoing sentence does representation shall not apply to any statements in or omissions from any Issuer Free Writing Prospectus based made in reliance upon and in conformity with written information furnished to by an Underwriter through the Company by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, specifically Representative expressly for use thereinin the Prospectus as supplemented or amended.
(9d) This Agreement The accountants who have certified or shall certify the audited financial statements incorporated by reference as parts of the Registration Statement and the Prospectus are independent accountants as required by the Act and the rules and regulations of the Commission thereunder.
(e) The financial statements and information included or incorporated by reference in the Registration Statement present fairly, in all material respects, the financial position, results of operations and changes in financial position of the Company at the respective dates and for the respective periods indicated, all in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods involved except as therein stated. The Company has no material contingent obligation which is not disclosed in the Registration Statement and Prospectus.
(f) Subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, except as set forth or contemplated in the Registration Statement and the Prospectus, (1) there has not been any material adverse change on the condition (financial or otherwise), earnings, business or properties of the Company, whether or not arising from transactions in the ordinary course of business and (2) there has been duly authorized, executed and delivered no transaction entered into by the Company which is material to the Company, other than transactions in the ordinary course of business.
(g) All the outstanding shares of capital stock of the Company have been duly authorized and this Agreement constitutes a validly issued and are fully paid and non-assessable.
(h) The Securities have been duly authorized by the Company, and, when issued and authenticated in the manner provided for in the Indenture and delivered against payment of the required consideration therefor, will constitute valid and legally binding obligation obligations of the Company enforceable against entitled to the Company benefits of the Indenture.
(i) The Securities conform in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating all material respects to or affecting creditors’ rights generally and by general principles the description thereof in the Prospectus.
(j) Each of equity (the “Exceptions”). The Master Forward Confirmation will have been, as of its date, duly authorized, executed and delivered by the Company and when executed and delivered by the Forward Purchaser, such Master Forward Confirmation will constitute a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by the Exceptions.
(10) The Company and its “Subsidiaries” (as defined in Section 6(a)(13) hereof) have material subsidiaries has been duly incorporated or organized and are is a validly existing as corporations or organizations corporation in good standing under the laws of the states or other jurisdictions jurisdiction in which they are incorporated it is chartered or organized; each of the Company and its material subsidiaries holds all material licenses, with full certificates and permits from governmental authorities necessary for the conduct of its business; and the Company and each such material subsidiary has the corporate power and authority (corporate and other) to own, lease and operate their own its properties and conduct their businesses its business as described in the Prospectus andProspectus.
(k) Neither the Company nor any of its material subsidiaries is in violation of its respective certificate of incorporation or by-laws or in default in the performance of any obligation, with respect agreement, covenant or condition contained in any indenture, loan agreement, mortgage, lease or other agreement or instrument that is material to the Company, to execute and deliver, and perform the Company’s obligations under, this Agreement; the Company and its Subsidiaries are duly qualified material subsidiaries, taken as a whole, to do business as foreign corporations which the Company or organizations in good standing in each state any of its material subsidiaries is a party or other jurisdiction in by which the Company or any of its material subsidiaries or their ownership or leasing of respective property or conduct of business legally requires such qualificationis bound, except where the failure to be so qualifiedfor such violation which, individually singly or in the aggregate, would not have a Material Adverse Effect. The term “Material Adverse Effect” as used herein means any material adverse effect on the condition (financial or otherotherwise), net worthearnings, business, affairs, management, prospects, results of operations business or cash flow properties of the Company and its Subsidiaries, subsidiaries taken as a whole.
(l) The Indenture (A) has been duly qualified under the Trust Indenture Act, the Company has duly authorized the Indenture and, when the Company has duly executed and delivered the Indenture (assuming the due authorization, execution and delivery thereof by the Trustee) it will be a valid and binding agreement of the Company, enforceable against it in accordance with its terms, except as the enforceability thereof may be limited (i) by the effect of bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws now or hereafter in effect relating to or affecting the rights and remedies of creditors generally and (ii) by the effect of general principles of equity, whether enforcement is considered in a proceeding in equity or at law, and the discretion of the court before which any proceedings may be brought; and (B) conforms in all material respects to the description thereof in the Prospectus.
(m) Neither the issuance or sale of the Securities, nor the consummation of any other of the transactions herein contemplated, nor the fulfillment of the terms hereof, will conflict with, result in a breach of any of the terms or provisions of, or constitute a default under, the certificate of incorporation or the by-laws of the Company or any of its material subsidiaries, any indenture, or other agreement or instrument to which the Company or any of its material subsidiaries is a party or by which it or they is bound or, to the best knowledge of the Company, any law, order or regulation applicable to the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Company or any of its material subsidiaries or any of their assets, properties or operations.
(n) The Company has filed a petition with the Public Service Commission of the State of New York ("PSC") with respect to the issue and sale of the Securities. The PSC has authorized or is expected to authorize the issue and sale thereof on or prior to the Closing Date (as hereinafter defined) but upon the express condition that the Company shall file with the PSC for its consideration a copy of this Agreement and a statement setting forth (i) the interest rate for the Securities, (ii) any initial public offering price thereof, (iii) the price to be paid to the Company for the Securities, (iv) any underwriting commissions, (v) any sinking fund or other mandatory redemption provisions and (vi) any redemption prices and dates with respect to redemption of the Securities at the option of the Company. No other consent, waiver, approval, authorization or order of, or filing, registration, qualification, license or permit of or with, any court or governmental agency, body or administrative agency [or other person] is required for the execution, delivery and performance by the Company of this Agreement, the issuance and sale of the Securities, and the consummation of the transactions contemplated hereby, except (i) such as are required under state securities or Blue Sky laws and regulations, and (ii) such as to which the failure to be obtained or made would not reasonably be expected, either individually or in the aggregate, to have a material adverse effect on the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole.
(o) The Company and each material subsidiary of the Company have good and valid title to all or substantially all of their permanent fixed properties (including the specified undivided interests in generating units and plants referred to in the Prospectus), except as otherwise indicated in the Prospectus, subject only to the respective liens of the indentures securing its mortgage debt.
(p) The Company has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement and to consummate the transactions contemplated hereby, including, without limitation, the corporate power and authority to issue, sell and deliver the Securities as provided herein.
(q) This Agreement has been duly authorized and validly executed by the Company.
(s) Except as disclosed in the Prospectus and subject to such qualifications as may be set forth therein, neither the Company nor any of its subsidiaries has violated any foreign, federal, state or local law or regulation relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants ("Environmental Laws"), any provisions of the Employee Retirement Income Security Act of 1974, as amended, or any provisions of the Foreign Corrupt Practices Act or the rules and regulations promulgated thereunder, except for such violation which, singly or in the aggregate, would not have a material adverse effect on the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole.
(t) Except as disclosed in the Prospectus and subject to such qualifications as may be set forth therein, there are no costs or liabilities associated with Environmental Laws (including, without limitation, any capital or operating expenditures required for clean-up, closure of properties or compliance with Environmental Laws or any authorization, any related constrains on operating activities and any potential liabilities to third parties) which would singly or in the aggregate, have a material adverse effect on the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole.
Appears in 1 contract
Samples: Underwriting Agreement (Niagara Mohawk Power Corp /Ny/)
Representations and Warranties by the Company. The Company represents and warrants to the Sales Agent, the Forward Seller and the Forward Purchaser each Underwriter as of the date hereof, the Applicable Time referred to in Section 1(a)(i) hereof and as of each Representation Date (as defined belowthe Closing Time referred to in Section 2(b) on which a certificate is required to be delivered pursuant to Section 8(o) of this Agreement, as of that date on which any Placement Notice is given hereunder, as of the time of each sale of any Issuance Shares or Forward Hedge Shares pursuant to this Agreement (the “Applicable Time”) and as of each Settlement Date (as defined below)hereof, and agrees with the Sales Agent, the Forward Seller and the Forward Purchasereach Underwriter, as follows:
(1A) The Company satisfies all of the requirements of the Securities Act for use of Form S-3 for the offering of the Shares contemplated hereby and the offering and sale of Shares contemplated hereby complies with the requirements of Rule 415 under the Securities Act. At the time of filing the initial filing of the Original Registration Statement, (B) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Securities 1933 Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange 1934 Act or form of prospectus), (C) at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under of the Securities Act1933 Act Regulations) made any offer relating to the Shares Securities in reliance on the exemption of Rule 163 under of the Securities 1933 Act Regulations and (D) at the date hereof, the Company was and is a “well-known seasoned issuer” as defined in Rule 405 under of the Securities Act1933 Act Regulations (“Rule 405”), including not having been and not being an “ineligible issuer,” as defined in Rule 405 under the Securities Act405. The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 under the Securities Act405, and the SharesSecurities, 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.” as the Company meets the requirements of section 1(i)(A) and sections 1(iii) through 1(v), inclusive, of the definition of “well-known seasoned issuer” in Rule 405. The Company has not received from the Commission any notice pursuant to Rule 401(g)(2) under of the Securities 1933 Act Regulations objecting to the use of the automatic shelf registration statement form. The At the time of filing the Original Registration Statement, at the earliest time thereafter that the Company has paid or will pay the required Commission filing fees relating to the Shares another offering participant made a bona fide offer (within the time required by meaning of Rule 456(b)(1)(i164(h)(2) under of the 1933 Act Regulations) of the Securities Act without regard to and at the proviso therein date hereof, the Company was not and otherwise is not an “ineligible issuer,” as defined in accordance with Rules 456(b) and 457(r) under the Securities Act (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) under the Securities Act either in a post-effective amendment to the Registration Statement or on the cover page of the Prospectus)405.
(2ii) The Original Registration Statement became effective upon filing under Rule 462(e) of the 1933 Act Regulations (“Rule 462(e)”) on May 18, 2009, and any post-effective amendment thereto also became effective upon filing under the Securities Act on February 12, 2020Rule 462(e). No stop order suspending the effectiveness of the Registration Statement has been issued under the Securities 1933 Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Company, are contemplated by the Commission, and any request on the part of the Commission for additional information has been complied with.
(3) . Any offer that is a written communication relating to the Shares Securities made prior to the initial filing of the Original Registration Statement by the Company or any person acting on its behalf (within the meaning, for this paragraph only, of Rule 163(c) under of the Securities Act1933 Act Regulations) has been filed with the Commission in accordance with the exemption provided by Rule 163 under of the Securities 1933 Act Regulations (“Rule 163”) and otherwise complied with the requirements of Rule 163 under the Securities Act163, including without limitation the legending requirement.
(4, to qualify such offer for the exemption from Section 5(c) The Company has delivered or made available on XXXXX to each of the Sales Agent and the Forward Seller one complete copy of the Registration Statement and a copy of each consent and certificate of experts filed as a part thereof, and conformed copies of the Registration Statement (without exhibits) and the Prospectus, as amended or supplemented, in such quantities and at such places as the Sales Agent or the Forward Seller, as applicable, has reasonably requested1933 Act provided by Rule 163. The Prospectus delivered to the Sales Agent and the Forward Seller for use in connection with the offering of Shares will, at the time of such delivery, be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(5) At the respective times the Original Registration Statement and each amendment thereto became effective, at each deemed effective date with respect to the Sales Agent, the Forward Seller or the Forward Purchaser Underwriters pursuant to Rule 430B(f)(2) under of the Securities Act, as 1933 Act Regulations and at the case may beClosing Time, the Registration Statement complied and will comply in all material respects with the requirements of the Securities Act, 1933 Act and the 1933 Act Regulations and did not 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. The preceding sentence does not apply to statements in or omissions from the Registration Statement or any amendment thereto in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, expressly for inclusion in any of the aforementioned documents.
(6) Neither the Prospectus nor any amendments or supplements theretothereto (including any prospectus wrapper), at the time the Prospectus or any such amendment or supplement was issued, as of the date hereof, at each Representation Date, at each Applicable Time, issued and at each Settlement Date, as the case may beClosing Time, included or will include an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in Each preliminary prospectus (including the prospectus or omissions from the Prospectus, prospectuses filed as amended or supplemented, in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, expressly for inclusion in any part of the aforementioned documents.
(7) Each document incorporated by reference in the Original Registration Statement or the Prospectus heretofore filed, when it was filed (or, if any amendment with respect to any such document was filed, thereto) complied when such amendment was filed), conformed so filed in all material respects with the requirements 1933 Act Regulations and each preliminary prospectus and the Prospectus delivered to the Underwriters for use in connection with this offering was identical to the electronically transmitted copies thereof filed with the Commission pursuant to EXXXX, except to the extent permitted by Regulation S-T. As of the Exchange Act and Applicable Time, neither (x) the rules and regulations thereunderIssuer General Use Free Writing Prospectus(es) (as defined below) issued at or prior to the Applicable Time (as defined below), and the Statutory Prospectus (as defined below), all considered together (collectively, the “General Disclosure Package”), nor (y) any further documents so filed and incorporated after the date of this Agreement willindividual Issuer Limited Use Free Writing Prospectus, when they are filed, conform in all material respects considered together with the requirements of the Exchange Act and the rules and regulations thereunder; no such document when it was filed (orGeneral Disclosure Package, if an amendment with respect to included any such document was filed, when such amendment was filed), contained an untrue statement of a material fact or omitted to state a any material fact required to be stated therein or necessary in order to make the statements therein therein, in the light of the circumstances under which they were made, not misleading; . As used in this subsection and no such document, when it is filed, will contain an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary elsewhere in order to make the statements therein not misleading.
(8) Each Issuer Free Writing Prospectus (as defined herein), on its issue date, as of each Applicable Time, and as of each Settlement Date, or until any earlier date that the issuer notified or notifies the Sales Agent or the Forward Seller as described in Section 8(d) hereof, 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 incorporated document deemed to be a part thereof that has not been superseded or modified. The foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with written information furnished to the Company by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, specifically for use therein.
(9) This Agreement has been duly authorized, executed and delivered by the Company and this Agreement constitutes a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and by general principles of equity (the “Exceptions”). The Master Forward Confirmation will have been, as of its date, duly authorized, executed and delivered by the Company and when executed and delivered by the Forward Purchaser, such Master Forward Confirmation will constitute a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by the Exceptions.
(10) The Company and its “Subsidiaries” (as defined in Section 6(a)(13) hereof) have been duly incorporated or organized and are validly existing as corporations or organizations in good standing under the laws of the states or other jurisdictions in which they are incorporated or organized, with full power and authority (corporate and other) to own, lease and operate their properties and conduct their businesses as described in the Prospectus and, with respect to the Company, to execute and deliver, and perform the Company’s obligations under, this Agreement; the Company and its Subsidiaries are duly qualified to do business as foreign corporations or organizations in good standing in each state or other jurisdiction in which their ownership or leasing of property or conduct of business legally requires such qualification, except where the failure to be so qualified, individually or in the aggregate, would not have a Material Adverse Effect. The term “Material Adverse Effect” as used herein means any material adverse effect on the condition (financial or other), net worth, business, affairs, management, prospects, results of operations or cash flow of the Company and its Subsidiaries, taken as a whole.:
Appears in 1 contract
Representations and Warranties by the Company. The Company represents and warrants to the Sales Agent, the Forward Seller and the Forward Purchaser as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 8(o) of this Agreement, as of that date on which any Placement Notice is given hereunder, as of the time of each sale of any Issuance Shares or Forward Hedge Shares pursuant to this Agreement (the “Applicable Time”) and as of each Settlement Date (as defined below), and agrees with the Sales Agent, the Forward Seller and the Forward Purchaser, as follows:
(1) The Company satisfies all of the requirements of the Securities Act for use of Form S-3 for the offering of the Shares contemplated hereby and the offering and sale of Shares contemplated hereby complies with the requirements of Rule 415 under the Securities Act. At the time of the initial filing of the Registration Statement, at the time of the most recent amendment thereto 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), at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Securities Act) made any offer relating to the Shares in reliance on the exemption of Rule 163 under the Securities Act and at the date hereof, the Company was and is a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act, including not having been and not being an “ineligible issuer,” as defined in Rule 405 under the Securities Act. The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 under the Securities Act, 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.” The Company has not received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting to the use of the automatic shelf registration statement form. The Company has paid or will pay the required Commission filing fees relating to the Shares within the time required by Rule 456(b)(1)(i) under the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Securities Act (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) under the Securities Act either in a post-effective amendment to the Registration Statement or on the cover page of the Prospectus).
(2) The Original Registration Statement became effective upon filing under Rule 462(e) under the Securities Act on February 12, 2020. 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 by the Commission, and any request on the part of the Commission for additional information has been complied with.
(3) Any offer that is a written communication relating to the Shares made prior to the initial filing of the Registration Statement by the Company or any person acting on its behalf (within the meaning, for this paragraph only, of Rule 163(c) under the Securities Act) has been filed with the Commission in accordance with the exemption provided by Rule 163 under the Securities Act and otherwise complied with the requirements of Rule 163 under the Securities Act, including without limitation the legending requirement.
(4) The Company has delivered or made available on XXXXX to each of the Sales Agent and the Forward Seller one complete copy of the Registration Statement and a copy of each consent and certificate of experts filed as a part thereof, and conformed copies of the Registration Statement (without exhibits) and the Prospectus, as amended or supplemented, in such quantities and at such places as the Sales Agent or the Forward Seller, as applicable, has reasonably requested. The Prospectus delivered to the Sales Agent and the Forward Seller for use in connection with the offering of Shares will, at the time of such delivery, be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(5) At the respective times the Registration Statement and each amendment thereto became effective, at each deemed effective date with respect to the Sales Agent, the Forward Seller or the Forward Purchaser pursuant to Rule 430B(f)(2) under the Securities Act, as the case may be, the Registration Statement complied and will comply in all material respects with the requirements of the Securities Act, and did not 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. The preceding sentence does not apply to statements in or omissions from the Registration Statement or any amendment thereto in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, Agent Content (as applicable, expressly for inclusion in any of the aforementioned documentsdefined below).
(6) Neither the Prospectus nor any amendments or supplements thereto, at the time the Prospectus or any such amendment or supplement was issued, as of the date hereof, at each Representation Date, at each Applicable Time, and at each Settlement Date, as the case may be, included or will include an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from the Prospectus, as amended or supplemented, in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, Agent Content (as applicable, expressly for inclusion in any of the aforementioned documentsdefined below).
(7) Each document incorporated by reference in the Registration Statement or the Prospectus heretofore filed, when it was filed (or, if any amendment with respect to any such document was filed, when such amendment was filed), conformed in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder, and any further documents so filed and incorporated after the date of this Agreement will, when they are filed, conform in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder; no such document when it was filed (or, if an amendment with respect to any such document was filed, when such amendment was filed), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and no such document, when it is filed, will contain an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(8) Each Issuer Free Writing Prospectus (as defined herein), on its issue date, as of each Applicable Time, and as of each Settlement Date, or until any earlier date that the issuer notified or notifies the Sales Agent or the Forward Seller as described in Section 8(d) hereof, 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 incorporated document deemed to be a part thereof that has not been superseded or modified. The foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with written information furnished to the Company by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, specifically for use therein.
(9) This Agreement has been duly authorized, executed and delivered by the Company and this Agreement constitutes a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and by general principles of equity (the “Exceptions”). The Master Forward Confirmation will have been, as of its date, duly authorized, executed and delivered by the Company and when executed and delivered by the Forward Purchaser, such Master Forward Confirmation will constitute a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by the Exceptions.
(10) The Company and its “Subsidiaries” (as defined in Section 6(a)(13) hereof) have been duly incorporated or organized and are validly existing as corporations or organizations in good standing under the laws of the states or other jurisdictions in which they are incorporated or organized, with full power and authority (corporate and other) to own, lease and operate their properties and conduct their businesses as described in the Prospectus and, with respect to the Company, to execute and deliver, and perform the Company’s obligations under, this Agreement; the Company and its Subsidiaries are duly qualified to do business as foreign corporations or organizations in good standing in each state or other jurisdiction in which their ownership or leasing of property or conduct of business legally requires such qualification, except where the failure to be so qualified, individually or in the aggregate, would not have a Material Adverse Effect. The term “Material Adverse Effect” as used herein means any material adverse effect on the condition (financial or other), net worth, business, affairs, management, prospects, results of operations or cash flow of the Company and its Subsidiaries, taken as a whole.
Appears in 1 contract
Samples: Equity Distribution Agreement (Healthcare Realty Trust Inc)
Representations and Warranties by the Company. The Company represents and warrants to the Sales Agent, the Forward Seller and the Forward Purchaser each Underwriter as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 8(o) of this Agreement, as of that date on which any Placement Notice is given hereunderhereof, as of the time of each sale of any Issuance Shares or Forward Hedge Shares pursuant to this Agreement (the “Applicable Time”) and as of each Settlement Date Time (as defined below), as of the Closing Time referred to in Section 2(c) hereof, and as of each Date of Delivery (if any) referred to in Section 2(b) hereof, and agrees with the Sales Agent, the Forward Seller and the Forward Purchasereach Underwriter, as follows:
(1) : The Company satisfies all of meets the requirements of the Securities Act for use of Form S-3 for registration under the offering of 1933 Act. The Registration Statement was filed by the Shares contemplated hereby and the offering and sale of Shares contemplated hereby complies Company with the requirements of Rule 415 under the Securities Act. At the time of the initial filing of the Registration Statement, at the time of the most recent amendment thereto 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 Commission not earlier than three years prior to Section 13 or 15(d) of the Exchange Act or form of prospectus), at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Securities Act) made any offer relating to the Shares in reliance on the exemption of Rule 163 under the Securities Act and at the date hereof, the Company was and is a “well-known seasoned issuer” as defined in Rule 405 . The Registration Statement became effective under the Securities Act, including not having been and not being an “ineligible issuer,” as defined in Rule 405 under 1933 Act upon filing with the Securities ActCommission. The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 under the Securities Act405, and the Shares, since their registration on the Registration Statement, Securities have been and remain eligible for registration by the Company on a Rule 405 “an automatic shelf registration statement.” The Company has not received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting to the use of the automatic shelf registration statement form. The Company has paid or will pay the required Commission filing fees relating to the Shares within the time required by Rule 456(b)(1)(i) under the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Securities Act (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) under the Securities Act either in a post-effective amendment to the Registration Statement or on the cover page of the Prospectus).
(2) The Original Registration Statement became effective upon filing under Rule 462(e) under the Securities Act on February 12, 2020. No stop order suspending the effectiveness of the Registration Statement or any part thereof has been issued under the Securities 1933 Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Company, are contemplated by the CommissionCommission nor any state or other jurisdiction or regulatory body, and no notice of objection of the Commission to the use of such registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) of the 1933 Act Regulations has been received by the Company. No order preventing or suspending the use of any preliminary prospectus or the Prospectus has been issued and no proceeding for that purpose has been instituted or, to the knowledge of the Company, threatened or contemplated by the Commission or any state or other jurisdiction or regulatory body. Any request on the part of the Commission Commission, any state or other jurisdiction or other regulatory body for additional information has been complied with.
(3) Any offer that is a written communication relating . At the respective times the Registration Statement and any post-effective amendments thereto became effective, at each deemed effective date with respect to the Shares made prior Underwriters and the Securities pursuant to Rule 430B(f)(2), and at the initial filing Closing Time (and, if any Option Securities are purchased, at the Date of Delivery), the Registration Statement and any amendments and supplements thereto complied, complies and will comply in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations, and did not, does not 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 in order to make the statements therein not misleading. Neither the Prospectus nor any amendments or supplements thereto, at the time the Prospectus or any such amendment or supplement was issued, at the Closing Time or at any Date of Delivery, included, includes or will include an untrue statement of a material fact or omitted, omits or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Any preliminary prospectus (including the prospectus filed as part of the Registration Statement by the Company or any person acting on its behalf (within the meaning, for this paragraph only, of Rule 163(camendment thereto) under the Securities Act) has been complied when so filed in all material respects with the Commission in accordance with the exemption provided by Rule 163 under the Securities 1933 Act and otherwise complied with the requirements of Rule 163 under 1933 Act Regulations and any such preliminary prospectus and the Securities Act, including without limitation the legending requirement.
(4) The Company has Prospectus delivered or made available on XXXXX to each of the Sales Agent and the Forward Seller one complete copy of the Registration Statement and a copy of each consent and certificate of experts filed as a part thereof, and conformed copies of the Registration Statement (without exhibits) and the Prospectus, as amended or supplemented, in such quantities and at such places as the Sales Agent or the Forward Seller, as applicable, has reasonably requested. The Prospectus delivered to the Sales Agent and the Forward Seller Underwriters for use in connection with the offering of Shares Securities was and will, at the time of such delivery, be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
T. As of the Applicable Time, each Issuer-Represented Free Writing Prospectus (5as defined below) At the respective times the Registration Statement and each amendment thereto became effective, at each deemed effective date with respect to the Sales Agentidentified on Schedule B, the Forward Seller or Statutory Prospectus (as defined below) and the Forward Purchaser pursuant information agreed to Rule 430B(f)(2) under in writing by the Securities Act, Company and the Underwriters as the case may be, information to be conveyed orally by the Registration Statement complied and will comply in all material respects with the requirements Underwriters to purchasers of the Securities Actat the Applicable Time as set forth on Schedule B, and all considered together (collectively, the “General Disclosure Package”), did not and will not contain 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. The preceding sentence does not apply to statements in or omissions from the Registration Statement or any amendment thereto in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, expressly for inclusion in any of the aforementioned documents.
(6) Neither the Prospectus nor any amendments or supplements thereto, at the time the Prospectus or any such amendment or supplement was issued, as of the date hereof, at each Representation Date, at each Applicable Time, and at each Settlement Date, as the case may be, included or will include an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The representations and warranties in the preceding sentence does three paragraphs shall not apply to statements in or omissions from the ProspectusRegistration Statement, as amended or supplementedany post-effective amendment thereto, or the Prospectus or the General Disclosure Package, or any amendments or supplements thereto, made in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, Representatives on behalf of the Forward Seller or the Forward Purchaser, as applicable, Underwriters expressly for inclusion in any of the aforementioned documents.
(7) Each document incorporated by reference use in the Registration Statement or any post-effective amendment thereto, or the Prospectus heretofore filedor the General Disclosure Package, when it was filed (or, if or any amendment with respect to any such document was filed, when such amendment was filed), conformed in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder, and any further documents so filed and incorporated after the date of this Agreement will, when they are filed, conform in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder; no such document when it was filed (or, if an amendment with respect to any such document was filed, when such amendment was filed), contained an untrue statement of a material fact amendments or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and no such document, when it is filed, will contain an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(8) Each Issuer Free Writing Prospectus (as defined herein), on its issue datesupplements thereto, as of each Applicable Time, the case may be. As used in this subsection and as of each Settlement Date, or until any earlier date that the issuer notified or notifies the Sales Agent or the Forward Seller as described elsewhere in Section 8(d) hereof, 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 incorporated document deemed to be a part thereof that has not been superseded or modified. The foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with written information furnished to the Company by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, specifically for use therein.
(9) This Agreement has been duly authorized, executed and delivered by the Company and this Agreement constitutes a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and by general principles of equity (the “Exceptions”). The Master Forward Confirmation will have been, as of its date, duly authorized, executed and delivered by the Company and when executed and delivered by the Forward Purchaser, such Master Forward Confirmation will constitute a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by the Exceptions.
(10) The Company and its “Subsidiaries” (as defined in Section 6(a)(13) hereof) have been duly incorporated or organized and are validly existing as corporations or organizations in good standing under the laws of the states or other jurisdictions in which they are incorporated or organized, with full power and authority (corporate and other) to own, lease and operate their properties and conduct their businesses as described in the Prospectus and, with respect to the Company, to execute and deliver, and perform the Company’s obligations under, this Agreement; the Company and its Subsidiaries are duly qualified to do business as foreign corporations or organizations in good standing in each state or other jurisdiction in which their ownership or leasing of property or conduct of business legally requires such qualification, except where the failure to be so qualified, individually or in the aggregate, would not have a Material Adverse Effect. The term “Material Adverse Effect” as used herein means any material adverse effect on the condition (financial or other), net worth, business, affairs, management, prospects, results of operations or cash flow of the Company and its Subsidiaries, taken as a whole.:
Appears in 1 contract
Representations and Warranties by the Company. The Company represents and warrants to the Sales Agent, the Forward Seller and the Forward Purchaser as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 8(o) of this Agreement, as of that date on which any Placement Notice is given hereunder, as of the time of each sale of any Issuance Shares or Forward Hedge Shares pursuant to this Agreement (the “Applicable Time”) and as of each Settlement Date (as defined below)to, and agrees with the Sales Agentwith, the Forward Seller and the Forward Purchaser, as followseach Underwriter that:
(1a) The Company satisfies all of meets the requirements of the Securities Act for use of Form S-3 under the Securities Act of 1933, as amended (the "Act") and has filed with the Securities and Exchange Commission (the "Commission") a registration statement on such Form, including a prospectus, for the registration under the Act of the Bonds, which registration statement has become effective. Such registration statement and prospectus may have been amended or supplemented from time to time prior to the date of this Agreement (which date is set forth in Schedule I hereto). Any such amendment or supplement was filed with the Commission and any such amendment has become effective. The Company will file with the Commission a prospectus supplement (the "Prospectus Supplement") relating to the Bonds pursuant to Rule 424 and/or Rule 434 under the Act. Copies of such registration statement and prospectus, any such amendment or supplement and all documents incorporated by reference therein which were filed with the Commission on or prior to the date of this Agreement have been delivered to you and copies of the Prospectus Supplement will be delivered to you promptly after it is filed with the Commission. Such registration statement, as amended prior to the date of this Agreement, and such prospectus, as amended and supplemented prior to the date of this Agreement and as supplemented by the Prospectus Supplement, are hereinafter called the "Registration Statement" and the "Prospectus", respectively. Any reference herein to the Registration Statement or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 which were filed under the Securities Exchange Act of 1934, as amended (the "Exchange Act") on or before the date of this Agreement and, if the Company files any document pursuant to the Exchange Act after the date of this Agreement and prior to the termination of the offering of the Shares contemplated hereby Bonds by the Underwriters, which documents are deemed to be incorporated by reference into the Prospectus, the term "Prospectus" shall refer also to said prospectus as supplemented by the documents so filed from and after the offering and sale of Shares contemplated hereby complies time said documents are filed with the requirements of Rule 415 under the Securities ActCommission. At the time There are no contracts or documents of the initial filing Company or any of its subsidiaries that are required to be filed as exhibits to the Registration Statement or any documents incorporated by reference therein by the Act, the Exchange Act or the rules and regulations thereunder which have not been so filed.
(b) No order preventing or suspending the use of the Prospectus or the Registration Statement has been issued by the Commission and the Registration Statement, at the time date of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective amendmentthis Agreement, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Securities Act) made any offer relating to the Shares in reliance on the exemption of Rule 163 under the Securities Act and at the date hereof, the Company was and is a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act, including not having been and not being an “ineligible issuer,” as defined in Rule 405 under the Securities Act. The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 under the Securities Act, 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.” The Company has not received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting to the use of the automatic shelf registration statement form. The Company has paid or will pay the required Commission filing fees relating to the Shares within the time required by Rule 456(b)(1)(i) under the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Securities Act (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) under the Securities Act either in a post-effective amendment to the Registration Statement or on the cover page of the Prospectus).
(2) The Original Registration Statement became effective upon filing under Rule 462(e) under the Securities Act on February 12, 2020. 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 by the Commission, and any request on the part of the Commission for additional information has been complied with.
(3) Any offer that is a written communication relating to the Shares made prior to the initial filing of the Registration Statement by the Company or any person acting on its behalf (within the meaning, for this paragraph only, of Rule 163(c) under the Securities Act) has been filed with the Commission in accordance with the exemption provided by Rule 163 under the Securities Act and otherwise complied with the requirements of Rule 163 under the Securities Act, including without limitation the legending requirement.
(4) The Company has delivered or made available on XXXXX to each of the Sales Agent and the Forward Seller one complete copy of the Registration Statement and a copy of each consent and certificate of experts filed as a part thereof, and conformed copies of the Registration Statement (without exhibits) and the Prospectus, as amended or supplemented, in such quantities and at such places as the Sales Agent or the Forward Seller, as applicable, has reasonably requested. The Prospectus delivered to the Sales Agent and the Forward Seller for use in connection with the offering of Shares will, at the time of such delivery, be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(5) At the respective times the Registration Statement and each amendment thereto became effective, at each deemed effective date with respect to the Sales Agent, the Forward Seller or the Forward Purchaser pursuant to Rule 430B(f)(2) under the Securities Act, as the case may be, the Registration Statement complied and will comply in all material respects with the requirements of the Securities Act, the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act") and the respective rules and regulations of the Commission thereunder and did not and will not contain 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. The preceding sentence does not apply to statements in or omissions from the Registration Statement or any amendment thereto in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, expressly for inclusion in any of the aforementioned documents.
(6) Neither the Prospectus nor any amendments or supplements thereto, at the time the Prospectus or any such amendment or supplement was issued, as of the date hereof, at each Representation Date, at each Applicable Time, and at each Settlement Date, as the case may be, included or will include an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from the Prospectus, as amended or supplemented, in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, expressly for inclusion in any of the aforementioned documents.
(7) Each document incorporated by reference in the Registration Statement or the Prospectus heretofore filed, when it was filed (or, if any amendment with respect to any such document was filed, when such amendment was filed), conformed in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder, and any further documents so filed and incorporated after the date of this Agreement will, when they are filed, conform in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder; no such document when it was filed (or, if an amendment with respect to any such document was filed, when such amendment was filed), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and, at the time the Prospectus Supplement is filed with the Commission and no such documentat the Closing Date (as hereinafter defined), when it is filed, the Prospectus will comply in all material respects with the Act and the rules and regulations of the Commission thereunder and will not contain an any untrue statement of a material fact or will omit to state a any material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(8) Each Issuer Free Writing Prospectus (as defined herein), on its issue date, as of each Applicable Time, and as of each Settlement Date, or until any earlier date ; PROVIDED that the issuer notified Company makes no representations or notifies warranties as to (A) that part of the Sales Agent Registration Statement which shall constitute the Statement of Eligibility (Form T-1) under the Trust Indenture Act of the Trustee or the Forward Seller as described in Section 8(d(B) hereof, did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in or omitted from the Registration Statement or the Prospectus in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of any Underwriter through the Representatives specifically for use in the Registration Statement or Prospectus.
(c) The documents incorporated by reference in the Prospectus, including when they were filed with the Commission, conformed in all material respects to the requirements of the Exchange Act and the rules and regulations of the Commission thereunder, and any documents so filed and incorporated document deemed by reference subsequent to the date of this Agreement will, when they are filed with the Commission, conform in all material respects to the requirements of the Exchange Act, and the rules and regulations of the Commission thereunder; and none of such documents include or will include any untrue statement of a material fact or omit or will omit to state any 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.
(d) Deloitte & Touche LLP and Price Waterhouse LLP which audited certain of the financial statements incorporated by reference in the Registration Statement, are each independent public accountants as required by the Act and the rules and regulations of the Commission thereunder.
(e) The financial statements of the Company and its consolidated subsidiaries filed as a part thereof that of or incorporated by reference in the Registration Statement or Prospectus fairly present the financial position of the Company and its consolidated subsidiaries as of the dates indicated and the results of their operations and changes in financial position for the periods specified, and have been prepared in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods involved, except as disclosed in the Prospectus Supplement. The unaudited pro forma financial information incorporated by reference in the Registration Statement and the Prospectus complies in all material respects with the applicable accounting requirements of Rule 11-02 of Regulation S-X and the pro forma adjustments have been properly applied to the historical amounts in the compilation of such information.
(f) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Minnesota with due corporate authority to carry on the business in which it is engaged and to own and operate the properties used by it in such business, as described in the Prospectus; the Company is qualified to do business as a foreign corporation and is in good standing under the laws of the States of North Dakota and South Dakota; and the Company is not required by the nature of its business to be licensed or qualified as a foreign corporation in any other state or jurisdiction; and, except as set forth in the Prospectus Supplement, the Company has all material licenses and approvals required at the date hereof to conduct its business.
(g) Each subsidiary of the Company named in Exhibit 21.01 to the Company's most recent Annual Report on Form 10-K ("Significant Subsidiary") has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation and is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which it owns or leases substantial properties or in which the conduct of its business requires such qualification; all of the issued and outstanding capital stock of each such subsidiary has been duly authorized and validly issued and is fully paid and non-assessable; and the capital stock of each such subsidiary owned by the Company, directly or through subsidiaries, is owned free and clear of any pledge, lien, encumbrance, claim or equity.
(h) Neither the Company nor any of its subsidiaries has sustained since the date of the latest audited financial statements included or incorporated by reference in the Prospectus any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus Supplement; and, since the respective dates as of which information is given in the Registration Statement and the Prospectus Supplement, neither the Company nor any of its subsidiaries has incurred any liabilities or obligations, direct or contingent, or entered into any transactions, not in the ordinary course of business, which are material to the Company and its subsidiaries, and there has not been superseded any material change in the capital stock or modified. The foregoing sentence does not apply to statements long-term debt of the Company or any of its subsidiaries or any material adverse change, or any development involving a prospective material adverse change, in or omissions from affecting the general affairs, management, financial position, stockholders' equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Prospectus Supplement.
(i) Neither the execution and delivery of this Agreement and the Indenture, the issuance and delivery of the Bonds, the consummation of the transactions herein contemplated, the fulfillment of the terms hereof, nor compliance with the terms and provisions of this Agreement, the Bonds and the Indenture will conflict with, or result in the breach of, any Issuer Free Writing Prospectus based upon and of the terms, provisions or conditions of the Restated Articles of Incorporation, as amended, or by-laws of the Company, or of any contract, agreement or instrument to which the Company is a party or in conformity with written information furnished which the Company has a beneficial interest or by which the Company is bound or of any order, rule or regulation applicable to the Company by of any court or of any federal or state regulatory body or administrative agency or other governmental body having jurisdiction over the Sales Agent, the Forward Seller Company or the Forward Purchaser, as applicable, specifically for use thereinover its properties.
(9j) This The Bonds have been duly authorized for issuance and sale pursuant to this Agreement and, when executed and authenticated in accordance with the Indenture and delivered and paid for as provided herein, will be duly issued and will constitute valid and binding obligations of the Company enforceable in accordance with their terms, except as limited by bankruptcy, insolvency and other laws affecting enforcement of creditors' rights, and will be entitled to the benefits of the Indenture which will be substantially in the form heretofore delivered to you.
(k) The Indenture has been duly authorizedand validly authorized by the Company and, when duly executed and delivered by the Company Company, assuming due authorization, execution and this Agreement constitutes delivery thereof by the Trustee, will constitute a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability enforcement thereof may be limited by bankruptcy, insolvencyinsolvency or other laws affecting enforcement of creditors' rights.
(l) The Minnesota Public Utilities Commission has issued its order approving capital structure which order authorizes the issuance of the Bonds, fraudulent conveyanceand no other approval of any regulatory public body, reorganizationstate or federal, moratorium is, or will be at the Closing Date (as hereinafter defined), necessary in connection with the issuance and sale of the Bonds pursuant to this Agreement, other than approvals that may be required under state securities laws.
(m) The Company has good and valid title to all real and fixed property and leasehold rights described or enumerated in the Indenture (except such properties as have been released from the lien thereof in accordance with the terms thereof), subject only to taxes and assessments not yet delinquent; the lien of the Indenture; as to parts of the Company's property, certain easements, conditions, restrictions, leases, and similar laws relating to or affecting creditors’ rights generally and by general principles encumbrances which do not affect the Company's use of equity (such property in the “Exceptions”). The Master Forward Confirmation will have been, as usual course of its datebusiness, duly authorizedand certain minor defects in titles which are not material, executed and delivered defects in titles to certain properties which are not essential to the Company's business; and mechanics' lien claims being contested or not of record or for the satisfaction or discharge of which adequate provision has been made by the Company pursuant to the Indenture; and when executed any real property and delivered buildings held under lease by the Forward PurchaserCompany is held by it under valid, subsisting and enforceable leases with such Master Forward Confirmation will constitute exceptions as are not material and do not interfere with the use made and proposed to be made of such property and buildings by the Company.
(n) Other than as set forth or contemplated in the Prospectus as of the date hereof, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a valid and legally binding obligation party or of which any property of the Company enforceable against or any of its subsidiaries is the subject which, if determined adversely to the Company in accordance with or any of its termssubsidiaries, except as enforceability may be limited by the Exceptions.
(10) The Company and its “Subsidiaries” (as defined in Section 6(a)(13) hereof) have been duly incorporated would individually or organized and are validly existing as corporations or organizations in good standing under the laws of the states or other jurisdictions in which they are incorporated or organized, with full power and authority (corporate and other) to own, lease and operate their properties and conduct their businesses as described in the Prospectus andaggregate have a material adverse effect on the consolidated financial position, with respect to the Company, to execute and deliver, and perform the Company’s obligations under, this Agreement; stockholders' equity or results of operations of the Company and its Subsidiaries subsidiaries; and, to the best of the Company's knowledge, no such proceedings are duly qualified threatened or contemplated by governmental authorities or threatened by others.
(o) The Company is not an "investment company" or an entity "controlled" by an "investment company, " as such terms are defined in the Investment Company Act of 1940, as amended.
(p) Except as set forth in the Prospectus Supplement, the Company and its subsidiaries (A) are in compliance with any and all applicable federal, state and local laws and regulations relating to do business as foreign corporations the protection of human health and safety, the environment or organizations in good standing in each state hazardous or toxic substances or wastes, pollutants or contaminants ("Environmental Laws"), (B) have received all permits, licenses or other jurisdiction approvals required of them under applicable Environmental Laws to conduct its respective business and (C) are in which their ownership compliance with all terms and conditions of any such permits, licenses or leasing of property or conduct of business legally requires such qualificationapprovals, except where the such noncompliance with Environmental Laws, failure to be so qualifiedreceive required permits, individually licenses or other approvals or failure to comply with the terms and conditions of such permits, licenses or approvals would not, singly or in the aggregate, would not have a Material Adverse Effect. The term “Material Adverse Effect” as used herein means any material adverse effect on the condition (financial or other), net worth, business, affairs, management, prospects, results of operations or cash flow of the Company and its Subsidiariessubsidiaries, taken as a whole.
Appears in 1 contract
Samples: Underwriting Agreement (Northern States Power Co /Mn/)
Representations and Warranties by the Company. The Company represents and warrants to the Sales Agent, the Forward Seller and the Forward Purchaser as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 8(o) of this Agreement, as of that date on which any Placement Notice is given hereunder, as of the time of each sale of any Issuance Shares or Forward Hedge Shares pursuant to this Agreement (the “Applicable Time”) and as of each Settlement Date (as defined below)to, and agrees with the Sales Agent, the Forward Seller and the Forward Purchaser, as followseach Underwriter that:
(1a) The Company satisfies all of meets the requirements of the Securities Act for use of Form S-3 for the offering of the Shares contemplated hereby and the offering and sale of Shares contemplated hereby complies with the requirements of Rule 415 under the Securities Act of 1933, as amended (the "Act") and has filed with the Securities and Exchange Commission (the "Commission") a registration statement (with the file number set forth on Schedule I hereto) on such Form, including a prospectus, for the registration under the Act of the Securities, which registration statement has become effective. Such registration statement and prospectus may have been amended or supplemented from time to time prior to the date of this Agreement. Any such amendment or supplement was or will be timely filed with the Commission and any such amendment has become effective. The Company will file with the Commission a prospectus supplement (the "Prospectus Supplement") relating to the Securities pursuant to Rule 424 under the Act. At Copies of such registration statement and prospectus, any such amendment or supplement, the time Prospectus Supplement and all documents incorporated by reference therein which were filed with the Commission on or prior to the date of this Agreement have been delivered to you. Such registration statement and such prospectus or any prospectus used in place thereof pursuant to Rule 429 under the initial Act, as amended or supplemented prior to the date of this Agreement and as supplemented by the Prospectus Supplement, are hereinafter called the "Registration Statement," and the "Prospectus," respectively. Any reference herein to the Registration Statement or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 which were filed under the Securities Exchange Act of 1934 (the "Exchange Act") on or before the date of this Agreement, and any reference herein to the terms "amend," "amendment" or "supplement" with respect to the Registration Statement or the Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act deemed to be incorporated by reference therein after the date of this Agreement.
(i) The Registration Statement, at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by it became effective, any post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus)amendment thereto, at the time it became effective, the Company or any person acting on its behalf (within Prospectus, at the meaning, for date of this clause only, of Rule 163(c) under the Securities Act) made any offer relating to the Shares in reliance on the exemption of Rule 163 under the Securities Act Agreement and at the date hereofClosing Date (as hereinafter defined), the Company was any amendments thereof and is a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act, including not having been and not being an “ineligible issuer,” as defined in Rule 405 under the Securities Act. The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 under the Securities Act, supplements thereto 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.” The Company has not received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting to the use of the automatic shelf registration statement form. The Company has paid Indenture complied or will pay the required Commission filing fees relating to the Shares within the time required by Rule 456(b)(1)(i) under the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Securities Act (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) under the Securities Act either in a post-effective amendment to the Registration Statement or on the cover page of the Prospectus).
(2) The Original Registration Statement became effective upon filing under Rule 462(e) under the Securities Act on February 12, 2020. 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 by the Commission, and any request on the part of the Commission for additional information has been complied with.
(3) Any offer that is a written communication relating to the Shares made prior to the initial filing of the Registration Statement by the Company or any person acting on its behalf (within the meaning, for this paragraph only, of Rule 163(c) under the Securities Act) has been filed with the Commission in accordance with the exemption provided by Rule 163 under the Securities Act and otherwise complied with the requirements of Rule 163 under the Securities Act, including without limitation the legending requirement.
(4) The Company has delivered or made available on XXXXX to each of the Sales Agent and the Forward Seller one complete copy of the Registration Statement and a copy of each consent and certificate of experts filed as a part thereof, and conformed copies of the Registration Statement (without exhibits) and the Prospectus, as amended or supplemented, in such quantities and at such places as the Sales Agent or the Forward Seller, as applicable, has reasonably requested. The Prospectus delivered to the Sales Agent and the Forward Seller for use in connection with the offering of Shares will, at the time of such delivery, be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(5) At the respective times the Registration Statement and each amendment thereto became effective, at each deemed effective date with respect to the Sales Agent, the Forward Seller or the Forward Purchaser pursuant to Rule 430B(f)(2) under the Securities Act, as the case may be, the Registration Statement complied and will comply in all material respects with the requirements of the Securities Act, the Trust Indenture Act of 1939 (the "Trust Indenture Act") and did not the Exchange Act 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. The preceding sentence does not apply to statements in or omissions from respective rules thereunder and (ii) neither the Registration Statement or any amendment thereto in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, expressly for inclusion in any of the aforementioned documents.
(6) Neither nor the Prospectus nor any amendments or supplements thereto, at the time the Prospectus or any such amendment thereof or supplement was issued, as of the date hereof, at each Representation Date, at each Applicable Time, and at each Settlement Date, as the case may be, included thereto contained or will include an contain any untrue statement of a material fact or omitted or will omit to state a any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply ; provided, however, 2 3 that the Company makes no representations or warranties as to statements (A) that part of the Registration Statement which shall constitute the Statement of Eligibility (Form T-1) under the Trust Indenture Act of the Trustee or (B) the information contained in or omissions omitted from the Prospectus, as amended Registration Statement or supplemented, the Prospectus or any amendment thereof or supplement thereto in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished in writing to the Company in writing by or on behalf of any Underwriter through the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, Representatives expressly for inclusion use in any of the aforementioned documentsProspectus as amended or supplemented.
(7c) Each document The documents incorporated by reference in the Registration Statement or the Prospectus heretofore filedProspectus, when it was they were filed (or, if any amendment with respect to any such document was filed, when such amendment was filed)the Commission or became effective, conformed in all material respects with to the requirements of the Act or the Exchange Act and the rules and regulations of the Commission thereunder, and any further documents so filed and incorporated after by reference subsequent to the date of this Agreement will, when they are filedfiled with the Commission, conform in all material respects with to the requirements of the Act and the Exchange Act Act, and the rules and regulations of the Commission thereunder; no , and none of such document when it was filed (or, if an amendment with respect to documents include or will include any such document was filed, when such amendment was filed), contained an untrue statement of a material fact or omitted omit or will omit to state a any material fact required to be stated therein or necessary in order to make the statements therein therein, in the light of the circumstances under which they were made, not misleading; and no provided, however, that such document, when it is filed, will contain an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(8) Each Issuer Free Writing Prospectus (as defined herein), on its issue date, as of each Applicable Time, and as of each Settlement Date, or until any earlier date that the issuer notified or notifies the Sales Agent or the Forward Seller as described in Section 8(d) hereof, 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 incorporated document deemed to be a part thereof that has not been superseded or modified. The foregoing sentence does representation shall not apply to any statements in or omissions from any Issuer Free Writing Prospectus based made in reliance upon and in conformity with written information furnished to by an Underwriter through the Company by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, specifically representatives expressly for use thereinin the Prospectus as supplemented or amended.
(9d) This Agreement has been duly authorized, executed The accountants who have certified or shall certify the audited financial statements incorporated by reference as parts of the Registration Statement and delivered the Prospectus are independent accountants as required by the Company Act and this Agreement constitutes a valid the rules and legally binding obligation regulations of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and by general principles of equity (the “Exceptions”). The Master Forward Confirmation will have been, as of its date, duly authorized, executed and delivered by the Company and when executed and delivered by the Forward Purchaser, such Master Forward Confirmation will constitute a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by the ExceptionsCommission thereunder.
(10e) The Company financial statements and its “Subsidiaries” (as defined in Section 6(a)(13) hereof) have been duly information included or incorporated or organized and are validly existing as corporations or organizations in good standing under the laws of the states or other jurisdictions in which they are incorporated or organized, with full power and authority (corporate and other) to own, lease and operate their properties and conduct their businesses as described by reference in the Prospectus andRegistration Statement present fairly, with respect to in all material respects, the Company, to execute and deliver, and perform the Company’s obligations under, this Agreement; the Company and its Subsidiaries are duly qualified to do business as foreign corporations or organizations in good standing in each state or other jurisdiction in which their ownership or leasing of property or conduct of business legally requires such qualification, except where the failure to be so qualified, individually or in the aggregate, would not have a Material Adverse Effect. The term “Material Adverse Effect” as used herein means any material adverse effect on the condition (financial or other), net worth, business, affairs, management, prospectsposition, results of operations or cash flow and changes in financial position of the Company at the respective dates and its Subsidiariesfor the respective periods indicated, taken all in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods involved except as a wholetherein stated. The Company has no material contingent obligation which is not disclosed in the Registration Statement and Prospectus.
(f) Subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, except as set forth in the Registration Statement and the Prospectus, there has not been any material
Appears in 1 contract
Samples: Underwriting Agreement (Niagara Mohawk Power Corp /Ny/)
Representations and Warranties by the Company. The Company represents and warrants to the Sales Agent, the Forward Seller and the Forward Purchaser as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 8(o) of this Agreement, as of that date on which any Placement Notice is given hereunder, as of the time of each sale of any Issuance Shares or Forward Hedge Shares pursuant to this Agreement (the “Applicable Time”) and as of each Settlement Date (as defined below)to, and agrees with the Sales Agent, the Forward Seller and the Forward Purchaser, as followseach Underwriter that:
(1a) The Company satisfies all of meets the requirements of the Securities Act for use of Form S-3 for the offering of the Shares contemplated hereby and the offering and sale of Shares contemplated hereby complies with the requirements of Rule 415 under the Securities Act of 1933, as amended (the "Act") and has filed with the Securities and Exchange Commission (the "Commission") a registration statement (with the file number set forth on Schedule I hereto) on such Form, including a prospectus, for the registration under the Act of the Securities, which registration statement has become effective. Such registration statement and prospectus may have been amended or supplemented from time to time prior to the date of this Agreement. Any such amendment or supplement was or will be timely filed with the Commission and any such amendment has become effective. The Company will file with the Commission a prospectus supplement (the "Prospectus Supplement") relating to the Securities pursuant to Rule 424 under the Act. At Copies of such registration statement and prospectus, any such amendment or supplement, the time Prospectus Supplement and all documents incorporated by reference therein which were filed with the Commission on or prior to the date of this Agreement have been delivered to you. Such registration statement and such prospectus or any prospectus used in place thereof pursuant to Rule 429 under the initial Act, as amended or supplemented prior to the date of this Agreement and as supplemented by the Prospectus Supplement, are hereinafter called the "Registration Statement," and the "Prospectus," respectively. Any reference herein to the Registration Statement or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 which were filed under the Securities Exchange Act of 1934 (the "Exchange Act") on or before the date of this Agreement, and any reference herein to the terms "amend," "amendment" or "supplement" with respect to the Registration Statement or the Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act deemed to be incorporated by reference therein after the date of this Agreement.
(i) The Registration Statement, at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by it became effective, any post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus)amendment thereto, at the time it became effective, the Company or any person acting on its behalf (within Prospectus, at the meaning, for date of this clause only, of Rule 163(c) under the Securities Act) made any offer relating to the Shares in reliance on the exemption of Rule 163 under the Securities Act Agreement and at the date hereofClosing Date (as hereinafter defined), the Company was any amendments thereof and is a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act, including not having been and not being an “ineligible issuer,” as defined in Rule 405 under the Securities Act. The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 under the Securities Act, supplements thereto 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.” The Company has not received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting to the use of the automatic shelf registration statement form. The Company has paid Mortgage complied or will pay the required Commission filing fees relating to the Shares within the time required by Rule 456(b)(1)(i) under the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Securities Act (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) under the Securities Act either in a post-effective amendment to the Registration Statement or on the cover page of the Prospectus).
(2) The Original Registration Statement became effective upon filing under Rule 462(e) under the Securities Act on February 12, 2020. 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 by the Commission, and any request on the part of the Commission for additional information has been complied with.
(3) Any offer that is a written communication relating to the Shares made prior to the initial filing of the Registration Statement by the Company or any person acting on its behalf (within the meaning, for this paragraph only, of Rule 163(c) under the Securities Act) has been filed with the Commission in accordance with the exemption provided by Rule 163 under the Securities Act and otherwise complied with the requirements of Rule 163 under the Securities Act, including without limitation the legending requirement.
(4) The Company has delivered or made available on XXXXX to each of the Sales Agent and the Forward Seller one complete copy of the Registration Statement and a copy of each consent and certificate of experts filed as a part thereof, and conformed copies of the Registration Statement (without exhibits) and the Prospectus, as amended or supplemented, in such quantities and at such places as the Sales Agent or the Forward Seller, as applicable, has reasonably requested. The Prospectus delivered to the Sales Agent and the Forward Seller for use in connection with the offering of Shares will, at the time of such delivery, be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(5) At the respective times the Registration Statement and each amendment thereto became effective, at each deemed effective date with respect to the Sales Agent, the Forward Seller or the Forward Purchaser pursuant to Rule 430B(f)(2) under the Securities Act, as the case may be, the Registration Statement complied and will comply in all material respects with the requirements of the Securities Act, the Trust Indenture Act of 1939 (the "Trust Indenture Act") and did not the Exchange Act 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. The preceding sentence does not apply to statements in or omissions from respective rules thereunder and (ii) neither the Registration Statement or any amendment thereto in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, expressly for inclusion in any of the aforementioned documents.
(6) Neither nor the Prospectus nor any amendments or supplements thereto, at the time the Prospectus or any such amendment thereof or supplement was issued, as of the date hereof, at each Representation Date, at each Applicable Time, and at each Settlement Date, as the case may be, included thereto contained or will include an contain any untrue statement of a material fact or omitted or will omit to state a any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from the Prospectus; provided, as amended or supplementedhowever, in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to that the Company in writing by the Sales Agent, the Forward Seller makes no representations or the Forward Purchaser, warranties as applicable, expressly for inclusion in any to (A) that part of the aforementioned documents.
(7) Each document incorporated by reference in the Registration Statement or the Prospectus heretofore filed, when it was filed (or, if any amendment with respect to any such document was filed, when such amendment was filed), conformed in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder, and any further documents so filed and incorporated after the date of this Agreement will, when they are filed, conform in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder; no such document when it was filed (or, if an amendment with respect to any such document was filed, when such amendment was filed), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and no such document, when it is filed, will contain an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(8) Each Issuer Free Writing Prospectus (as defined herein), on its issue date, as of each Applicable Time, and as of each Settlement Date, or until any earlier date that the issuer notified or notifies the Sales Agent or the Forward Seller as described in Section 8(d) hereof, 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 incorporated document deemed to be a part thereof that has not been superseded or modified. The foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with written information furnished to the Company by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, specifically for use therein.
(9) This Agreement has been duly authorized, executed and delivered by the Company and this Agreement constitutes a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and by general principles of equity (the “Exceptions”). The Master Forward Confirmation will have been, as of its date, duly authorized, executed and delivered by the Company and when executed and delivered by the Forward Purchaser, such Master Forward Confirmation will constitute a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by the Exceptions.
(10) The Company and its “Subsidiaries” (as defined in Section 6(a)(13) hereof) have been duly incorporated or organized and are validly existing as corporations or organizations in good standing under the laws of the states or other jurisdictions in which they are incorporated or organized, with full power and authority (corporate and other) to own, lease and operate their properties and conduct their businesses as described in the Prospectus and, with respect to the Company, to execute and deliver, and perform the Company’s obligations under, this Agreement; the Company and its Subsidiaries are duly qualified to do business as foreign corporations or organizations in good standing in each state or other jurisdiction in which their ownership or leasing of property or conduct of business legally requires such qualification, except where the failure to be so qualified, individually or in the aggregate, would not have a Material Adverse Effect. The term “Material Adverse Effect” as used herein means any material adverse effect on the condition (financial or other), net worth, business, affairs, management, prospects, results of operations or cash flow of the Company and its Subsidiaries, taken as a whole.the
Appears in 1 contract
Samples: Underwriting Agreement (Niagara Mohawk Power Corp /Ny/)
Representations and Warranties by the Company. The Company represents and warrants to each Underwriter named in the Sales Agentapplicable Underwriting Agreement, the Forward Seller and the Forward Purchaser as of the date hereof and as of each Representation Date Pricing Effective Time (as defined below) on which a certificate is required to be delivered pursuant to Section 8(o) of this Agreement, as of that date on which any Placement Notice is given hereunder, and as of the time of each sale of any Issuance Shares or Forward Hedge Shares pursuant to this Agreement (the “Applicable Time”) and as of each Settlement Date Closing Time (as defined below), and agrees ) with respect to the Sales Agent, the Forward Seller and the Forward Purchaser, Designated Securities as follows:
(1) The each document filed by the Company satisfies all of pursuant to the requirements of the Securities 1934 Act for use of Form S-3 for the offering of the Shares contemplated hereby and the offering and sale of Shares contemplated hereby complies with the requirements of Rule 415 under the Securities Act. At the time of the initial filing of which is incorporated by reference in the Registration Statement, at the time of Prospectus or the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Securities Act Pricing Disclosure Material (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), at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Securities Act) made any offer relating to the Shares in reliance on the exemption of Rule 163 under the Securities Act and at the date hereof, the Company was and is a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act, including not having been and not being an “ineligible issuer,” as defined in Rule 405 under the Securities Act. The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 under the Securities Act, 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.” The Company has not received from the Commission any notice pursuant to Rule 401(g)(2below) under the Securities Act objecting to the use of the automatic shelf registration statement form. The Company has paid or will pay the required Commission filing fees relating to the Shares within the time required by Rule 456(b)(1)(i) under the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Securities Act (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) under the Securities Act either in a post-effective amendment to the Registration Statement or on the cover page of the Prospectus).
(2) The Original Registration Statement became effective upon filing under Rule 462(e) under the Securities Act on February 12, 2020. 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 by the Commission, and any request on the part of the Commission for additional information has been complied with.
(3) Any offer that is a written communication relating to the Shares made prior to the initial filing of the Registration Statement by the Company or any person acting on its behalf (within the meaning, for this paragraph only, of Rule 163(c) under the Securities Act) has been when so filed with the Commission in accordance with the exemption provided by Rule 163 under the Securities Act and otherwise complied with the requirements of Rule 163 under the Securities Act, including without limitation the legending requirement.
(4) The Company has delivered or made available on XXXXX to each of the Sales Agent and the Forward Seller one complete copy of the Registration Statement and a copy of each consent and certificate of experts filed as a part thereof, and conformed copies of the Registration Statement (without exhibits) and the Prospectus, as amended or supplemented, in such quantities and at such places as the Sales Agent or the Forward Seller, as applicable, has reasonably requested. The Prospectus delivered to the Sales Agent and the Forward Seller for use in connection with the offering of Shares will, at the time of such delivery, be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(5) At the respective times the Registration Statement and each amendment thereto became effective, at each deemed effective date with respect to the Sales Agent, the Forward Seller or the Forward Purchaser pursuant to Rule 430B(f)(2) under the Securities Act, as the case may be, the Registration Statement complied and will comply in all material respects with the requirements 1934 Act and the rules and regulations thereunder, and each document, if any, hereafter filed by the Company and so incorporated by reference in the Prospectus will comply when so filed with the 1934 Act and the rules and regulations thereunder;
(2) at the Effective Time the Registration Statement (and any amendments and supplements thereto, other than supplements relating only to securities other than the Designated Securities) will comply and when filed or at the Closing Time, the Prospectus (and any amendments and supplements thereto, other than supplements relating only to securities other than Designated Securities) will comply, in all material respects with the 1933 Act and the 1933 Act Regulations;
(3) each Preliminary Prospectus, if any, relating to the Designated Securities filed pursuant to Rule 424 under the 1933 Act complied when so filed in all material respects with the 1933 Act and the 1933 Act Regulations;
(4) (i) at the Effective Time of the Securities Act, and did not and Registration Statement it 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 preceding sentence does not apply to statements in or omissions from ; (ii) at the Registration Statement or any amendment thereto in reliance upon and in conformity with written information relating to the Sales AgentPricing Effective Time, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales AgentPricing Disclosure Material (as defined below), the Forward Seller or the Forward Purchaser, as applicable, expressly for inclusion in any of the aforementioned documents.
(6) Neither the Prospectus nor any amendments or supplements thereto, at the time the Prospectus or any such amendment or supplement was issued, as of the date hereof, at each Representation Date, at each Applicable Time, and at each Settlement Date, as the case may be, included or will include did not contain an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from ; and (iii) the ProspectusProspectus as of the date of the Pricing Supplement will not, and the Prospectus (as amended or supplemented, in reliance upon and in conformity with written information other than as to supplements relating only to securities other than the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, Designated Securities) as applicable, expressly for inclusion in any of the aforementioned documents.
(7) Each document incorporated by reference in the Registration Statement or the Prospectus heretofore filedClosing Time will not, when it was filed (or, if any amendment with respect to any such document was filed, when such amendment was filed), conformed in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder, and any further documents so filed and incorporated after the date of this Agreement will, when they are filed, conform in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder; no such document when it was filed (or, if an amendment with respect to any such document was filed, when such amendment was filed), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and no such document, when it is filed, will contain an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary in order to make the statements therein therein, in the light of the circumstances under which they were made, not misleading.
; except that these representations and warranties do not apply to (8) Each Issuer Free Writing Prospectus (as defined herein), on its issue date, as of each Applicable Time, and as of each Settlement Date, a) statements or until any earlier date that the issuer notified or notifies the Sales Agent or the Forward Seller as described in Section 8(d) hereof, did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained omissions in the Registration Statement or Statement, any Preliminary Prospectus, the Prospectus, including any incorporated document deemed amendments or supplements to be a part thereof that has not been superseded the foregoing, or modified. The foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing Prospectus the Pricing Disclosure Material, based upon and in conformity with written information furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, specifically any Underwriter expressly for use therein.therein and (b) any Form T-1 Statement of Eligibility and Qualification included as an exhibit to the Registration Statement;
(95) This Agreement has been duly authorized, executed and delivered by the Company and this Agreement Registration Statement constitutes a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and by general principles of equity (the an “Exceptions”). The Master Forward Confirmation will have been, as of its date, duly authorized, executed and delivered by the Company and when executed and delivered by the Forward Purchaser, such Master Forward Confirmation will constitute a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by the Exceptions.
(10) The Company and its “Subsidiariesautomatic shelf registration statement” (as defined in Section 6(a)(13) hereof) have been duly incorporated or organized and are validly existing as corporations or organizations in good standing Rule 405 under the laws 1933 Act) filed within three years of the states or other jurisdictions in which they are incorporated or organized, with full power and authority (corporate and other) to own, lease and operate their properties and conduct their businesses as described in date hereof; no notice of objection of the Prospectus and, Commission with respect to the Company, use of the Registration Statement pursuant to execute and deliver, and perform Rule 401(g)(2) under the 1933 Act has been received by the Company’s obligations under, this Agreement; and the Company is a “well-known seasoned issuer’ and its Subsidiaries are duly qualified to do business as foreign corporations or organizations in good standing is not an ineligible issuer in each state or other jurisdiction case as defined in which their ownership or leasing of property or conduct of business legally requires such qualification, except where Rule 405 at the failure “determination dates” relevant to be so qualified, individually or in the aggregate, would not have a Material Adverse Effect. The term “Material Adverse Effect” as used herein means any material adverse effect on the condition (financial or other), net worth, business, affairs, management, prospects, results of operations or cash flow offering and sale of the Designated Securities under the Registration Statement (as described in such definition); and
(6) the Company has not used any free writing prospectus other than a Permitted Free Writing Prospectus or used a Permitted Free Writing Prospectus except in compliance with Rule 433 under the 1933 Act and its Subsidiaries, taken as a wholeotherwise in compliance with the 1933 Act.
Appears in 1 contract
Representations and Warranties by the Company. The Company represents and warrants to the Sales Agent, the Forward Seller and the Forward Purchaser as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 8(o) of this Agreement, as of that date on which any Placement Notice is given hereunder, as of the time of each sale of any Issuance Shares or Forward Hedge Shares pursuant to this Agreement (the “Applicable Time”) and as of each Settlement Date (as defined below)to, and agrees with with, each of the Sales Agent, the Forward Seller and the Forward Purchaser, as followsUnderwriters that:
(1a) The Company satisfies all of the requirements of the Securities Act for use of Form S-3 for the offering of the Shares contemplated hereby and the offering and sale of Shares contemplated hereby complies with the requirements of Rule 415 under the Securities Act. At the time of the initial filing of the Registration Statement, at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Securities Act An “automatic shelf registration statement” (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), at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Securities Act) made any offer relating to the Shares in reliance on the exemption of Rule 163 under the Securities Act and at the date hereof, the Company was and is a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act, including not having been and not being an “ineligible issuer,” as defined ) on Form F-3 in Rule 405 under respect of the Securities Act(File No. The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 under the Securities Act, and the Shares, since their registration on the Registration Statement, have 333-____) (i) has been and remain eligible for registration prepared by the Company on a Rule 405 “automatic shelf registration statement.” The Company has not received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting to the use of the automatic shelf registration statement form. The Company has paid or will pay the required Commission filing fees relating to the Shares within the time required by Rule 456(b)(1)(i) under the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Securities Act (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) under the Securities Act either in a post-effective amendment to the Registration Statement or on the cover page of the Prospectus).
(2) The Original Registration Statement became effective upon filing under Rule 462(e) under the Securities Act on February 12, 2020. 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 by the Commission, and any request on the part of the Commission for additional information has been complied with.
(3) Any offer that is a written communication relating to the Shares made prior to the initial filing of the Registration Statement by the Company or any person acting on its behalf (within the meaning, for this paragraph only, of Rule 163(c) under the Securities Act) has been filed with the Commission in accordance with the exemption provided by Rule 163 under the Securities Act and otherwise complied with the requirements of Rule 163 under the Securities Act, including without limitation the legending requirement.
(4) The Company has delivered or made available on XXXXX to each of the Sales Agent and the Forward Seller one complete copy of the Registration Statement and a copy of each consent and certificate of experts filed as a part thereof, and conformed copies of the Registration Statement (without exhibits) and the Prospectus, as amended or supplemented, in such quantities and at such places as the Sales Agent or the Forward Seller, as applicable, has reasonably requested. The Prospectus delivered to the Sales Agent and the Forward Seller for use in connection with the offering of Shares will, at the time of such delivery, be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(5) At the respective times the Registration Statement and each amendment thereto became effective, at each deemed effective date with respect to the Sales Agent, the Forward Seller or the Forward Purchaser pursuant to Rule 430B(f)(2) under the Securities Act, as the case may be, the Registration Statement complied and will comply in all material respects conformity with the requirements of the Securities Act, and the rules and regulations (the “Rules and Regulations”) of the Securities and Exchange Commission (the “Commission”) thereunder, (ii) has been filed with the Commission under the Securities Act not earlier than the date that is three years prior to the Closing Date (as defined in Section 3 hereof) and (iii) upon its filing with the Commission, automatically became and is effective under the Securities Act.
(b) The Commission has not issued any order preventing or suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, Disclosure Package or the Prospectus; and no proceeding for any such purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering has been, to the Company’s knowledge, instituted or threatened by the Commission. The Commission has not issued any order directed to any document incorporated by reference in the most recent Preliminary Prospectus or the Prospectus, and, to the Company’s knowledge, no proceeding has been instituted or threatened by the Commission with respect to any document incorporated by reference in the most recent Preliminary Prospectus or the Prospectus. The Commission has not notified the Company of any objection to the use of the form of the Registration Statement.
(c) The Company has been, and continues to be, a “well-known seasoned issuer” (as defined in Rule 405 of the Rules and Regulations) and has not been, and continues not to be, an “ineligible issuer” (as defined in Rule 405 of the Rules and Regulations), in each case at all times relevant under the Securities Act in connection with the offering of the Securities.
(d) The Registration Statement conformed on the Effective Date and conforms, and any amendment to the Registration Statement filed after the date hereof will conform, in all material respects to the requirements of the Securities Act and the Rules and Regulations. The most recent Preliminary Prospectus conforms, and the Prospectus, and any amendment or supplement thereto, will conform, in all material respects to the requirements of the Securities Act and the Rules and Regulations. The documents incorporated by reference in the most recent Preliminary Prospectus or the Prospectus, when they became effective or were 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 Rules and Regulations, and any further documents so filed and incorporated by reference in the Prospectus or any further amendment or supplement thereto, when such documents become effective or are filed with the Commission, as the case may be, will conform, in all material respects to the requirements of the Securities Act or the Exchange Act, as applicable, and the Rules and Regulations.
(e) The Registration Statement did not and will not not, as of the Effective Date, contain 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. The preceding sentence does not apply ; provided, however, that no representation or warranty is made as to statements information contained in or omissions omitted from the Registration Statement or any amendment thereto in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing through the Representative by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, expressly on behalf of any Underwriter specifically for inclusion in any of the aforementioned documentstherein.
(6f) Neither the Prospectus nor any amendments or supplements thereto, at the time the Prospectus or any such amendment or supplement was issuedThe Disclosure Package did not, as of the date hereof, at each Representation Date, at each Applicable Time, and at each Settlement Date, as the case may be, included or will include an contain any untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply ; provided, however, that no representation or warranty is made as to statements information contained in or omissions omitted from the Prospectus, as amended or supplemented, Disclosure Package in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing through the Representative by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, expressly on behalf of any Underwriter specifically for inclusion in any of the aforementioned documentstherein.
(7g) Each document incorporated by reference in the Registration Statement or the Prospectus heretofore filed, when it was filed (or, if any amendment with respect to any such document was filed, when such amendment was filed), conformed in all material respects with the requirements of the Exchange Act and the rules and regulations thereunderThe Prospectus, and any further documents so filed amendment or supplement thereto, will not, as of its date and incorporated after on the date of this Agreement willClosing Date, when they are filed, conform in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder; no such document when it was filed (or, if an amendment with respect to contain any such document was filed, when such amendment was filed), contained an untrue statement of a material fact or omitted omit to state a material fact required to be stated therein or necessary in order to make the statements therein therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no representation or warranty is made as to information contained in or omitted from the Prospectus in reliance upon and in conformity with written information furnished to the Company through the Representative by or on behalf of any Underwriter specifically for inclusion therein; provided, further, that the representations and warranties in this subsection shall not apply to that part of the Registration Statement that constitutes the Statement of Eligibility (the “Form T-1”) under the U.S. Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), of the trustee (the “Trustee”).
(h) A registration statement on Form F-6 (File No. [333-[·]) in respect of the ADSs has been filed with the Commission; such registration statement, excluding exhibits, has been declared effective by the Commission; no other document with respect to such documentregistration statement has heretofore been filed with the Commission; no stop order suspending the effectiveness of such registration statement has been issued and, when it is filedto the Company’s knowledge, no proceeding for that purpose has been initiated or threatened by the Commission (the various parts of such registration statement, including all exhibits thereto, each as amended at the time such part of the registration statement became effective, being hereinafter called the “ADR Registration Statement” and the prospectus included therein being hereinafter called the “ADR Prospectus”); and at the time the ADR Registration Statement became effective the ADR Registration Statement and the ADR Prospectus conformed, and any further amendments thereto will conform, in all material respects to the requirements of the Rules and Regulations, and the ADR Registration Statement did not, as of the applicable effective date, contain an any untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(8) Each Issuer Free Writing Prospectus i) The audited consolidated financial statements (as defined herein), on its issue date, as of each Applicable Time, and as of each Settlement Date, or until any earlier date that the issuer notified or notifies the Sales Agent or the Forward Seller as described in Section 8(d) hereof, did not, does not and will not include any information that conflicted, conflicts or will conflict conjunction with the information contained notes thereto) of the Company included in the Registration Statement or present fairly, in all material respects, the financial position of the Company and its subsidiary undertakings for the periods specified. The audited consolidated annual financial statements for the financial years ended December 31, 2006, December 31, 2005 and December 31, 2004, and the results of their operations and cash flows for each of the three years ended December 31, 2006, December 31, 2005 and December 31, 2004 were prepared in accordance with International Financial Reporting Standards as adopted by the European Union.
(j) Since the respective dates as of which information is given in the Registration Statement, the Disclosure Package and the Prospectus, including any incorporated document deemed to be a part thereof that except as otherwise set forth or contemplated therein, there has not been superseded no material adverse change in the condition, financial or modified. The foregoing sentence does not apply to statements otherwise, or in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with written information furnished to the results of operations of the Company by the Sales Agent, the Forward Seller or the Forward Purchaser, and its subsidiaries considered as applicable, specifically for use thereinone enterprise.
(9k) This The Company (A) has been duly incorporated in Scotland and is validly registered under the laws of Scotland; (B) has the requisite corporate power and authority to execute and deliver this Agreement and the Pricing Agreement and had the requisite corporate power and authority to execute and deliver the ADR Deposit Agreement and, in each case, to perform its obligations hereunder and thereunder; (C) has the corporate power and authority to conduct its business through its subsidiaries as described in the Disclosure Package and the Prospectus; and (D) has duly authorized, executed and delivered this Agreement and the Pricing Agreement and this Agreement and the Pricing Agreement constitute the valid and legally binding agreement of the Company enforceable in accordance with its terms, except as rights to indemnity or contribution may be limited by applicable law and subject as to enforcement to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights generally and to general equity principles.
(l) The ADR Deposit Agreement has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and this Agreement delivery by the ADR Depositary, constitutes a valid and legally binding obligation of the Company Company, enforceable against the Company in accordance with its terms, except subject as enforceability may be limited by to enforcement to bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium reorganization and other similar laws of general applicability relating to or affecting creditors’ rights generally and to general equity principles.
(m) The Preference Shares are to be represented by general principles the ADSs and, when allotted, issued and paid for in accordance with this Agreement and the Pricing Agreement, the Preference Shares (a) will be validly issued in accordance with the requirements of equity the Companies Axx 0000 of Great Britain and will be fully paid and not subject to further call or contribution and (b) no holder thereof will be subject to any personal liability to the Company or to creditors of the Company solely by reason of being such a holder.
(n) The Preference Shares and the corresponding ADRs will conform in all material respects to the descriptions thereof contained in the Disclosure Package and the Prospectus.
(o) All consents, approvals, authorizations, orders and decrees of any court or governmental agency or body of the United States or the United Kingdom having jurisdiction over the Company required for the consummation by the Company of the transactions contemplated by this Agreement or the Pricing Agreement or to permit the Company to effect dividend payments in United States dollars on the Securities have been obtained and are in full force and effect, except as may be required by United States state securities laws (the “ExceptionsBlue Sky laws”). .
(p) The Master Forward Confirmation will have beenexecution, as delivery and performance of its datethis Agreement and the Pricing Agreement, duly authorizedthe allotment, executed issuance, authentication, sale and delivered delivery of the Securities and the compliance by the Company with the respective terms thereof, and when executed and delivered by the Forward Purchaser, such Master Forward Confirmation will constitute a valid and legally binding obligation consummation of the Company enforceable against transactions contemplated hereby and thereby, will not conflict with or result in a breach under any agreement or instrument to which the Company in accordance with its terms, except as enforceability may be limited is a party or by which the Exceptions.
(10) The Company and its “Subsidiaries” (as defined in Section 6(a)(13) hereof) have been duly incorporated or organized and are validly existing as corporations or organizations in good standing under the laws of the states or other jurisdictions in which they are incorporated or organized, with full power and authority (corporate and other) is bound that is material to own, lease and operate their properties and conduct their businesses as described in the Prospectus and, with respect to the Company, to execute and deliver, and perform the Company’s obligations under, this Agreement; the Company and its Subsidiaries are duly qualified to do business subsidiaries, taken as foreign corporations a whole, nor will such action result in any violation of (1) the provisions of the Memorandum and Articles of Association of the Company or organizations (2) any statute or any order, filing, rule or regulation of any United States, English or Scottish court or governmental agency or regulatory body having jurisdiction over the Company except for any such violation in good standing in each state or other jurisdiction in which their ownership or leasing of property or conduct of business legally requires such qualification, except where the failure to be so qualified(2) above that would not, individually or in the aggregate, would not have a Material Adverse Effect. The term “Material Adverse Effect” as used herein means any material adverse effect on the condition (condition, financial or other)otherwise, net worth, business, affairs, management, prospects, or on the results of operations or cash flow the business of the Company and its Subsidiariessubsidiaries considered as one enterprise.
(q) The Company is not, taken and after giving effect to the offer and sales of the Securities and application of the proceeds thereof as a wholedescribed in the Prospectus, will not be, required to register as an “investment company,” as defined in the Investment Company Act of 1940, as amended (the “Investment Company Act”).
(r) There is no action, suit, proceeding, inquiry or investigation before or brought by any court or governmental agency or body, domestic or foreign, now pending, or, to the knowledge of the Company, threatened against or affecting the Company or any subsidiary, which is required to be disclosed in the Registration Statement (other than as disclosed therein).
Appears in 1 contract
Representations and Warranties by the Company. The Company represents and warrants to the Sales Agent, the Forward Seller and the Forward Purchaser as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 8(o) of this Agreement, as of that date on which any Placement Notice is given hereunder, as of the time of each sale of any Issuance Shares or Forward Hedge Shares pursuant to this Agreement (the “Applicable Time”) and as of each Settlement Date (as defined below)to, and agrees with the Sales Agentwith, the Forward Seller and the Forward Purchaser, as followseach Underwriter that:
(1a) The Company satisfies all of meets the requirements of the Securities Act for use of Form S-3 under the Securities Act of 1933, as amended (the "Act"), and has filed with the Securities and Exchange Commission (the "Commission") a registration statement on such Form, including a prospectus, for the registration under the Act of the Debt Securities, which registration statement has become effective. Such registration statement and prospectus may have been amended or supplemented from time to time prior to the date of this Agreement (which date is set forth in Schedule I hereto). Any such amendment or supplement was filed with the Commission and any such amendment has become effective. Each prospectus used before the registration statement became effective, and any prospectus that omitted the offering terms that was used after such effectiveness and prior to the execution and delivery of this Agreement, is herein called a "preliminary prospectus". The Company will file with the Commission a prospectus supplement (the "Prospectus Supplement") relating to the Debt Securities pursuant to Rule 424 and/or Rule 434 under the Act. Copies of such registration statement and prospectus, any such amendment or supplement and all documents incorporated by reference therein which were filed with the Commission on or prior to the date of this Agreement have been delivered to you and copies of the Prospectus Supplement will be delivered to you promptly after it is filed with the Commission. Such registration statement, as amended prior to the date of this Agreement, and such prospectus, as amended and supplemented prior to the date of this Agreement and as supplemented by the Prospectus Supplement, are hereinafter called the "Registration Statement" and the "Prospectus", respectively. Any reference herein to the Registration Statement or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 which were filed under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), on or before the date of this Agreement and, if the Company files any document pursuant to the Exchange Act after the date of this Agreement and prior to the termination of the offering of the Shares contemplated hereby Debt Securities by the Underwriters, which documents are deemed to be incorporated by reference into the Prospectus, the term "Prospectus" shall refer also to said prospectus as supplemented by the documents so filed from and after the offering and sale of Shares contemplated hereby complies time said documents are filed with the requirements of Rule 415 under the Securities ActCommission. At the time There are no contracts or documents of the initial filing Company or any of its subsidiaries that are required to be filed as exhibits to the Registration Statement or any documents incorporated by reference therein by the Act, the Exchange Act or the rules and regulations thereunder which have not been so filed.
(b) No order preventing or suspending the use of the Prospectus or the Registration Statement has been issued by the Commission and the Registration Statement, at the time date of this Agreement, complied in all material respects with the requirements of the most recent amendment thereto for Act, the purposes Trust Indenture Act of complying with Section 10(a)(3) 1939, as amended (the "Trust Indenture Act"), and the respective rules and regulations of the Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant Commission thereunder and did not contain any untrue statement of a material fact or omit any material fact required to Section 13 be stated therein or 15(d) of necessary in order to make the Exchange Act or form of prospectus)statements therein not misleading; and, at the time the Prospectus Supplement is filed with the Commission and at the Closing Date (as hereinafter defined), the Prospectus will comply in all material respects with the Act and the rules and regulations of the Commission thereunder and will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided that the Company makes no representations or any person acting on its behalf warranties as to (within A) that part of the meaning, for this clause only, Registration Statement which shall constitute the Statement of Rule 163(cEligibility (Form T-1) under the Securities Act) made any offer relating to the Shares in reliance on the exemption of Rule 163 under the Securities Trust Indenture Act and at the date hereof, the Company was and is a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act, including not having been and not being an “ineligible issuer,” as defined in Rule 405 under the Securities Act. The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 under the Securities Act, 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.” The Company has not received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting to the use of the automatic shelf registration statement form. The Company has paid Trustee or will pay (B) the required Commission filing fees relating to the Shares within the time required by Rule 456(b)(1)(i) under the Securities Act without regard to the proviso therein and otherwise information contained in accordance with Rules 456(b) and 457(r) under the Securities Act (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) under the Securities Act either in a post-effective amendment to or omitted from the Registration Statement or the Prospectus in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of any Underwriter through the cover page of Representatives specifically for use in the Prospectus).
(2) The Original Registration Statement became effective upon filing under Rule 462(e) under or Prospectus. Each preliminary prospectus and the Securities Act on February 12, 2020. No stop order suspending the effectiveness prospectus filed as part of the Registration Statement has been issued as originally filed or as part of any amendment thereto, or filed pursuant to Rule 424 of the Act, complied when so filed in all material respects with the rules 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 by the CommissionAct, and any request on the part of the Commission for additional information has been complied with.
(3) Any offer that is a written communication relating to the Shares made prior to the initial filing of the Registration Statement by the Company or any person acting on its behalf (within the meaning, for this paragraph only, of Rule 163(c) under the Securities Act) has been filed with the Commission in accordance with the exemption provided by Rule 163 under the Securities Act and otherwise complied with the requirements of Rule 163 under the Securities Act, including without limitation the legending requirement.
(4) The Company has delivered or made available on XXXXX to each of the Sales Agent preliminary prospectus and the Forward Seller one complete copy of the Registration Statement and a copy of each consent and certificate of experts filed as a part thereof, and conformed copies of the Registration Statement (without exhibits) and the Prospectus, as amended or supplemented, in such quantities and at such places as the Sales Agent or the Forward Seller, as applicable, has reasonably requested. The Prospectus delivered to the Sales Agent and the Forward Seller Underwriters for use in connection with the this offering of Shares will, at the time of such delivery, be was identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(5c) At The documents incorporated by reference in the respective times Prospectus, when they were filed with the Registration Statement and each amendment thereto became effectiveCommission, at each deemed effective date with respect to the Sales Agent, the Forward Seller or the Forward Purchaser pursuant to Rule 430B(f)(2) under the Securities Act, as the case may be, the Registration Statement complied and will comply conformed in all material respects with to the requirements of the Securities Exchange Act and the rules and regulations of the Commission thereunder, and any documents so filed and incorporated by reference subsequent to the date of this Agreement will, when they are filed with the Commission, conform in all material respects to the requirements of the Exchange Act, and did not the rules and regulations of the Commission thereunder; and none of such documents include or will not contain an include any untrue statement of a material fact or omit or will omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading. The preceding sentence does not apply to statements in or omissions from the Registration Statement or any amendment thereto in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, expressly for inclusion in any of the aforementioned documents.
(6) Neither the Prospectus nor any amendments or supplements thereto, at the time the Prospectus or any such amendment or supplement was issued, as of the date hereof, at each Representation Date, at each Applicable Time, and at each Settlement Date, as the case may be, included or will include an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, made not misleading. The preceding sentence does not apply to statements in or omissions from the Prospectus, as amended or supplemented, in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, expressly for inclusion in any of the aforementioned documents.
(7d) Each document Deloitte & Touche LLP, which audited the consolidated financial statements and the related financial statement schedule as of and for the year ended December 31, 2002, and Xxxxxx Xxxxxxxx LLP, which audited the consolidated financial statements and the related financial statement schedule as of and for the years ended December 31, 2001 and December 31, 2000, each of which are incorporated by reference in the Registration Statement and Prospectus from the Company's Annual Report on Form 10-K for the year ended December 31, 2002, are independent auditors as required by the Act and the rules and regulations of the Commission thereunder.
(e) The financial statements of the Company and its consolidated subsidiaries filed as a part of or incorporated by reference in the Registration Statement or Prospectus fairly present the financial position of the Company and its consolidated subsidiaries as of the dates indicated and the results of their operations and changes in financial position for the periods specified, and have been prepared in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods involved, except as disclosed in the Prospectus heretofore filedSupplement.
(f) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Minnesota with due corporate authority to carry on the business in which it is engaged and to own and operate the properties used by it in such business, when it was filed (oras described in the Prospectus; the Company is qualified to do business as a foreign corporation and is in good standing under the laws of the States of North Dakota and South Dakota; and the Company is not required by the nature of its business to be licensed or qualified as a foreign corporation in any other state or jurisdiction; and, if any amendment with respect to any such document was filedexcept as set forth in the Prospectus Supplement, when such amendment was filed), conformed in the Company has all material respects with licenses and approvals required at the requirements date hereof to conduct its business.
(g) The Company has no subsidiaries which would be deemed significant subsidiaries under Regulation S-X.
(h) Neither the Company nor any of the Exchange Act and the rules and regulations thereunder, and any further documents so filed and incorporated after its subsidiaries has sustained since the date of this Agreement willthe latest audited financial statements included or incorporated by reference in the Prospectus any material loss or interference with its business from fire, when they are filedexplosion, conform flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in all material respects with the requirements of Prospectus Supplement; and, since the Exchange Act and the rules and regulations thereunder; no such document when it was filed (or, if an amendment with respect to any such document was filed, when such amendment was filed), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and no such document, when it is filed, will contain an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(8) Each Issuer Free Writing Prospectus (as defined herein), on its issue date, respective dates as of each Applicable Time, and as of each Settlement Date, or until any earlier date that the issuer notified or notifies the Sales Agent or the Forward Seller as described in Section 8(d) hereof, did not, does not and will not include any which information that conflicted, conflicts or will conflict with the information contained is given in the Registration Statement and the Prospectus Supplement, neither the Company nor any of its subsidiaries has incurred any liabilities or obligations, direct or contingent, or entered into any transactions, not in the Prospectusordinary course of business, including any incorporated document deemed which are material to be a part thereof that the Company and its subsidiaries, and there has not been superseded any material change in the capital stock or modified. The foregoing sentence does not apply to statements long-term debt of the Company or any of its subsidiaries or any material adverse change, or any development involving a prospective material adverse change, in or omissions from affecting the general affairs, management, financial position, stockholders' equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Prospectus Supplement.
(i) Neither the execution and delivery of this Agreement and the Indenture, the issuance and delivery of the Debt Securities, the consummation of the transactions herein contemplated, the fulfillment of the terms hereof, nor compliance with the terms and provisions of this Agreement, the Debt Securities and the Indenture will conflict with, or result in the breach of, any Issuer Free Writing Prospectus based upon and of the terms, provisions or conditions of the Articles of Incorporation, as amended, or by-laws of the Company, or of any contract, agreement or instrument to which the Company is a party or in conformity with written information furnished which the Company has a beneficial interest or by which the Company is bound or of any order, rule or regulation applicable to the Company by of any court or of any federal or state regulatory body or administrative agency or other governmental body having jurisdiction over the Sales Agent, the Forward Seller Company or the Forward Purchaser, as applicable, specifically for use thereinover its properties.
(9j) The Debt Securities have been duly authorized for issuance and sale pursuant to this Agreement and, when executed and authenticated in accordance with the Indenture and delivered and paid for as provided herein, will be duly issued and will constitute valid and binding obligations of the Company enforceable in accordance with their terms, except as limited by bankruptcy, insolvency and other laws affecting enforcement of creditors' rights, and will be entitled to the benefits of the Indenture which will be substantially in the form heretofore delivered to you.
(k) The Indenture has been duly and validly authorized by the Company and, when duly executed and delivered by the Company, assuming due authorization, execution and delivery thereof by the Trustee, will constitute a valid and binding obligation of the Company enforceable in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency or other laws affecting enforcement of creditors' rights.
(l) This Agreement has been duly authorized, executed and delivered by the Company Company.
(m) The Minnesota Public Utilities Commission has issued its order approving the Company's capital structure which order authorizes the issuance of the Debt Securities, and no consent, approval, authorization or order of, or filing or registration with, any court having jurisdiction over the Company, and no other approval of any regulatory public body, state or federal, is, or will be at the Closing Date (as hereinafter defined), necessary in connection with the issuance and sale of the Debt Securities pursuant to this Agreement constitutes or the execution, delivery and performance of this Agreement and the Indenture other than approvals that may be required under state securities laws.
(n) The Company has good and valid title to all real and fixed property and leasehold rights and personal property which are owned by it, subject only to the Company's first mortgage indenture; taxes and assessments not yet delinquent; as to parts of the Company's property, certain easements, conditions, restrictions, leases, and similar encumbrances which do not affect the Company's use of such property in the usual course of its business, and certain minor defects in titles which are not material, and defects in titles to certain properties which are not essential to the Company's business; and mechanics' lien claims being contested or not of record or for the satisfaction or discharge of which adequate provision has been made by the Company; and any real property and buildings held under lease by the Company are held by it under valid, subsisting and enforceable leases with such exceptions as are not material and do not interfere with the use made and proposed to be made of such property and buildings by the Company.
(o) Other than as set forth or contemplated in the Prospectus as of the date hereof, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a valid and legally binding obligation party or of which any property of the Company enforceable against or any of its subsidiaries is the subject which, if determined adversely to the Company in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and by general principles of equity (the “Exceptions”). The Master Forward Confirmation will have been, as any of its datesubsidiaries, duly authorized, executed and delivered by the Company and when executed and delivered by the Forward Purchaser, such Master Forward Confirmation will constitute a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by the Exceptions.
(10) The Company and its “Subsidiaries” (as defined in Section 6(a)(13) hereof) have been duly incorporated would individually or organized and are validly existing as corporations or organizations in good standing under the laws of the states or other jurisdictions in which they are incorporated or organized, with full power and authority (corporate and other) to own, lease and operate their properties and conduct their businesses as described in the Prospectus andaggregate have a material adverse effect on the business, with respect to the Companyconsolidated financial position, to execute and deliver, and perform the Company’s obligations under, this Agreement; stockholders' equity or results of operations of the Company and its Subsidiaries subsidiaries; and, to the best of the Company's knowledge, no such proceedings are duly qualified threatened or contemplated by governmental authorities or threatened by others.
(p) The Company is not an "investment company" or an entity "controlled" by an "investment company," as such terms are defined in the Investment Company Act of 1940, as amended.
(q) Except as set forth in the Prospectus Supplement, the Company and its subsidiaries (A) are in compliance with any and all applicable federal, state and local laws and regulations relating to do business as foreign corporations the protection of human health and safety, the environment or organizations in good standing in each state hazardous or toxic substances or wastes, pollutants or contaminants ("Environmental Laws"), (B) have received all permits, licenses or other jurisdiction approvals required of them under applicable Environmental Laws to conduct their respective business and (C) are in which their ownership compliance with all terms and conditions of any such permits, licenses or leasing of property or conduct of business legally requires such qualificationapprovals, except where the such noncompliance with Environmental Laws, failure to be so qualifiedreceive required permits, individually licenses or other approvals or failure to comply with the terms and conditions of such permits, licenses or approvals would not, singly or in the aggregate, would not have a Material Adverse Effect. The term “Material Adverse Effect” as used herein means any material adverse effect on the condition (financial or other), net worth, business, affairsconsolidated financial position, management, prospects, stockholders' equity or results of operations or cash flow of the Company and its Subsidiariessubsidiaries, taken as a whole.
Appears in 1 contract
Representations and Warranties by the Company. The Each of the Company Parties, jointly and severally, represents and warrants to each Underwriter at the Sales Agentdate hereof, the Forward Seller Applicable Time and the Forward Purchaser as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 8(o) of this Agreement, as of that date on which any Placement Notice is given hereunder, as of the time of each sale of any Issuance Shares or Forward Hedge Shares pursuant to this Agreement (the “Applicable Closing Time”) and as of each Settlement Date (as defined below), and agrees with the Sales Agent, the Forward Seller and the Forward Purchasereach Underwriter, as follows:
(1i) Compliance of the Registration Statement, the Prospectus and Incorporated Documents. The Company satisfies all of meets the requirements of the Securities Act for use of Form S-3 for the offering of the Shares contemplated hereby and the offering and sale of Shares contemplated hereby complies with the requirements of Rule 415 under the Securities Act. At the time of the initial filing of the Registration Statement, at the time of the most recent amendment thereto 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), at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Securities Act) made any offer relating to the Shares in reliance on the exemption of Rule 163 under the Securities Act and at the date hereof, the Company was and is a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act, including not having been and not being an “ineligible issuer,” as defined in Rule 405 under the Securities Act. The Registration Statement is an “automatic shelf registration statement,” as defined in under Rule 405 under that has been filed with the Commission not earlier than three years prior to the date hereof and the Securities Act, and the Shares, since their registration on the Registration Statement, have been and remain eligible for registration by the Company on a Rule 405 “such automatic shelf registration statement.” The Company . Each of the Registration Statement and any post-effective amendment thereto has not received from become effective under the Securities Act and no notice of objection of the Commission to the use of such registration statement or any notice post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act objecting to has been received by the use of the automatic shelf registration statement form. The Company has paid or will pay the required Commission filing fees relating to the Shares within the time required by Rule 456(b)(1)(i) under the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Securities Act (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) under the Securities Act either in a post-effective amendment to the Registration Statement or on the cover page of the Prospectus).
(2) The Original Registration Statement became effective upon filing under Rule 462(e) under the Securities Act on February 12, 2020Company. No stop order suspending the effectiveness of the Registration Statement has been issued by the Commission and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering has been initiated or threatened by the Commission. Additionally, no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued under the Securities Act Act, no order preventing or suspending the use of any preliminary prospectus or the Prospectus or any amendment or supplement thereto has been issued and no proceedings for that purpose any of those purposes have been instituted or are pending or, to the knowledge of the CompanyCompany Parties’ knowledge, are contemplated by the Commission, and any contemplated. The Company has complied with each request on the part of (if any) from the Commission for additional information information. In addition, the Base Indenture has been complied with.
(3) Any offer that is a written communication relating to been, and the Shares made prior to Supplemental Indenture will be at the initial filing of the Registration Statement by the Company or any person acting on its behalf (within the meaningClosing Time, for this paragraph only, of Rule 163(c) duly qualified under the Securities Act) has been filed with the Commission in accordance with the exemption provided by Rule 163 under the Securities Trust Indenture Act and otherwise complied with the requirements of Rule 163 under the Securities Act1939, including without limitation the legending requirement.
(4) The Company has delivered or made available on XXXXX to each of the Sales Agent as amended, and the Forward Seller one complete copy rules and regulations promulgated thereunder (the “Trust Indenture Act”). Each of the Registration Statement and a copy any post-effective amendment thereto, at the time of its effectiveness and at each consent deemed effective date with respect to the Underwriters pursuant to Rule 430B(f)(2) under the Securities Act Regulations, complied in all material respects with the requirements of the Securities Act and certificate the Securities Act Regulations and the Trust Indenture Act. Each preliminary prospectus, the Prospectus and any amendment or supplement thereto, at the time each was filed with the Commission, complied in all material respects with the requirements of experts filed as a part thereofthe Securities Act and the Securities Act Regulations and the Trust Indenture Act, and conformed copies of the Registration Statement (without exhibits) each preliminary prospectus and the Prospectus, as amended or supplemented, in such quantities and at such places as the Sales Agent or the Forward Seller, as applicable, has reasonably requested. The Prospectus delivered to the Sales Agent and the Forward Seller Underwriters for use in connection with the this offering of Shares will, at the time of such delivery, be was identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(5) At the respective times the Registration Statement and each amendment thereto became effective, at each T. The documents incorporated or deemed effective date with respect to the Sales Agent, the Forward Seller or the Forward Purchaser pursuant to Rule 430B(f)(2) under the Securities Act, as the case may be, the Registration Statement complied and will comply in all material respects with the requirements of the Securities Act, and did not 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. The preceding sentence does not apply to statements in or omissions from the Registration Statement or any amendment thereto in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, expressly for inclusion in any of the aforementioned documents.
(6) Neither the Prospectus nor any amendments or supplements thereto, at the time the Prospectus or any such amendment or supplement was issued, as of the date hereof, at each Representation Date, at each Applicable Time, and at each Settlement Date, as the case may be, included or will include an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from the Prospectus, as amended or supplemented, in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, expressly for inclusion in any of the aforementioned documents.
(7) Each document incorporated by reference in the Registration Statement Statement, the General Disclosure Package and the Prospectus, at the time they were or hereafter are filed with the Prospectus heretofore filedCommission, when it was filed (or, if any amendment with respect to any such document was filed, when such amendment was filed), conformed complied or will comply in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder, and any further documents so filed and incorporated after the date of this Agreement will, when they are filed, conform in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder; no such document when it was filed (or, if an amendment with respect to any such document was filed, when such amendment was filed), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and no such document, when it is filed, will contain an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleadingRegulations.
(8) Each Issuer Free Writing Prospectus (as defined herein), on its issue date, as of each Applicable Time, and as of each Settlement Date, or until any earlier date that the issuer notified or notifies the Sales Agent or the Forward Seller as described in Section 8(d) hereof, 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 incorporated document deemed to be a part thereof that has not been superseded or modified. The foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with written information furnished to the Company by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, specifically for use therein.
(9) This Agreement has been duly authorized, executed and delivered by the Company and this Agreement constitutes a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and by general principles of equity (the “Exceptions”). The Master Forward Confirmation will have been, as of its date, duly authorized, executed and delivered by the Company and when executed and delivered by the Forward Purchaser, such Master Forward Confirmation will constitute a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by the Exceptions.
(10) The Company and its “Subsidiaries” (as defined in Section 6(a)(13) hereof) have been duly incorporated or organized and are validly existing as corporations or organizations in good standing under the laws of the states or other jurisdictions in which they are incorporated or organized, with full power and authority (corporate and other) to own, lease and operate their properties and conduct their businesses as described in the Prospectus and, with respect to the Company, to execute and deliver, and perform the Company’s obligations under, this Agreement; the Company and its Subsidiaries are duly qualified to do business as foreign corporations or organizations in good standing in each state or other jurisdiction in which their ownership or leasing of property or conduct of business legally requires such qualification, except where the failure to be so qualified, individually or in the aggregate, would not have a Material Adverse Effect. The term “Material Adverse Effect” as used herein means any material adverse effect on the condition (financial or other), net worth, business, affairs, management, prospects, results of operations or cash flow of the Company and its Subsidiaries, taken as a whole.
Appears in 1 contract
Representations and Warranties by the Company. The Company represents and warrants to the Sales Agent, the Forward Seller and the Forward Purchaser as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 8(o) of this Agreement, as of that date on which any Placement Notice is given hereunder, as of the time of each sale of any Issuance Shares or Forward Hedge Shares pursuant to this Agreement (the “Applicable Time”) and as of each Settlement Date (as defined below)to, and agrees with the Sales Agentwith, the Forward Seller and the Forward Purchaser, as followseach Underwriter that:
(1a) The Company satisfies all of meets the requirements of the Securities Act for use of Form S-3 under the Securities Act of 1933, as amended (the "Act") and has filed with the Securities and Exchange Commission (the "Commission") a registration statement on such Form, including a prospectus, for the registration under the Act of the Debt Securities, which registration statement has become effective. Such registration statement and prospectus may have been amended or supplemented from time to time prior to the date of this Agreement (which date is set forth in Schedule I hereto). Any such amendment or supplement was filed with the Commission and any such amendment has become effective. The Company will file with the Commission a prospectus supplement (the "Prospectus Supplement") relating to the Debt Securities pursuant to Rule 424 and/or Rule 434 under the Act. Copies of such registration statement and prospectus, any such amendment or supplement and all documents incorporated by reference therein which were filed with the Commission on or prior to the date of this Agreement have been delivered to you and copies of the Prospectus Supplement will be delivered to you promptly after it is filed with the Commission. Such registration statement, as amended prior to the date of this Agreement, and such prospectus, as amended and supplemented prior to the date of this Agreement and as supplemented by the Prospectus Supplement, are hereinafter called the "Registration Statement" and the "Prospectus", respectively. Any reference herein to the Registration Statement or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 which were filed under the Securities Exchange Act of 1934, as amended (the "Exchange Act") on or before the date of this Agreement and, if the Company files any document pursuant to the Exchange Act after the date of this Agreement and prior to the termination of the offering of the Shares contemplated hereby Debt Securities by the Underwriters, which documents are deemed to be incorporated by reference into the Prospectus, the term "Prospectus" shall refer also to said prospectus as supplemented by the documents so filed from and after the offering and sale of Shares contemplated hereby complies time said documents are filed with the requirements of Rule 415 under the Securities ActCommission. At the time There are no contracts or documents of the initial filing Company or any of its subsidiaries that are required to be filed as exhibits to the Registration Statement or any documents incorporated by reference therein by the Act, the Exchange Act or the rules and regulations thereunder which have not been so filed.
(b) No order preventing or suspending the use of the Prospectus or the Registration Statement has been issued by the Commission and the Registration Statement, at the time date of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective amendmentthis Agreement, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Securities Act) made any offer relating to the Shares in reliance on the exemption of Rule 163 under the Securities Act and at the date hereof, the Company was and is a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act, including not having been and not being an “ineligible issuer,” as defined in Rule 405 under the Securities Act. The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 under the Securities Act, 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.” The Company has not received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting to the use of the automatic shelf registration statement form. The Company has paid or will pay the required Commission filing fees relating to the Shares within the time required by Rule 456(b)(1)(i) under the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Securities Act (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) under the Securities Act either in a post-effective amendment to the Registration Statement or on the cover page of the Prospectus).
(2) The Original Registration Statement became effective upon filing under Rule 462(e) under the Securities Act on February 12, 2020. 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 by the Commission, and any request on the part of the Commission for additional information has been complied with.
(3) Any offer that is a written communication relating to the Shares made prior to the initial filing of the Registration Statement by the Company or any person acting on its behalf (within the meaning, for this paragraph only, of Rule 163(c) under the Securities Act) has been filed with the Commission in accordance with the exemption provided by Rule 163 under the Securities Act and otherwise complied with the requirements of Rule 163 under the Securities Act, including without limitation the legending requirement.
(4) The Company has delivered or made available on XXXXX to each of the Sales Agent and the Forward Seller one complete copy of the Registration Statement and a copy of each consent and certificate of experts filed as a part thereof, and conformed copies of the Registration Statement (without exhibits) and the Prospectus, as amended or supplemented, in such quantities and at such places as the Sales Agent or the Forward Seller, as applicable, has reasonably requested. The Prospectus delivered to the Sales Agent and the Forward Seller for use in connection with the offering of Shares will, at the time of such delivery, be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(5) At the respective times the Registration Statement and each amendment thereto became effective, at each deemed effective date with respect to the Sales Agent, the Forward Seller or the Forward Purchaser pursuant to Rule 430B(f)(2) under the Securities Act, as the case may be, the Registration Statement complied and will comply in all material respects with the requirements of the Securities Act, the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act") and the respective rules and regulations of the Commission thereunder and did not and will not contain 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. The preceding sentence does not apply to statements in or omissions from the Registration Statement or any amendment thereto in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, expressly for inclusion in any of the aforementioned documents.
(6) Neither the Prospectus nor any amendments or supplements thereto, at the time the Prospectus or any such amendment or supplement was issued, as of the date hereof, at each Representation Date, at each Applicable Time, and at each Settlement Date, as the case may be, included or will include an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from the Prospectus, as amended or supplemented, in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, expressly for inclusion in any of the aforementioned documents.
(7) Each document incorporated by reference in the Registration Statement or the Prospectus heretofore filed, when it was filed (or, if any amendment with respect to any such document was filed, when such amendment was filed), conformed in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder, and any further documents so filed and incorporated after the date of this Agreement will, when they are filed, conform in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder; no such document when it was filed (or, if an amendment with respect to any such document was filed, when such amendment was filed), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and, at the time the Prospectus Supplement is filed with the Commission and no such documentat the Closing Date (as hereinafter defined), when it is filed, the Prospectus will comply in all material respects with the Act and the rules and regulations of the Commission thereunder and will not contain an any untrue statement of a material fact or will omit to state a any material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(8) Each Issuer Free Writing Prospectus (as defined herein), on its issue date, as of each Applicable Time, and as of each Settlement Date, or until any earlier date ; provided that the issuer notified Company makes no representations or notifies warranties as to (A) that part of the Sales Agent Registration Statement which shall constitute the Statements of Eligibility (Forms T-1) under the Trust Indenture Act of the Trustee or the Forward Seller as described in Section 8(d(B) hereof, did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in or omitted from the Registration Statement or the Prospectus in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of any Underwriter through the Representatives specifically for use in the Registration Statement or Prospectus.
(c) The documents incorporated by reference in the Prospectus, including when they were filed with the Commission, conformed in all material respects to the requirements of the Exchange Act and the rules and regulations of the Commission thereunder, and any documents so filed and incorporated document deemed by reference subsequent to the date of this Agreement will, when they are filed with the Commission, conform in all material respects to the requirements of the Exchange Act, and the rules and regulations of the Commission thereunder; and none of such documents include or will include any untrue statement of a material fact or omit or will omit to state any 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.
(d) Arthur Andersen LLP, which audited certain of the financial statementx xxxxrxxxxxxx by reference in the Registration Statement, is an independent public accountant as required by the Act and the rules and regulations of the Commission thereunder.
(e) The financial statements of the Company and its consolidated subsidiaries filed as a part thereof that of or incorporated by reference in the Registration Statement or Prospectus fairly present the financial position of the Company and its consolidated subsidiaries as of the dates indicated and the results of their operations and changes in financial position for the periods specified, and have been prepared in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods involved, except as disclosed in the Prospectus Supplement.
(f) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Minnesota with due corporate authority to carry on the business in which it is engaged and to own and operate the properties used by it in such business, as described in the Prospectus; the Company is qualified to do business as a foreign corporation and is in good standing under the laws of the States of North Dakota, South Dakota and Colorado; and the Company is not required by the nature of its business to be licensed or qualified as a foreign corporation in any other state or jurisdiction; and, except as set forth in the Prospectus Supplement, the Company has all material licenses and approvals required at the date hereof to conduct its business.
(g) Each subsidiary of the Company named in Exhibit 21.01 to the Company's most recent Annual Report on Form 10-K ("Significant Subsidiary") has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation and is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which it owns or leases substantial properties or in which the conduct of its business requires such qualification; all of the issued and outstanding capital stock of each such subsidiary has been duly authorized and validly issued and is fully paid and non-assessable; and the capital stock of each such subsidiary owned by the Company, directly or through subsidiaries, is owned free and clear of any pledge, lien, encumbrance, claim or equity.
(h) Neither the Company nor any of its subsidiaries has sustained since the date of the latest audited financial statements included or incorporated by reference in the Prospectus any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus Supplement; and, since the respective dates as of which information is given in the Registration Statement and the Prospectus Supplement, neither the Company nor any of its subsidiaries has incurred any liabilities or obligations, direct or contingent, or entered into any transactions, not in the ordinary course of business, which are material to the Company and its subsidiaries, and there has not been superseded any material change in the capital stock or modified. The foregoing sentence does not apply to statements long-term debt of the Company or any of its subsidiaries or any material adverse change, or any development involving a prospective material adverse change, in or omissions from affecting the general affairs, management, financial position, stockholders' equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Prospectus Supplement.
(i) Neither the execution and delivery of this Agreement and the Indenture, the issuance and delivery of the Debt Securities, the consummation of the transactions herein contemplated, the fulfillment of the terms hereof, nor compliance with the terms and provisions of this Agreement, the Debt Securities and the Indenture will conflict with, or result in the breach of, any Issuer Free Writing Prospectus based upon and of the terms, provisions or conditions of the Restated Articles of Incorporation, as amended, or by-laws of the Company, or of any contract, agreement or instrument to which the Company is a party or in conformity with written information furnished which the Company has a beneficial interest or by which the Company is bound or of any order, rule or regulation applicable to the Company by of any court or of any federal or state regulatory body or administrative agency or other governmental body having jurisdiction over the Sales Agent, the Forward Seller Company or the Forward Purchaser, as applicable, specifically for use thereinover its properties.
(9j) This The Debt Securities have been duly authorized for issuance and sale pursuant to this Agreement and, when executed and authenticated in accordance with the Indenture and delivered and paid for as provided herein, will be duly issued and will constitute valid and binding obligations of the Company enforceable in accordance with their terms, except as limited by bankruptcy, insolvency and other laws affecting enforcement of creditors' rights, and will be entitled to the benefits of the Indenture which will be substantially in the form heretofore delivered to you.
(k) The Indenture has been duly authorizedand validly authorized by the Company and, when duly executed and delivered by the Company Company, assuming due authorization, execution and this Agreement constitutes delivery thereof by the Trustee, will constitute a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability enforcement thereof may be limited by bankruptcy, insolvencyinsolvency or other laws affecting enforcement of creditors' rights.
(l) The Securities and Exchange Commission has issued a financing order under the Public Utility Holding Company Act of 1935, fraudulent conveyancewhich order authorizes the issuance of the Debt Securities, reorganizationand no other approval of any regulatory public body, moratorium state or federal, is, or will be at the Closing Date (as hereinafter defined), necessary in connection with the issuance and sale of the Debt Securities pursuant to this Agreement, other than approvals that may be required under state securities laws.
(m) The Company has good and valid title to all real and fixed property and leasehold rights which are owned by it, subject only to taxes and assessments not yet delinquent; as to parts of the Company's property, certain easements, conditions, restrictions, leases, and similar laws relating to or affecting creditors’ rights generally and by general principles encumbrances which do not affect the Company's use of equity (such property in the “Exceptions”). The Master Forward Confirmation will have been, as usual course of its datebusiness, duly authorizedand certain minor defects in titles which are not material, executed and delivered defects in titles to certain properties which are not essential to the Company's business; and mechanics' lien claims being contested or not of record or for the satisfaction or discharge of which adequate provision has been made by the Company; and any real property and buildings held under lease by the Company is held by it under valid, subsisting and when executed enforceable leases with such exceptions as are not material and delivered do not interfere with the use made and proposed to be made of such property and buildings by the Forward PurchaserCompany.
(n) Other than as set forth or contemplated in the Prospectus as of the date hereof, such Master Forward Confirmation will constitute there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a valid and legally binding obligation party or of which any property of the Company enforceable against or any of its subsidiaries is the subject which, if determined adversely to the Company in accordance with or any of its termssubsidiaries, except as enforceability may be limited by the Exceptions.
(10) The Company and its “Subsidiaries” (as defined in Section 6(a)(13) hereof) have been duly incorporated would individually or organized and are validly existing as corporations or organizations in good standing under the laws of the states or other jurisdictions in which they are incorporated or organized, with full power and authority (corporate and other) to own, lease and operate their properties and conduct their businesses as described in the Prospectus andaggregate have a material adverse effect on the consolidated financial position, with respect to the Company, to execute and deliver, and perform the Company’s obligations under, this Agreement; stockholders' equity or results of operations of the Company and its Subsidiaries subsidiaries; and, to the best of the Company's knowledge, no such proceedings are duly qualified threatened or contemplated by governmental authorities or threatened by others.
(o) The Company is not an "investment company" or an entity "controlled" by an "investment company," as such terms are defined in the Investment Company Act of 1940, as amended.
(p) Except as set forth in the Prospectus Supplement, the Company and its subsidiaries (A) are in compliance with any and all applicable federal, state and local laws and regulations relating to do business as foreign corporations the protection of human health and safety, the environment or organizations in good standing in each state hazardous or toxic substances or wastes, pollutants or contaminants ("Environmental Laws"), (B) have received all permits, licenses or other jurisdiction approvals required of them under applicable Environmental Laws to conduct its respective business and (C) are in which their ownership compliance with all terms and conditions of any such permits, licenses or leasing of property or conduct of business legally requires such qualificationapprovals, except where the such noncompliance with Environmental Laws, failure to be so qualifiedreceive required permits, individually licenses or other approvals or failure to comply with the terms and conditions of such permits, licenses or approvals would not, singly or in the aggregate, would not have a Material Adverse Effect. The term “Material Adverse Effect” as used herein means any material adverse effect on the condition (financial or other), net worth, business, affairs, management, prospects, results of operations or cash flow of the Company and its Subsidiariessubsidiaries, taken as a whole.
Appears in 1 contract
Representations and Warranties by the Company. The Company represents and warrants Co-Issuer, jointly and severally, represent and warrant to the Sales AgentDealer Manager, the Forward Seller and the Forward Purchaser as of the date hereof hereof, as of each date that any Tender Documents are published, sent, given or otherwise distributed (each a “Mailing Date”), and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 8(o) of this Agreement, as of that the date on which any Placement Notice is given hereunder, as of the time of each sale of any Issuance Shares or Forward Hedge Shares Notes are purchased by the Company pursuant to the Tender Offer (each such date, a “Closing Date”) that:
(a) Each of the Company and Co-Issuer has been duly formed or incorporated and is validly existing as a limited partnership or corporation and in good standing under the laws of the jurisdiction of its formation or incorporation.
(b) Each of the Company and Co-Issuer has all necessary corporate or limited partnership power and authority to execute and deliver this Agreement, and to perform all its obligations hereunder and to make and consummate the Tender Offer in accordance with its terms.
(c) Each of the Company and the Co-Issuer has taken all necessary action to authorize the making and consummation of the Tender Offer and the execution, delivery and performance by the Company of this Agreement; and this Agreement has been duly executed and delivered by the Company and Co-Issuer, and, assuming due authorization, execution and delivery by the Dealer Manager, this Agreement constitutes a valid and legally binding agreement of the Company and Co-Issuer, enforceable against the Company and Co-Issuer in accordance with its terms, except to the extent such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting the rights and remedies of creditors or by general equitable principles.
(d) As of the Consent Payment Deadline, the Company and the Co-Issuer will have all necessary corporate power and authority to execute and deliver the supplemental indenture contemplated by the Tender Documents (the “Applicable TimeSupplemental Indenture”) and as of each Settlement Date (as defined below), and agrees with the Sales Agent, the Forward Seller and the Forward Purchaser, as follows:
(1) The Company satisfies to perform all of their obligations thereunder; the requirements Supplemental Indenture may be entered into by the Company upon the consent of Holders of at least a majority of the Securities Act principal amount of Notes then outstanding (excluding for use of Form S-3 for the offering of the Shares contemplated hereby and the offering and sale of Shares contemplated hereby complies with the requirements of Rule 415 under the Securities Act. At the time of the initial filing of the Registration Statement, such purposes any Notes owned at the time of the most recent amendment thereto 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), at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Securities Act) made any offer relating to the Shares in reliance on the exemption of Rule 163 under the Securities Act and at the date hereof, the Company was and is a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act, including not having been and not being an “ineligible issuer,” as defined in Rule 405 under the Securities Act. The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 under the Securities Act, 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.” The Company has not received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting to the use of the automatic shelf registration statement form. The Company has paid or will pay the required Commission filing fees relating to the Shares within the time required by Rule 456(b)(1)(i) under the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Securities Act (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) under the Securities Act either in a post-effective amendment to the Registration Statement or on the cover page of the Prospectus).
(2) The Original Registration Statement became effective upon filing under Rule 462(e) under the Securities Act on February 12, 2020. 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 by the Commission, and any request on the part of the Commission for additional information has been complied with.
(3) Any offer that is a written communication relating to the Shares made prior to the initial filing of the Registration Statement by the Company or any person acting on of its behalf affiliates) pursuant to the provisions of the Indenture; the Supplemental Indenture will be duly executed and delivered (within assuming consummation of the meaningSolicitation and assuming due authorization, for this paragraph onlyexecution and delivery thereof by the Trustee), the Supplemental Indenture, as well as the Indenture (as amended by the Supplemental Indenture) and the Notes issued thereunder, will be the valid and legally binding obligations of Rule 163(c) under the Securities Act) has been filed with Company and Co-Issuer entitled, in the Commission case of the Notes, to the benefits of the Indenture (as amended by the Supplemental Indenture), and enforceable against the Company and the Co-Issuer in accordance with the exemption provided their respective terms except as enforcement thereof may be limited by Rule 163 under the Securities Act bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting creditors’ rights generally and otherwise complied with the requirements of Rule 163 under the Securities Act, including without limitation the legending requirementgeneral equitable principles.
(4e) The Company has delivered or made available on XXXXX to each Each of the Sales Agent Tender Documents complies and the Forward Seller one complete copy of the Registration Statement and a copy of each consent and certificate of experts filed as a part thereof, and conformed copies of the Registration Statement (without exhibits) and the Prospectus, as amended or supplemented, in such quantities and at such places as the Sales Agent if amended or the Forward Seller, as applicable, has reasonably requested. The Prospectus delivered to the Sales Agent and the Forward Seller for use in connection with the offering of Shares will, at the time of such delivery, be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(5supplemented) At the respective times the Registration Statement and each amendment thereto became effective, at each deemed effective date with respect to the Sales Agent, the Forward Seller or the Forward Purchaser pursuant to Rule 430B(f)(2) under the Securities Act, as the case may be, the Registration Statement complied and will comply in all material respects with the all applicable requirements of the Securities ActAct of 1933, as amended, and did the rules and regulations promulgated thereunder (collectively, the “Securities Act”) and the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (collectively, the “Exchange Act”); and the documents incorporated or deemed to be incorporated by reference into each of the Tender Documents (collectively, the “Incorporated Documents”) complied, as of the date of filing with the Securities and Exchange Commission (the “SEC”), in all material respects with all applicable requirements of the Securities Act and the Exchange Act; and each of the Tender Documents (including the Incorporated Documents) do not and (as amended or supplemented, if amended or supplemented) will not contain 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. The preceding sentence does not apply to statements in or omissions from the Registration Statement or any amendment thereto in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, expressly for inclusion in any of the aforementioned documents.
(6) Neither the Prospectus nor any amendments or supplements thereto, at the time the Prospectus or any such amendment or supplement was issued, as of the date hereof, at each Representation Date, at each Applicable Time, and at each Settlement Date, as the case may be, included or will include an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. .
(f) The preceding sentence does not apply to statements financial statements, together with the related schedules and notes, contained in or omissions from the Prospectus, as amended or supplementedTender Documents and the Incorporated Documents present fairly in all material respects, in reliance upon and in conformity accordance with written information relating to the Sales Agentgenerally accepted accounting principles (“GAAP”), the Forward Seller or the Forward Purchaser furnished to consolidated financial position, results of operations, stockholder’s equity and cash flows of the Company and its subsidiaries on the basis stated therein at the respective dates or for the respective periods to which they relate; and such statements and related schedules and notes have been prepared in writing accordance with GAAP consistently applied throughout the periods involved, except as disclosed therein.
(g) Except as disclosed in the Tender Documents, the Company and its subsidiaries are not in breach or violation of or in default under, (i) any of the provisions of the indenture, dated as of December 23, 2003, governing the Notes (the “Indenture”), (ii) any of the provisions of the charter or bylaws (or similar organizational documents) of the Company or any of its subsidiaries, (iii) any other note, indenture, loan agreement, mortgage or other agreement, instrument or undertaking to which the Company or any of its subsidiaries is a party or by which any of them is bound or to which any of their properties or assets is subject, or (iv) any law, rule or regulation, or any order of any court or of any other governmental agency or instrumentality having jurisdiction over the Company or any of its subsidiaries or affiliates or any of its or their respective properties or assets, which violation or default in the case of clauses (i), (iii) or (iv) would, if continued, have a Material Adverse Effect or could materially impair the ability of any of the Company or its subsidiaries to perform their obligations under this Agreement.
(h) The execution, delivery and performance by the Sales Agent, Company and Co-Issuer of this Agreement and the Forward Seller or consummation by the Forward PurchaserCompany and Co-Issuer, as applicable, expressly for inclusion of the transactions contemplated hereby do not and will not conflict with, or result (or with the passage of time would result) in a breach or violation of, or constitute a default under, (i) any of the aforementioned provisions of the indenture dated as of December 23, 2003, governing the Notes (the “Indenture”) or of the charter or bylaws (or similar organizational documents) of the Company or any of its subsidiaries, (ii) any other note, indenture, loan agreement, mortgage or other agreement, instrument or undertaking to which the Company or any of its subsidiaries or affiliates is a party or by which any of them is bound or to which any of their properties or assets is subject, or (iii) any law, rule or regulation, or any order of any court or of any other governmental agency or instrumentality having jurisdiction over the Company or any of its subsidiaries or affiliates or any of its or their respective properties or assets, except for such breaches, violations, and defaults in the case of clause (ii) and clause (iii) that would not be reasonably expected to have a material adverse effect on the general affairs, management, business, condition (financial or otherwise), or results of operations of the Company and its subsidiaries, taken as a whole (a “Material Adverse Effect”).
(7i) Each document incorporated No consent, approval, authorization or order of, or registration, qualification or filing with, any court or regulatory authority or other governmental agency or instrumentality is or will be required by reference the Company in connection with the Registration Statement making or consummation of the Tender Offer or the Prospectus heretofore filedexecution, when it was filed delivery or performance by the Company of this Agreement and the transactions contemplated hereby, except such as have been obtained or made by the Company or Co-Issuer, as applicable, and are in full force and effect under the Securities Act, the Exchange Act or applicable state securities or “blue sky” laws or regulations.
(orj) In connection with the Tender Offer, if any amendment with respect the Company has complied, and will continue to any such document was filedcomply, when such amendment was filed), conformed in all material respects with the requirements Securities Act, the Exchange Act, the applicable regulations of the Exchange Act Financial Industry Regulatory Authority or any stock exchange and applicable state securities or “blue sky” laws or regulations.
(k) Subsequent to the respective dates of the most recent financial statements contained in the Tender Documents and the rules and regulations thereunderIncorporated Documents (each as amended or supplemented), and no Material Adverse Effect shall have occurred, except as set forth in, or contemplated by, the Tender Documents (as amended or supplemented).
(l) There is no action, suit, proceeding, inquiry or investigation before or brought by any further documents so filed and incorporated after court or governmental agency or body, domestic or foreign, now pending or, to the date Company’s knowledge, threatened, against or affecting the Company or any subsidiary of this Agreement willthe Company, when they are filed, conform other than those accurately described in all material respects with in the requirements of the Exchange Act and the rules and regulations thereunder; no such document when it was filed (or, if an amendment with respect Offer to any such document was filed, when such amendment was filed), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and no such document, when it is filed, will contain an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(8) Each Issuer Free Writing Prospectus (as defined herein), on its issue date, as of each Applicable Time, and as of each Settlement DatePurchase, or until any earlier date that the issuer notified or notifies the Sales Agent or the Forward Seller as described in Section 8(d) hereof, 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 incorporated document deemed to be a part thereof that has not been superseded or modified. The foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with written information furnished to the Company by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, specifically for use therein.
(9) This Agreement has been duly authorized, executed and delivered by the Company and this Agreement constitutes a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and by general principles of equity (the “Exceptions”). The Master Forward Confirmation will have been, as of its date, duly authorized, executed and delivered by the Company and when executed and delivered by the Forward Purchaser, such Master Forward Confirmation will constitute a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by the Exceptions.
(10) The Company and its “Subsidiaries” (as defined in Section 6(a)(13) hereof) have been duly incorporated or organized and are validly existing as corporations or organizations in good standing under the laws of the states or other jurisdictions in which they are incorporated or organized, with full power and authority (corporate and other) to own, lease and operate their properties and conduct their businesses as described in the Prospectus and, with respect to the Company, to execute and deliver, and perform the Company’s obligations under, this Agreement; the Company and its Subsidiaries are duly qualified to do business as foreign corporations or organizations in good standing in each state or other jurisdiction in which their ownership or leasing of property or conduct of business legally requires such qualification, except where the failure to be so qualifiedwhich, individually or in the aggregate, would not have reasonably be expected to result in a Material Adverse Effect.
(m) The Company has, or at the time it becomes obligated to purchase the Notes pursuant to the Tender Offer will have, sufficient funds available, and sufficient authority to use such funds under applicable law, to enable it to pay for the Notes tendered in accordance with the terms and conditions set forth in the Tender Documents. The term “Material Adverse Effect” representations and warranties set forth in this Section 4 shall remain operative and in full force and effect regardless of any investigation made by or on behalf of any Indemnified Person (as used herein means any material adverse effect on the condition (financial or otherdefined in Annex A attached hereto), net worth, business, affairs, management, prospects, results of operations or cash flow of the Company and its Subsidiaries, taken as a whole.
Appears in 1 contract
Samples: Dealer Manager and Solicitation Agent Agreement (Suburban Propane Partners Lp)
Representations and Warranties by the Company. The Company represents and warrants to the Sales Agent, the Forward Seller and the Forward Purchaser as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 8(o) of this Agreement, as of that date on which any Placement Notice is given hereunder, as of the time of each sale of any Issuance Shares or Forward Hedge Shares pursuant to this Agreement (the “Applicable Time”) and as of each Settlement Date (as defined below)to, and agrees with the Sales Agentwith, the Forward Seller and the Forward Purchaser, as followseach Underwriter that:
(1a) The Company satisfies all of meets the requirements of the Securities Act for use of Form S-3 under the Securities Act of 1933, as amended (the "Act") and has filed with the Securities and Exchange Commission (the "Commission") a registration statement on such Form, including a prospectus, for the registration under the Act of the Shares, which registration statement has become effective. Such registration statement and prospectus may have been amended or supplemented from time to time prior to the date of this Agreement (which date is set forth in Schedule I hereto). Any such amendment or supplement was filed with the Commission and any such amendment has become effective. The Company will file with the Commission a prospectus supplement (the "Prospectus Supplement") relating to the Shares pursuant to Rule 424 and/or Rule 434 under the Act. Copies of such registration statement and prospectus, any such amendment or supplement and all documents incorporated by reference therein which were filed with the Commission on or prior to the date of this Agreement have been delivered to you and copies of the Prospectus Supplement will be delivered to you promptly after it is filed with the Commission. Such registration statement, as amended prior to the date of this Agreement, and such prospectus, as amended and supplemented prior to the date of this Agreement and as supplemented by the Prospectus Supplement, are hereinafter called the "Registration Statement" and the "Prospectus", respectively. Any reference herein to the Registration Statement or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 which were filed under the Securities Exchange Act of 1934, as amended (the "Exchange Act") on or before the date of this Agreement and, if the Company files any document pursuant to the Exchange Act after the date of this Agreement and prior to the termination of the offering of the Shares contemplated hereby by the Underwriters, which documents are deemed to be incorporated by reference into the Prospectus, the term "Prospectus" shall refer also to said prospectus as supplemented by the documents so filed from and after the offering and sale of Shares contemplated hereby complies time said documents are filed with the requirements of Rule 415 under the Securities ActCommission. At the time There are no contracts or documents of the initial filing Company or any of its subsidiaries that are required to be filed as exhibits to the Registration Statement or any documents incorporated by reference therein by the Act, the Exchange Act or the rules and regulations thereunder which have not been so filed.
(b) No order preventing or suspending the use of the Prospectus or the Registration Statement has been issued by the Commission and the Registration Statement, at the time date of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective amendmentthis Agreement, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Securities Act) made any offer relating to the Shares in reliance on the exemption of Rule 163 under the Securities Act and at the date hereof, the Company was and is a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act, including not having been and not being an “ineligible issuer,” as defined in Rule 405 under the Securities Act. The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 under the Securities Act, 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.” The Company has not received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting to the use of the automatic shelf registration statement form. The Company has paid or will pay the required Commission filing fees relating to the Shares within the time required by Rule 456(b)(1)(i) under the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Securities Act (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) under the Securities Act either in a post-effective amendment to the Registration Statement or on the cover page of the Prospectus).
(2) The Original Registration Statement became effective upon filing under Rule 462(e) under the Securities Act on February 12, 2020. 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 by the Commission, and any request on the part of the Commission for additional information has been complied with.
(3) Any offer that is a written communication relating to the Shares made prior to the initial filing of the Registration Statement by the Company or any person acting on its behalf (within the meaning, for this paragraph only, of Rule 163(c) under the Securities Act) has been filed with the Commission in accordance with the exemption provided by Rule 163 under the Securities Act and otherwise complied with the requirements of Rule 163 under the Securities Act, including without limitation the legending requirement.
(4) The Company has delivered or made available on XXXXX to each of the Sales Agent and the Forward Seller one complete copy of the Registration Statement and a copy of each consent and certificate of experts filed as a part thereof, and conformed copies of the Registration Statement (without exhibits) and the Prospectus, as amended or supplemented, in such quantities and at such places as the Sales Agent or the Forward Seller, as applicable, has reasonably requested. The Prospectus delivered to the Sales Agent and the Forward Seller for use in connection with the offering of Shares will, at the time of such delivery, be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(5) At the respective times the Registration Statement and each amendment thereto became effective, at each deemed effective date with respect to the Sales Agent, the Forward Seller or the Forward Purchaser pursuant to Rule 430B(f)(2) under the Securities Act, as the case may be, the Registration Statement complied and will comply in all material respects with the requirements of the Securities Act, Act and the respective rules and regulations of the Commission thereunder and did not and will not contain 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. The preceding sentence does not apply to statements in or omissions from the Registration Statement or any amendment thereto in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, expressly for inclusion in any of the aforementioned documents.
(6) Neither the Prospectus nor any amendments or supplements thereto, at the time the Prospectus or any such amendment or supplement was issued, as of the date hereof, at each Representation Date, at each Applicable Time, and at each Settlement Date, as the case may be, included or will include an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from the Prospectus, as amended or supplemented, in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, expressly for inclusion in any of the aforementioned documents.
(7) Each document incorporated by reference in the Registration Statement or the Prospectus heretofore filed, when it was filed (or, if any amendment with respect to any such document was filed, when such amendment was filed), conformed in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder, and any further documents so filed and incorporated after the date of this Agreement will, when they are filed, conform in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder; no such document when it was filed (or, if an amendment with respect to any such document was filed, when such amendment was filed), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and, at the time the Prospectus Supplement is filed with the Commission and no such documentat the Closing Date (as hereinafter defined), when it is filed, the Prospectus will comply in all material respects with the Act and the rules and regulations of the Commission thereunder and will not contain an any untrue statement of a material fact or will omit to state a any material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(8) Each Issuer Free Writing Prospectus (as defined herein), on its issue date, as of each Applicable Time, and as of each Settlement Date, or until any earlier date ; provided that the issuer notified Company makes no representations or notifies the Sales Agent or the Forward Seller warranties as described in Section 8(d) hereof, did not, does not and will not include any information that conflicted, conflicts or will conflict with to the information contained in or omitted from the Registration Statement or the Prospectus in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of any Underwriter through the Representatives specifically for use in the Registration Statement or Prospectus.
(c) The documents incorporated by reference in the Prospectus, including when they were filed with the Commission, conformed in all material respects to the requirements of the Exchange Act and the rules and regulations of the Commission thereunder, and any documents so filed and incorporated document deemed by reference subsequent to the date of this Agreement will, when they are filed with the Commission, conform in all material respects to the requirements of the Exchange Act, and the rules and regulations of the Commission thereunder; and none of such documents include or will include any untrue statement of a material fact or omit or will omit to state any 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.
(d) Xxxxxx Xxxxxxxx LLP, which audited certain of the financial statements incorporated by reference in the Registration Statement, is an independent public accountant as required by the Act and the rules and regulations of the Commission thereunder.
(e) The financial statements of the Company and its consolidated subsidiaries filed as a part thereof that has not of or incorporated by reference in the Registration Statement or Prospectus fairly present the financial position of the Company and its consolidated subsidiaries as of the dates indicated and the results of their operations and changes in financial position for the periods specified, and have been superseded or modified. The foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and prepared in conformity with written information furnished to generally accepted accounting principles applied on a consistent basis throughout the Company by periods involved, except as disclosed in the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, specifically for use thereinProspectus Supplement.
(9f) This Agreement The Company has been duly authorized, executed incorporated and delivered by the Company and this Agreement constitutes a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and by general principles of equity (the “Exceptions”). The Master Forward Confirmation will have been, as of its date, duly authorized, executed and delivered by the Company and when executed and delivered by the Forward Purchaser, such Master Forward Confirmation will constitute a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by the Exceptions.
(10) The Company and its “Subsidiaries” (as defined in Section 6(a)(13) hereof) have been duly incorporated or organized and are is validly existing as corporations or organizations a corporation in good standing under the laws of the states or other jurisdictions State of Minnesota with due corporate authority to carry on the business in which they are incorporated or organized, with full power it is engaged and authority (corporate and other) to own, lease own and operate their the properties and conduct their businesses used by it in such business, as described in the Prospectus and, with respect to the Company, to execute and deliver, and perform the Company’s obligations under, this AgreementProspectus; the Company and its Subsidiaries are duly is qualified to do business as a foreign corporations corporation and is in good standing under the laws of the States of North Dakota, South Dakota and Colorado; and the Company is not required by the nature of its business to be licensed or organizations qualified as a foreign corporation in any other state or jurisdiction; and, except as set forth in the Prospectus Supplement, the Company has all material licenses and approvals required at the date hereof to conduct its business.
(g) Each subsidiary of the Company named in Exhibit 21.01 to the Company's most recent Annual Report on Form 10-K ("Significant Subsidiary") has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation and is duly qualified as a foreign corporation to transact business and is in good standing in each state or other jurisdiction in which their ownership it owns or leasing of property leases substantial properties or in which the conduct of its business legally requires such qualification; all of the issued and outstanding capital stock of each such subsidiary has been duly authorized and validly issued and is fully paid and non-assessable; and the capital stock of each such subsidiary owned by the Company, directly or through subsidiaries, is owned free and clear of any pledge, lien, encumbrance, claim or equity.
(h) Neither the Company nor any of its subsidiaries has sustained since the date of the latest audited financial statements included or incorporated by reference in the Prospectus any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus Supplement; and, since the respective dates as of which information is given in the Registration Statement and the Prospectus Supplement, neither the Company nor any of its subsidiaries has incurred any liabilities or obligations, direct or contingent, or entered into any transactions, not in the ordinary course of business, which are material to the Company and its subsidiaries, and there has not been any material change in the capital stock or long-term debt of the Company or any of its subsidiaries or any material adverse change, or any development involving a prospective material adverse change, in or affecting the general affairs, management, financial position, stockholders' equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Prospectus Supplement.
(i) Neither the execution and delivery of this Agreement, the issuance and delivery of the Shares, the consummation of the transactions herein contemplated, the fulfillment of the terms hereof, nor compliance with the terms and provisions of this Agreement, will conflict with, or result in the breach of, any of the terms, provisions or conditions of the Restated Articles of Incorporation, as amended, or by-laws of the Company, or of any contract, agreement or instrument to which the Company is a party or in which the Company has a beneficial interest or by which the Company is bound or of any order, rule or regulation applicable to the Company of any court or of any federal or state regulatory body or administrative agency or other governmental body having jurisdiction over the Company or over its properties.
(j) The Shares have been duly authorized for issuance and sale pursuant to this Agreement and, when issued and delivered and paid for as provided herein, will be duly authorized, validly issued and fully paid and nonassessable and will conform to the description of the Common Stock in the Registration Statement and Prospectus. Shareholders of the Company will have no preemptive rights with respect to the issuance of the Shares.
(k) The Agreement has been duly and validly authorized, executed and delivered by the Company.
(l) [The Securities and Exchange Commission has issued a financing order under the Public Utility Holding Company Act of 1935, which order authorizes the issuance of the Shares, and no other approval of any regulatory public body, state or federal, is, or will be at the Closing Date (as hereinafter defined), necessary in connection with the issuance and sale of the Shares pursuant to this Agreement, other than approvals that may be required under state securities laws.]
(m) The Company has good and valid title to all real and fixed property and leasehold rights which are owned by it, subject only to taxes and assessments not yet delinquent; as to parts of the Company's property, certain easements, conditions, restrictions, leases, and similar encumbrances which do not affect the Company's use of such property in the usual course of its business, and certain minor defects in titles which are not material, and defects in titles to certain properties which are not essential to the Company's business; and mechanics' lien claims being contested or not of record or for the satisfaction or discharge of which adequate provision has been made by the Company; and any real property and buildings held under lease by the Company is held by it under valid, subsisting and enforceable leases with such exceptions as are not material and do not interfere with the use made and proposed to be made of such property and buildings by the Company.
(n) Other than as set forth or contemplated in the Prospectus as of the date hereof, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the consolidated financial position, stockholders' equity or results of operations of the Company and its subsidiaries; and, to the best of the Company's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others.
(o) The Company is not an "investment company" or an entity "controlled" by an "investment company," as such terms are defined in the Investment Company Act of 1940, as amended.
(p) Except as set forth in the Prospectus Supplement, the Company and its subsidiaries (A) are in compliance with any and all applicable federal, state and local laws and regulations relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants ("Environmental Laws"), (B) have received all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct its respective business and (C) are in compliance with all terms and conditions of any such permits, licenses or approvals, except where the such noncompliance with Environmental Laws, failure to be so qualifiedreceive required permits, individually licenses or other approvals or failure to comply with the terms and conditions of such permits, licenses or approvals would not, singly or in the aggregate, would not have a Material Adverse Effect. The term “Material Adverse Effect” as used herein means any material adverse effect on the condition (financial or other), net worth, business, affairs, management, prospects, results of operations or cash flow of the Company and its Subsidiariessubsidiaries, taken as a whole.
Appears in 1 contract
Representations and Warranties by the Company. The Company represents and warrants to the Sales Agent, the Forward Seller and the Forward Purchaser Citigroup as of (i) the date hereof and as of hereof, (ii) each date on which a Placement Notice becomes effective pursuant to Section 2 hereof, (iii) each Representation Date (as defined belowherein) on which a certificate is certificates are required to be delivered pursuant to Section 8(o7(o) of this Agreement, as of that date on which any Placement Notice is given hereunder, as of (iv) the time of each sale of any Issuance Shares Securities or Forward Hedge Shares any securities pursuant to this Agreement (the “Applicable Time”) and as of (v) each Settlement Date (as defined below), and agrees with the Sales Agent, the Forward Seller and the Forward PurchaserCitigroup, as follows:follows (provided, that the representations and warranties of the Company set forth in Section 5(36)(ii) are only made as of the date hereof):
(1) The Company satisfies all of the requirements of Securities have been duly registered under the Securities Act for use of Form S-3 for pursuant to the offering of the Shares contemplated hereby and the offering and sale of Shares contemplated hereby complies with the requirements of Rule 415 Registration Statement. The Registration Statement has become effective under the Securities Act. At , or, with respect to any registration statement to be filed to register the time of the initial filing of the Registration Statement, at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) offer and sale of the Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(dRule 462(b) of the Exchange Act or form of prospectus), at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Securities Act) made any offer relating to the Shares in reliance on the exemption of Rule 163 under the Securities Act and at the date hereof, the Company was and is a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act, including not having been and not being an the documents incorporated by reference therein (a “ineligible issuer,” as defined in Rule 405 under the Securities Act. The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 under the Securities Act, and the Shares, since their registration on the 462(b) Registration Statement”), have been and remain eligible for registration by the Company on a Rule 405 “automatic shelf registration statement.” The Company has not received from will be filed with the Commission any notice pursuant to Rule 401(g)(2) and become effective under the Securities Act objecting prior to the time of any sale of Securities pursuant to such Rule 462(b) Registration Statement, and no stop order preventing or suspending the use of any base prospectus, the automatic shelf registration statement form. The Company has paid Prospectus Supplement, the Prospectus or will pay the required Commission filing fees relating to the Shares within the time required by Rule 456(b)(1)(i) under the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Securities Act any Permitted Free Writing Prospectus (includingas defined below), if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) under the Securities Act either in a post-effective amendment to the Registration Statement or on the cover page of the Prospectus).
(2) The Original Registration Statement became effective upon filing under Rule 462(e) under the Securities Act on February 12, 2020. No stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act or any Rule 462(b) Registration Statement and no proceedings for that such purpose have been instituted or are pending or, to the knowledge of the Company, are contemplated by the Commission, and any request on the part of the Commission for additional information has been complied with.
(3) Any offer that is a written communication relating to the Shares made prior to the initial filing of the Registration Statement by the Company or any person acting on its behalf (within the meaning, for this paragraph only, of Rule 163(c) under the Securities Act) has been filed with the Commission in accordance with the exemption provided by Rule 163 under the Securities Act and otherwise complied with the requirements of Rule 163 under the Securities Act, including without limitation the legending requirement.
(4) The Company has delivered or made available on XXXXX to each of the Sales Agent and the Forward Seller one complete copy of the Registration Statement and a copy of each consent and certificate of experts filed as a part thereof, and conformed copies of the Registration Statement (without exhibits) and the Prospectus, as amended or supplemented, in such quantities and at such places as the Sales Agent or the Forward Seller, as applicable, has reasonably requested. The Prospectus delivered to the Sales Agent and the Forward Seller for use in connection with the offering of Shares will, at the time of such delivery, be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(5) At the respective times each of the Registration Statement, any Rule 462(b) Registration Statement and each amendment any post-effective amendments thereto became effective, at each deemed or becomes effective and as of the date with respect to the Sales Agent, the Forward Seller or the Forward Purchaser pursuant to Rule 430B(f)(2) under the Securities Act, as the case may behereof, the Registration Statement, any Rule 462(b) Registration Statement and any amendments and supplements thereto complied and will comply in all material respects with the requirements of the Securities Act. The conditions for the use of Form S-3, as set forth in the General Instructions thereto, have been complied with and the Registration Statement meets, and the offering and sale of the Securities as contemplated hereby complies with, the requirements of Rule 415 under the Securities Act (including without limitation, Rule 415(a)(5)). The initial effective date of the Registration Statement was not earlier than the date three years before the date of this Agreement. The Registration Statement, as of the date hereof and each effective date with respect thereto, did not 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 in order to make the statements therein not misleading. The preceding sentence does not apply to statements in or omissions from the Registration Statement or any amendment thereto in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, expressly for inclusion in any of the aforementioned documents.
(6) Neither the Prospectus nor any amendments or supplements thereto, at the time the Prospectus or any such amendment or supplement was issued, as of the date hereof, at each Representation Date, at each Applicable Timetheir respective dates, and at each Applicable Time and Settlement Date, as the case may be, included or will include an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The representations and warranties set forth in the immediately preceding sentence does paragraph shall not apply to statements in or omissions from the Registration Statement or the Prospectus, as amended or supplemented, made in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, Citigroup expressly for inclusion in any of the aforementioned documents.
(7) Each document incorporated by reference in the Registration Statement or the Prospectus heretofore filed, when it was filed (or, if any amendment with respect to any such document was filed, when such amendment was filed), conformed in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder, and any further documents so filed and incorporated after the date of this Agreement will, when they are filed, conform in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder; no such document when it was filed (or, if an amendment with respect to any such document was filed, when such amendment was filed), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and no such document, when it is filed, will contain an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(8) Each Issuer Free Writing Prospectus (as defined herein), on its issue date, as of each Applicable Time, and as of each Settlement Date, or until any earlier date that the issuer notified or notifies the Sales Agent or the Forward Seller as described in Section 8(d) hereof, 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 incorporated document deemed to be a part thereof that has not been superseded or modified. The foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with written information furnished to the Company by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, specifically for use therein.
(9) This Agreement has been duly authorized, executed it being understood and delivered agreed that the only such information furnished by the Company and this Agreement constitutes a valid and legally binding obligation Citigroup consists of the Company enforceable against the Company in accordance with its terms, except information described as enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and by general principles of equity (the “Exceptions”). The Master Forward Confirmation will have been, as of its date, duly authorized, executed and delivered by the Company and when executed and delivered by the Forward Purchaser, such Master Forward Confirmation will constitute a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by the Exceptions.
(10) The Company and its “Subsidiaries” (as defined in Section 6(a)(1310(b) hereof) have been duly incorporated or organized and are validly existing as corporations or organizations in good standing under the laws of the states or other jurisdictions in which they are incorporated or organized, with full power and authority (corporate and other) to own, lease and operate their properties and conduct their businesses as described in the Prospectus and, with respect to the Company, to execute and deliver, and perform the Company’s obligations under, this Agreement; the Company and its Subsidiaries are duly qualified to do business as foreign corporations or organizations in good standing in each state or other jurisdiction in which their ownership or leasing of property or conduct of business legally requires such qualification, except where the failure to be so qualified, individually or in the aggregate, would not have a Material Adverse Effect. The term “Material Adverse Effect” as used herein means any material adverse effect on the condition (financial or other), net worth, business, affairs, management, prospects, results of operations or cash flow of the Company and its Subsidiaries, taken as a whole.
Appears in 1 contract
Samples: Equity Distribution Agreement (Blackstone Mortgage Trust, Inc.)
Representations and Warranties by the Company. The Company represents and warrants to the Sales AgentDealer Manager, the Forward Seller and the Forward Purchaser as of the date hereof hereof, as of each date that any Exchange Offer Documents are published, sent, given or otherwise distributed, throughout the continuance of the Exchange Offer, and as of each Representation Date (as defined below) the closing date of the Exchange Offer on which a certificate is required to be delivered the Net Perceptions Shares are exchanged by the Company pursuant to Section 8(othe Exchange Offer (the "Closing Date") that:
(a) The Company has been duly incorporated and is validly existing as a corporation and in good standing under the laws of the jurisdiction of its incorporation; and the Company's subsidiaries have been duly incorporated or otherwise formed and are validly existing as a corporation, partnership, limited liability company or other legal entity and in good standing under laws of their respective jurisdictions of incorporation or formation.
(b) The Company has all necessary corporate power and authority to execute and deliver this Agreement, and to perform all its obligations hereunder and to make and consummate the Exchange Offer in accordance with its terms.
(c) The Company has taken all necessary corporate action to authorize the making and consummation of the Exchange Offer and the execution, delivery and performance by the Company of this Agreement, as of that date on which any Placement Notice is given hereunder, as of the time of each sale of any Issuance Shares or Forward Hedge Shares pursuant to ; and this Agreement (the “Applicable Time”) has been duly executed and as of each Settlement Date (as defined below), and agrees with the Sales Agent, the Forward Seller and the Forward Purchaser, as follows:
(1) The Company satisfies all of the requirements of the Securities Act for use of Form S-3 for the offering of the Shares contemplated hereby and the offering and sale of Shares contemplated hereby complies with the requirements of Rule 415 under the Securities Act. At the time of the initial filing of the Registration Statement, at the time of the most recent amendment thereto 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), at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Securities Act) made any offer relating to the Shares in reliance on the exemption of Rule 163 under the Securities Act and at the date hereof, the Company was and is a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act, including not having been and not being an “ineligible issuer,” as defined in Rule 405 under the Securities Act. The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 under the Securities Act, and the Shares, since their registration on the Registration Statement, have been and remain eligible for registration delivered by the Company on and, assuming due authorization, execution and delivery by the other parties hereto, this Agreement constitutes a Rule 405 “automatic shelf registration statement.” The Company has not received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting to the use of the automatic shelf registration statement form. The Company has paid or will pay the required Commission filing fees relating to the Shares within the time required by Rule 456(b)(1)(i) under the Securities Act without regard to the proviso therein valid and otherwise in accordance with Rules 456(b) and 457(r) under the Securities Act (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) under the Securities Act either in a post-effective amendment to the Registration Statement or on the cover page of the Prospectus).
(2) The Original Registration Statement became effective upon filing under Rule 462(e) under the Securities Act on February 12, 2020. 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 legally binding agreement of the Company, are contemplated enforceable against the Company in accordance with its terms, except to the extent such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting the Commission, rights and any request on the part remedies of the Commission for additional information has been complied withcreditors or by general equitable principles.
(3d) Any offer that is a written communication relating to the Shares made prior to the initial filing Each of the Registration Statement by the Company or any person acting on its behalf Exchange Offer Documents complies and (within the meaning, for this paragraph only, of Rule 163(c) under the Securities Act) has been filed with the Commission in accordance with the exemption provided by Rule 163 under the Securities Act and otherwise complied with the requirements of Rule 163 under the Securities Act, including without limitation the legending requirement.
(4) The Company has delivered or made available on XXXXX to each of the Sales Agent and the Forward Seller one complete copy of the Registration Statement and a copy of each consent and certificate of experts filed as a part thereof, and conformed copies of the Registration Statement (without exhibits) and the Prospectus, as amended or supplemented, in such quantities and at such places as the Sales Agent if amended or the Forward Seller, as applicable, has reasonably requested. The Prospectus delivered to the Sales Agent and the Forward Seller for use in connection with the offering of Shares will, at the time of such delivery, be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(5supplemented) At the respective times the Registration Statement and each amendment thereto became effective, at each deemed effective date with respect to the Sales Agent, the Forward Seller or the Forward Purchaser pursuant to Rule 430B(f)(2) under the Securities Act, as the case may be, the Registration Statement complied and will comply in all material respects with the all applicable requirements of the Securities ActAct of 1933, as amended, and did the rules and regulations promulgated thereunder (collectively, the "Securities Act") and the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (collectively, the "Exchange Act"); and the documents incorporated or deemed to be incorporated by reference into each of the Exchange Offer Documents (collectively, the "Incorporated Documents") complied, as of the date of filing with the Securities and Exchange Commission (the "SEC"), in all material respects with all applicable requirements of the Securities Act and the Exchange Act; and each of the Exchange Offer Documents (including the Incorporated Documents) do not and (as amended or supplemented, if amended or supplemented) will not contain 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. The preceding sentence does not apply to statements in or omissions from the Registration Statement or any amendment thereto in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, expressly for inclusion in any of the aforementioned documents.
(6) Neither the Prospectus nor any amendments or supplements thereto, at the time the Prospectus or any such amendment or supplement was issued, as of the date hereof, at each Representation Date, at each Applicable Time, and at each Settlement Date, as the case may be, included or will include an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. .
(e) The preceding sentence does not apply to statements financial statements, together with the related schedules and notes, contained in or omissions from the Prospectus, as amended or supplementedExchange Offer Documents and the Incorporated Documents present fairly, in reliance upon and in conformity accordance with written information relating to the Sales Agentgenerally accepted accounting principles ("GAAP"), the Forward Seller consolidated financial position, results of operations, stockholder's equity and cash flows of the Company and its subsidiaries on the basis stated therein at the respective dates or for the Forward Purchaser furnished respective periods to which they relate; and such statements and related schedules and notes have been prepared in accordance with GAAP consistently applied throughout the periods involved, except as disclosed therein.
(f) Except as disclosed in the Exchange Offer Documents, the Company and its subsidiaries are not in breach or violation of or in default under, (i) any of the provisions of the charter or bylaws (or similar organizational documents) of the Company or any of its subsidiaries, (ii) any note, indenture, loan agreement, mortgage or other agreement, instrument or undertaking to which the Company or any of its subsidiaries is a party or by which any of them is bound or to which any of their properties or assets is subject other than breaches, violations or defaults that would not have a material adverse effect on the condition, financial or otherwise, earnings, business, operations or prospects of the Company and its subsidiaries taken as a whole, or (iii) any law, rule or regulation, or any order of any court or of any other governmental agency or instrumentality having jurisdiction over the Company or any of its subsidiaries or affiliates or any of its or their respective properties or assets, other than violations or defaults that would not have a material adverse effect on the condition, financial or otherwise, earnings, business, operations or prospects of the Company and its subsidiaries taken as a whole.
(g) The execution, delivery and performance by the Company of this Agreement and the transactions contemplated hereby do not and will not conflict with, or result (or with the passage of time would result) in a breach or violation of, or constitute a default under, (i) any of the provisions of the charter or bylaws (or similar organizational documents) of the Company or any of its subsidiaries, (ii) any note, indenture, loan agreement, mortgage or other agreement, instrument or undertaking to which the Company or any of its subsidiaries or affiliates is a party or by which any of them is bound or to which any of their properties or assets is subject, or (iii) any law, rule or regulation, or any order of any court or of any other governmental agency or instrumentality having jurisdiction over the Company or any of its subsidiaries or affiliates or any of its or their respective properties or assets.
(h) No consent, approval, authorization or order of, or registration, qualification or filing with, any court or regulatory authority or other governmental agency or instrumentality is or will be required by the Company in writing connection with the making or consummation of the Exchange Offer or the execution, delivery or performance by the Sales AgentCompany of this Agreement and the transactions contemplated hereby, except such as have been obtained or made by the Company and are in full force and effect under the Securities Act, the Forward Seller Exchange Act or the Forward Purchaser, as applicable, expressly for inclusion in any of the aforementioned documentsapplicable state securities or "blue sky" laws or regulations.
(7i) Each document incorporated by reference in In connection with the Registration Statement or Exchange Offer, the Prospectus heretofore filedCompany has complied, when it was filed (orand will continue to comply, if any amendment with respect to any such document was filed, when such amendment was filed), conformed in all material respects with the requirements Securities Act, the Exchange Act, the applicable regulations of the Exchange Act NASD Inc. or any stock exchange and the rules and regulations thereunder, and any further documents so filed and incorporated after the date of this Agreement will, when they are filed, conform in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder; no such document when it was filed (or, if an amendment with respect to any such document was filed, when such amendment was filed), contained an untrue statement of a material fact applicable state securities or omitted to state a material fact required to be stated therein "blue sky" laws or necessary in order to make the statements therein not misleading; and no such document, when it is filed, will contain an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(8) Each Issuer Free Writing Prospectus (as defined herein), on its issue date, as of each Applicable Time, and as of each Settlement Date, or until any earlier date that the issuer notified or notifies the Sales Agent or the Forward Seller as described in Section 8(d) hereof, 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 incorporated document deemed to be a part thereof that has not been superseded or modifiedregulations. The foregoing sentence does not apply to statements representations and warranties set forth in or omissions from any Issuer Free Writing Prospectus based upon this Section 4 shall remain operative and in conformity with written information furnished to the Company full force and effect regardless of (i) any investigation made by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, specifically for use therein.
(9) This Agreement has been duly authorized, executed and delivered by the Company and this Agreement constitutes a valid and legally binding obligation on behalf of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and by general principles of equity (the “Exceptions”). The Master Forward Confirmation will have been, as of its date, duly authorized, executed and delivered by the Company and when executed and delivered by the Forward Purchaser, such Master Forward Confirmation will constitute a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by the Exceptions.
(10) The Company and its “Subsidiaries” any Indemnified Person (as defined in Section 6(a)(13Annex A attached hereto) hereofor (ii) have been duly incorporated any termination, expiration or organized and are validly existing as corporations or organizations in good standing under the laws cancellation of the states or other jurisdictions in which they are incorporated or organized, with full power and authority (corporate and other) to own, lease and operate their properties and conduct their businesses as described in the Prospectus and, with respect to the Company, to execute and deliver, and perform the Company’s obligations under, this Agreement; the Company and its Subsidiaries are duly qualified to do business as foreign corporations or organizations in good standing in each state or other jurisdiction in which their ownership or leasing of property or conduct of business legally requires such qualification, except where the failure to be so qualified, individually or in the aggregate, would not have a Material Adverse Effect. The term “Material Adverse Effect” as used herein means any material adverse effect on the condition (financial or other), net worth, business, affairs, management, prospects, results of operations or cash flow of the Company and its Subsidiaries, taken as a whole.
Appears in 1 contract
Samples: Dealer Manager Agreement (Obsidian Enterprises Inc)
Representations and Warranties by the Company. The Company represents and warrants to the Sales Agent, the Forward Seller and the Forward Purchaser as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 8(o) of this Agreement, as of that date on which any Placement Notice is given hereunder, as of the time of each sale of any Issuance Shares or Forward Hedge Shares pursuant to this Agreement (the “Applicable Time”) and as of each Settlement Date (as defined below)to, and agrees with the Sales Agentwith, the Forward Seller and the Forward Purchaser, as follows:
each Underwriter that: (1a) The Company satisfies all of meets the requirements of the Securities Act for use of Form S-3 for the offering of the Shares contemplated hereby and the offering and sale of Shares contemplated hereby complies with the requirements of Rule 415 under the Securities Act. At the time of the initial filing of the Registration Statement, at the time of the most recent amendment thereto 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), at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Securities Act) made any offer relating to the Shares in reliance on the exemption of Rule 163 under the Securities Act of 1933, as amended (the "Act") and at has filed with the date hereofSecurities and Exchange Commission (the "Commission") a registration statement on such Form, including a prospectus, for the Company was and is a “well-known seasoned issuer” as defined in Rule 405 registration under the Securities ActAct of the Bonds, including not having been which registration statement has become effective. Such registration statement and not being an “ineligible issuer,” as defined in Rule 405 under the Securities Act. The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 under the Securities Act, and the Shares, since their registration on the Registration Statement, prospectus may have been and remain eligible for registration by the Company on a Rule 405 “automatic shelf registration statement.” The Company has not received amended or supplemented from the Commission any notice pursuant time to Rule 401(g)(2) under the Securities Act objecting to the use of the automatic shelf registration statement form. The Company has paid or will pay the required Commission filing fees relating to the Shares within the time required by Rule 456(b)(1)(i) under the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Securities Act (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) under the Securities Act either in a post-effective amendment to the Registration Statement or on the cover page of the Prospectus).
(2) The Original Registration Statement became effective upon filing under Rule 462(e) under the Securities Act on February 12, 2020. 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 by the Commission, and any request on the part of the Commission for additional information has been complied with.
(3) Any offer that is a written communication relating to the Shares made prior to the initial filing date of the Registration Statement by the Company this Agreement (which date is set forth in Schedule I hereto). Any such amendment or any person acting on its behalf (within the meaning, for this paragraph only, of Rule 163(c) under the Securities Act) has been supplement was filed with the Commission in accordance with the exemption provided by Rule 163 under the Securities Act and otherwise complied with the requirements of Rule 163 under the Securities Act, including without limitation the legending requirement.
(4) any such amendment has become effective. The Company has delivered or made available on XXXXX to each of the Sales Agent and the Forward Seller one complete copy of the Registration Statement and a copy of each consent and certificate of experts filed as a part thereof, and conformed copies of the Registration Statement (without exhibits) and the Prospectus, as amended or supplemented, in such quantities and at such places as the Sales Agent or the Forward Seller, as applicable, has reasonably requested. The Prospectus delivered to the Sales Agent and the Forward Seller for use in connection with the offering of Shares will, at the time of such delivery, be identical to the electronically transmitted copies thereof filed will file with the Commission pursuant to XXXXX, except a prospectus supplement (the "Prospectus Supplement") relating to the extent permitted by Regulation S-T.
(5) At the respective times the Registration Statement and each amendment thereto became effective, at each deemed effective date with respect to the Sales Agent, the Forward Seller or the Forward Purchaser Bonds pursuant to Rule 430B(f)(2) 424 and/or Rule 434 under the Securities Act. Copies of such registration statement and prospectus, as the case may be, the Registration Statement complied and will comply in all material respects with the requirements of the Securities Act, and did not 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. The preceding sentence does not apply to statements in or omissions from the Registration Statement or any amendment thereto in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, expressly for inclusion in any of the aforementioned documents.
(6) Neither the Prospectus nor any amendments or supplements thereto, at the time the Prospectus or any such amendment or supplement was issued, as and all documents incorporated by reference therein which were filed with the Commission on or prior to the date of this Agreement have been delivered to you and copies of the Prospectus Supplement will be delivered to you promptly after it is filed with the Commission. Such registration statement as amended prior to the date hereof, at each Representation Date, at each Applicable Timeof this Agreement, and at each Settlement Date, as the case may be, included or will include an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from the Prospectussuch prospectus, as amended or supplemented, in reliance upon and in conformity with written information relating supplemented prior to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing date of this Agreement and as supplemented by the Sales AgentProspectus Supplement, are hereinafter called the Forward Seller or "Registration Statement" and the Forward Purchaser"Prospectus", as applicable, expressly for inclusion in any of the aforementioned documents.
(7) Each document incorporated by respectively. Any reference in herein to the Registration Statement or the Prospectus heretofore filedshall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 which were filed under the Securities Exchange Act of 1934, when it was filed as amended (orthe "Exchange Act") on or before the date of this Agreement and, if the Company files any amendment with respect document pursuant to any such document was filed, when such amendment was filed), conformed in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder, and any further documents so filed and incorporated after the date of this Agreement will, when they are filed, conform in all material respects with and prior to the requirements termination of the Exchange Act and offering of the rules and regulations thereunder; no such document when it was filed (orBonds by the Underwriters, if an amendment with respect to any such document was filed, when such amendment was filed), contained an untrue statement of a material fact or omitted to state a material fact required which documents are deemed to be stated therein or necessary in order to make the statements therein not misleading; and no such document, when it is filed, will contain an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(8) Each Issuer Free Writing Prospectus (as defined herein), on its issue date, as of each Applicable Time, and as of each Settlement Date, or until any earlier date that the issuer notified or notifies the Sales Agent or the Forward Seller as described in Section 8(d) hereof, 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 incorporated by reference into the Prospectus, including any incorporated document deemed the term "Prospectus" shall refer also to be a part thereof that has not been superseded or modified. The foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with written information furnished to the Company said prospectus as supplemented by the Sales Agent, documents so filed from and after the Forward Seller or time said documents are filed with the Forward Purchaser, as applicable, specifically for use therein.
(9) This Agreement has been duly authorized, executed and delivered by the Company and this Agreement constitutes a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and by general principles of equity (the “Exceptions”). The Master Forward Confirmation will have been, as of its date, duly authorized, executed and delivered by the Company and when executed and delivered by the Forward Purchaser, such Master Forward Confirmation will constitute a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by the Exceptions.
(10) The Company and its “Subsidiaries” (as defined in Section 6(a)(13) hereof) have been duly incorporated or organized and are validly existing as corporations or organizations in good standing under the laws of the states or other jurisdictions in which they are incorporated or organized, with full power and authority (corporate and other) to own, lease and operate their properties and conduct their businesses as described in the Prospectus and, with respect to the Company, to execute and deliver, and perform the Company’s obligations under, this Agreement; the Company and its Subsidiaries are duly qualified to do business as foreign corporations or organizations in good standing in each state or other jurisdiction in which their ownership or leasing of property or conduct of business legally requires such qualification, except where the failure to be so qualified, individually or in the aggregate, would not have a Material Adverse Effect. The term “Material Adverse Effect” as used herein means any material adverse effect on the condition (financial or other), net worth, business, affairs, management, prospects, results of operations or cash flow of the Company and its Subsidiaries, taken as a whole.1
Appears in 1 contract
Samples: Underwriting Agreement (Northern States Power Co /Wi/)
Representations and Warranties by the Company. The Company represents and warrants to the Sales Agent, the Forward Seller and the Forward Purchaser as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 8(o) of this Agreement, as of that date on which any Placement Notice is given hereunder, as of the time of each sale of any Issuance Shares or Forward Hedge Shares pursuant to this Agreement (the “Applicable Time”) and as of each Settlement Date (as defined below)to, and agrees with the Sales Agentwith, the Forward Seller and the Forward Purchaser, as followseach Underwriter that:
(1a) The Company satisfies all of meets the requirements of the Securities Act for use of Form S-3 under the Securities Act of 1933, as amended (the "Act") and has filed with the Securities and Exchange Commission (the "Commission") a registration statement on such Form, including a prospectus, for the registration under the Act of the Debt Securities, which registration statement has become effective. Such registration statement and prospectus may have been amended or supplemented from time to time prior to the date of this Agreement (which date is set forth in Schedule I hereto). Any such amendment or supplement was filed with the Commission and any such amendment has become effective. The Company will file with the Commission a prospectus supplement (the "Prospectus Supplement") relating to the Debt Securities pursuant to Rule 424 and/or Rule 434 under the Act. Copies of such registration statement and prospectus, any such amendment or supplement and all documents incorporated by reference therein which were filed with the Commission on or prior to the date of this Agreement have been delivered to you and copies of the Prospectus Supplement will be delivered to you promptly after it is filed with the Commission. Such registration statement as amended prior to the date of this Agreement, and such prospectus, as amended and supplemented prior to the date of this Agreement and as supplemented by the Prospectus Supplement, are hereinafter called the "Registration Statement" and the "Prospectus", respectively. Any reference herein to the Registration Statement or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 which were filed under the Securities Exchange Act of 1934, as amended (the "Exchange Act") on or before the date of this Agreement and, if the Company files any document pursuant to the Exchange Act after the date of this Agreement and prior to the termination of the offering of the Shares contemplated hereby Debt Securities by the Underwriters, which documents are deemed to be incorporated by reference into the Prospectus, the term "Prospectus" shall refer also to said prospectus as supplemented by the documents so filed from and after the offering and sale of Shares contemplated hereby complies time said documents are filed with the requirements of Rule 415 under the Securities ActCommission. At the time There are no contracts or documents of the initial filing Company that are required to be filed as exhibits to the Registration Statement or any documents incorporated by reference therein by the Act, the Exchange Act or the rules and regulations thereunder which have not been so filed.
(b) No order preventing or suspending the use of the Prospectus or the Registration Statement has been issued by the Commission and the Registration Statement, at the time date of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective amendmentthis Agreement, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Securities Act) made any offer relating to the Shares in reliance on the exemption of Rule 163 under the Securities Act and at the date hereof, the Company was and is a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act, including not having been and not being an “ineligible issuer,” as defined in Rule 405 under the Securities Act. The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 under the Securities Act, 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.” The Company has not received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting to the use of the automatic shelf registration statement form. The Company has paid or will pay the required Commission filing fees relating to the Shares within the time required by Rule 456(b)(1)(i) under the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Securities Act (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) under the Securities Act either in a post-effective amendment to the Registration Statement or on the cover page of the Prospectus).
(2) The Original Registration Statement became effective upon filing under Rule 462(e) under the Securities Act on February 12, 2020. 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 by the Commission, and any request on the part of the Commission for additional information has been complied with.
(3) Any offer that is a written communication relating to the Shares made prior to the initial filing of the Registration Statement by the Company or any person acting on its behalf (within the meaning, for this paragraph only, of Rule 163(c) under the Securities Act) has been filed with the Commission in accordance with the exemption provided by Rule 163 under the Securities Act and otherwise complied with the requirements of Rule 163 under the Securities Act, including without limitation the legending requirement.
(4) The Company has delivered or made available on XXXXX to each of the Sales Agent and the Forward Seller one complete copy of the Registration Statement and a copy of each consent and certificate of experts filed as a part thereof, and conformed copies of the Registration Statement (without exhibits) and the Prospectus, as amended or supplemented, in such quantities and at such places as the Sales Agent or the Forward Seller, as applicable, has reasonably requested. The Prospectus delivered to the Sales Agent and the Forward Seller for use in connection with the offering of Shares will, at the time of such delivery, be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(5) At the respective times the Registration Statement and each amendment thereto became effective, at each deemed effective date with respect to the Sales Agent, the Forward Seller or the Forward Purchaser pursuant to Rule 430B(f)(2) under the Securities Act, as the case may be, the Registration Statement complied and will comply in all material respects with the requirements of the Securities Act, the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act") and the respective rules and regulations thereunder and did not and will not contain 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. The preceding sentence does not apply to statements in or omissions from the Registration Statement or any amendment thereto in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, expressly for inclusion in any of the aforementioned documents.
(6) Neither the Prospectus nor any amendments or supplements thereto, at the time the Prospectus or any such amendment or supplement was issued, as of the date hereof, at each Representation Date, at each Applicable Time, and at each Settlement Date, as the case may be, included or will include an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from the Prospectus, as amended or supplemented, in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, expressly for inclusion in any of the aforementioned documents.
(7) Each document incorporated by reference in the Registration Statement or the Prospectus heretofore filed, when it was filed (or, if any amendment with respect to any such document was filed, when such amendment was filed), conformed in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder, and any further documents so filed and incorporated after the date of this Agreement will, when they are filed, conform in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder; no such document when it was filed (or, if an amendment with respect to any such document was filed, when such amendment was filed), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and, at the time the Prospectus Supplement is filed with the Commission and no such documentat the Closing Date (as hereinafter defined), when it is filed, the Prospectus will comply in all material respects with the Act and the rules and regulations thereunder and will not contain an any untrue statement of a material fact or will omit to state a any material fact required to be stated therein or necessary in order to make the statements therein not misleading; PROVIDED that the Company makes no representations or warranties as to (A) that part of the Registration Statement which shall constitute the Statement of Eligibility (Form T-1) under the Trust Indenture Act of the Trustee or (B) the information contained in or omitted from the Registration Statement or the Prospectus in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of any Underwriter through the Representatives specifically for use in connection with the preparation of the Registration Statement or Prospectus.
(8) Each Issuer Free Writing Prospectus (as defined herein)c) The documents incorporated by reference in the Prospectus, on its issue datewhen they were filed with the Commission, as conformed in all material respects to the requirements of each Applicable Timethe Exchange Act and the rules and regulations of the Commission thereunder, and as any documents so filed and incorporated by reference subsequent to the date of each Settlement Datethis Agreement will, when they are filed with the Commission, conform in all material respects to the requirements of the Exchange Act, and the rules and regulations of the Commission thereunder; and none of such documents include or until any earlier date that the issuer notified or notifies the Sales Agent or the Forward Seller as described in Section 8(d) hereof, did not, does not and will not include any information that conflicted, conflicts untrue statement of a material fact or omit or will conflict with omit to state any material fact required to be stated therein or necessary to make the information contained statements therein in the light of the circumstances under which they were made not misleading.
(d) PricewaterhouseCoopers LLP, which audited certain of the financial statements incorporated by reference in the Registration Statement, are independent public accountants as required by the Act and the rules and regulations of the Commission thereunder.
(e) The financial statements of the Company filed as a part of or incorporated by reference in the Registration Statement or Prospectus fairly present the financial position of the Company as of the dates indicated and the results of its operations and changes in financial position for the periods specified, and have been prepared in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods involved, except as disclosed in the Prospectus Supplement. The unaudited pro forma financial information incorporated by reference in the Registration Statement and the Prospectus complies in all material respects with the applicable accounting requirements of Rule 11-02 of Regulation S-X and the pro forma adjustments have been properly applied to the historical amounts in the compilation of such information.
(f) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Wisconsin with due corporate authority to carry on the business in which it is engaged and to own and operate the properties used by it in such business, as described in the Prospectus, including any incorporated document deemed ; the Company is qualified to do business as a foreign corporation and is in good standing under the laws of the State of Michigan; and the Company is not required by the nature of its business to be licensed or qualified as a part thereof that foreign corporation in any other state or jurisdiction; and, except as set forth in the Prospectus Supplement, the Company has all material licenses and approvals required at the date hereof to conduct its business.
(g) The authorized, issued and outstanding capital stock of the Company is as set forth in the Prospectus (except for subsequent issuance, if any, pursuant to reservations or agreements referred to therein); the shares of issued and outstanding capital stock of the Company have been duly and validly issued, are fully paid and non-assessable and are owned by Northern States Power Company, a Minnesota corporation.
(h) The Company has not sustained since the date of the latest audited financial statements included or incorporated by reference in the Prospectus any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus Supplement; and, since the respective dates as of which information is given in the Registration Statement and the Prospectus Supplement, the Company has not incurred any liabilities or obligations, direct or contingent, or entered into any transactions, not in the ordinary course of business, which are material to the Company, and there has not been superseded any material change in the capital stock or modified. The foregoing sentence does not apply to statements long-term debt of the Company or any material adverse change, or any development involving a prospective material adverse change, in or omissions from affecting the general affairs, management, financial position, stockholders' equity or results of operations of the Company, otherwise than as set forth or contemplated in the Prospectus Supplement.
(i) Neither the execution and delivery of this Agreement and the Indenture, the issuance and delivery of the Debt Securities, the consummation of the transactions herein contemplated, the fulfillment of the terms hereof, nor compliance with the terms and provisions of this Agreement, the Debt Securities and the Indenture will conflict with, or result in the breach of, any Issuer Free Writing Prospectus based upon and of the terms, provisions or conditions of the Restated Articles of Incorporation, as amended, or By-laws of the Company, or of any contract, agreement or instrument to which the Company is a party or in conformity with written information furnished which the Company has a beneficial interest or by which the Company is bound or of any order, rule or regulation applicable to the Company by of any court or of any federal or state regulatory body or administrative agency or other governmental body having jurisdiction over the Sales Agent, the Forward Seller Company or the Forward Purchaser, as applicable, specifically for use thereinover its properties.
(9j) This The Debt Securities have been duly authorized for issuance and sale pursuant to this Agreement and, when executed and authenticated in accordance with the Indenture and delivered and paid for as provided herein, will be duly issued and will constitute valid and binding obligations of the Company enforceable in accordance with their terms, except as limited by bankruptcy, insolvency and other laws affecting enforcement of creditors' rights, and will be entitled to the benefits of the Indenture which will be substantially in the form heretofore delivered to you.
(k) The Indenture has been duly authorizedand validly authorized by the Company and, when duly executed and delivered by the Company Company, assuming due authorization, execution and this Agreement constitutes delivery thereof by the Trustee, will constitute a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability enforcement thereof may be limited by bankruptcy, insolvencyinsolvency or other laws affecting enforcement of creditors' rights.
(l) The Public Service Commission of Wisconsin has issued its order authorizing the issuance and sale of the Debt Securities on terms consistent with this Agreement. Each other consent, fraudulent conveyanceapproval, reorganizationauthorization, moratorium order, registration or qualification of or with any regulatory public body, state or federal, that is, or will be at the Closing Date, necessary in connection with the issuance and sale of the Debt Securities pursuant to this Agreement has been or will be obtained, other similar laws relating than approvals that may be required under state securities laws.
(m) The Company has good and valid title to or affecting creditors’ all real and fixed property and leasehold rights generally which are owned by it, subject only to taxes and by general principles assessments not yet delinquent; the lien of equity the Supplemental and Restated Trust Indenture dated March 1, 1991, from the Company to Firstar Trust Company (the “Exceptions”"First Mortgage Indenture"). The Master Forward Confirmation will have been; as to parts of the Company's property, as certain easements, conditions, restrictions, leases, and similar encumbrances which do not affect the Company's use of such property in the usual course of its datebusiness, duly authorizedand certain minor defects in titles which are not material, executed and delivered defects in titles to certain properties which are not essential to the Company's business; and mechanics' lien claims being contested or not of record or for the satisfaction or discharge of which adequate provision has been made by the Company pursuant to the First Mortgage Indenture; and when executed any real property and delivered buildings held under lease by the Forward PurchaserCompany is held by it under valid, subsisting and enforceable leases with such Master Forward Confirmation will constitute exceptions as are not material and do not interfere with the use made and proposed to be made of such property and buildings by the Company.
(n) Other than as set forth or contemplated in the Prospectus, there are no legal or governmental proceedings pending to which the Company is a valid and legally binding obligation party or of which any property of the Company enforceable against is the Company in accordance with its termssubject which, except as enforceability may be limited by the Exceptions.
(10) The Company and its “Subsidiaries” (as defined in Section 6(a)(13) hereof) have been duly incorporated or organized and are validly existing as corporations or organizations in good standing under the laws of the states or other jurisdictions in which they are incorporated or organized, with full power and authority (corporate and other) to own, lease and operate their properties and conduct their businesses as described in the Prospectus and, with respect if determined adversely to the Company, to execute and deliverwould individually or in the aggregate have a material adverse effect on the financial position, and perform stockholders' equity or results of operations of the Company’s obligations under; and, this Agreement; to the best of the Company's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others.
(o) The Company has all necessary power under statutory provisions or permits to use its operating electric and gas properties.
(p) The Company has no "significant subsidiary", within the meaning of Rule 1.02(w) of Regulation S-X under the Act.
(q) The Company is not an "investment company" or an entity "controlled" by an "investment company", as such terms are defined in the Investment Company Act of 1940, as amended.
(r) Except as set forth in the Prospectus Supplement, the Company (A) is in compliance with any and its Subsidiaries are duly qualified all applicable federal, state and local laws and regulations relating to do business as foreign corporations the protection of human health and safety, the environment or organizations in good standing in each state hazardous or toxic substances or wastes, pollutants or contaminants ("Environmental Laws"), (B) has received all permits, licenses or other jurisdiction approvals required of it under applicable Environmental Laws to conduct its business and (C) is in which their ownership compliance with all terms and conditions of any such permits, licenses or leasing of property or conduct of business legally requires such qualificationapprovals, except where the such noncompliance with Environmental Laws, failure to be so qualifiedreceive required permits, individually licenses or other approvals or failure to comply with the terms and conditions of such permits, licenses or approvals would not, singly or in the aggregate, would not have a Material Adverse Effect. The term “Material Adverse Effect” as used herein means any material adverse effect on the condition (financial or other), net worth, business, affairs, management, prospects, results of operations or cash flow of the Company and its Subsidiaries, taken as a wholeCompany.
Appears in 1 contract
Samples: Underwriting Agreement (Northern States Power Co /Wi/)
Representations and Warranties by the Company. The Company represents and warrants to the Sales Agent, the Forward Seller and the Forward Purchaser as Merxxxx Xxnxx xx of the date hereof and as of each Representation the Closing Date (as defined below) on which a certificate is required to be delivered pursuant to Section 8(o) of this Agreement, as of that date on which any Placement Notice is given hereunder, as of the time of each sale of any Issuance Shares or Forward Hedge Shares pursuant to this Agreement (the “Applicable Time”) and as of each Settlement Date (as defined belowhereinafter defined), and agrees with the Sales AgentMerxxxx Xxnxx, the Forward Seller and the Forward Purchaser, as xs follows:
(1i) The Company satisfies all of has filed with the requirements of Securities and Exchange Commission (the "Commission") a registration statement on Form S-3 (No. 333-62782) under the Securities Act of 1933, as amended (the "Act"), which has become effective, for the registration under the Act of the Securities. The Company meets the requirements for use of Form S-3 for the offering of the Shares contemplated hereby and the offering and sale of Shares contemplated hereby complies with the requirements of Rule 415 under the Securities Act. At the time of the initial filing of the Registration Statement, at the time of the most recent amendment thereto 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), at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Securities Act) made any offer relating to the Shares in reliance on the exemption of Rule 163 under the Securities Act and at the date hereof, the Company was and is a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act, including not having been and not being an “ineligible issuer,” as defined in Rule 405 under the Securities Act. The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 under the Securities Act, 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.” The Company has not received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting to the use of the automatic shelf registration statement form. The Company has paid or will pay the required Commission filing fees relating to the Shares within the time required by Rule 456(b)(1)(i) under the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Securities Act (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) under the Securities Act either in a post-effective amendment to the Registration Statement or on the cover page of the Prospectus).
(2) The Original Registration Statement became effective upon filing under Rule 462(e) under the Securities Act on February 12, 2020. No stop order suspending the effectiveness of the Registration Statement 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 by the Commission, and any request on the part of the Commission for additional information has been complied with.
(3) Any offer that is . The Company proposes to file with the Commission pursuant to Rule 424 under the Act a written communication supplement or supplements to 2 the form of prospectus included in such registration statement relating to the Shares made prior Securities and the plan of distribution thereof. Such registration statement, including the exhibits thereto, as amended at the date of this Agreement, is hereinafter called the "Registration Statement"; such prospectus in the form in which it appears in the Registration Statement is hereinafter called the "Base Prospectus"; and such supplemented form of prospectus, in the form in which it shall first be filed with the Commission pursuant to Rule 424 (including the Base Prospectus as so supplemented) is hereinafter called the "Final Prospectus." Any preliminary form of the Final Prospectus which has heretofore been filed pursuant to Rule 424 is hereinafter called the "Preliminary Prospectus." Any reference herein to the initial Registration Statement, the Base Prospectus, any Preliminary Prospectus or the Final Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 which were filed under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), on or before the date of this Agreement, or the issue date of the Base Prospectus, any Preliminary Prospectus or the Final Prospectus, as the case may be; and any reference herein to the terms "amend," "amendment" or "supplement" with respect to the Registration Statement, the Base Prospectus, any Preliminary Prospectus or the Final Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act after the date of this Agreement, or the issue date of the Base Prospectus, any Preliminary Prospectus or the Final Prospectus, as the case may be, deemed to be incorporated therein by reference; each Preliminary Prospectus and the prospectuses filed as part of the Registration Statement by the Company as originally filed or as part of any person acting on its behalf (within the meaningamendment thereto, for this paragraph only, of or filed pursuant to Rule 163(c) 424 under the Securities Act) has been , complied when so filed in all material respects with the Commission in accordance with the exemption provided by Rule 163 under the Securities Act and otherwise complied with the requirements of Rule 163 under the Securities Act, including without limitation the legending requirement.
(4) The Company has delivered or made available on XXXXX to rules thereunder and each of the Sales Agent Preliminary Prospectus and the Forward Seller one complete copy of the Registration Statement and a copy of each consent and certificate of experts filed as a part thereof, and conformed copies of the Registration Statement (without exhibits) and the Prospectus, as amended or supplemented, in such quantities and at such places as the Sales Agent or the Forward Seller, as applicable, has reasonably requested. The Final Prospectus delivered to the Sales Agent and the Forward Seller for Merxxxx Xxnxx xxr use in connection with the this offering of Shares will, at the time of such delivery, be was identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXXEDGXX, except xxcept to the extent permitted by Regulation S-T.T;
(5ii) At As of the respective times date hereof, when the Final Prospectus is first filed or transmitted for filing pursuant to Rule 424 under the Act, when, prior to the Closing Date (as hereinafter defined), any amendment to the Registration Statement and each amendment thereto became effectivebecomes effective (including the filing of any document incorporated by reference in the Registration Statement), at each deemed effective date with respect when any supplement to the Sales AgentFinal Prospectus is filed with the Commission and at the Closing Date, (i) the Forward Seller or the Forward Purchaser pursuant to Rule 430B(f)(2) under the Securities ActRegistration Statement, as amended as of any such time, and the case may beFinal Prospectus, the Registration Statement complied and as amended or supplemented as of any such time, will comply in all material respects with the applicable requirements of the Securities ActAct and the Exchange Act and the respective rules thereunder and (ii) neither the Registration Statement, and did not and as amended as of any such time, nor the Final Prospectus, as amended or supplemented as of such time, will not contain 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. The preceding sentence does not apply to statements in or omissions from the Registration Statement or any amendment thereto in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, expressly for inclusion in any of the aforementioned documents.
(6) Neither the Prospectus nor any amendments or supplements thereto, at the time the Prospectus or any such amendment or supplement was issued, as of the date hereof, at each Representation Date, at each Applicable Time, and at each Settlement Date, as the case may be, included or will include an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from the Prospectus, as amended or supplemented, in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, expressly for inclusion in any of the aforementioned documents.
(7) Each document incorporated by reference in the Registration Statement or the Prospectus heretofore filed, when it was filed (or, if any amendment with respect to any such document was filed, when such amendment was filed), conformed in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder, and any further documents so filed and incorporated after the date of this Agreement will, when they are filed, conform in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder; no such document when it was filed (or, if an amendment with respect to any such document was filed, when such amendment was filed), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and no such document, when it is filed, will contain an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(8) Each Issuer Free Writing Prospectus (as defined herein), on its issue date, as of each Applicable Time, and as of each Settlement Date, or until any earlier date that the issuer notified or notifies the Sales Agent or the Forward Seller as described in Section 8(d) hereof, 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 incorporated document deemed to be a part thereof that has not been superseded or modified. The foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with written information furnished to the Company by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, specifically for use therein.
(9) This Agreement has been duly authorized, executed and delivered by the Company and this Agreement constitutes a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and by general principles of equity (the “Exceptions”). The Master Forward Confirmation will have been, as of its date, duly authorized, executed and delivered by the Company and when executed and delivered by the Forward Purchaser, such Master Forward Confirmation will constitute a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by the Exceptions.
(10) The Company and its “Subsidiaries” (as defined in Section 6(a)(13) hereof) have been duly incorporated or organized and are validly existing as corporations or organizations in good standing under the laws of the states or other jurisdictions in which they are incorporated or organized, with full power and authority (corporate and other) to own, lease and operate their properties and conduct their businesses as described in the Prospectus and, with respect to the Company, to execute and deliver, and perform the Company’s obligations under, this Agreement; the Company and its Subsidiaries are duly qualified to do business as foreign corporations or organizations in good standing in each state or other jurisdiction in which their ownership or leasing of property or conduct of business legally requires such qualification, except where the failure to be so qualified, individually or in the aggregate, would not have a Material Adverse Effect. The term “Material Adverse Effect” as used herein means any material adverse effect on the condition (financial or other), net worth, business, affairs, management, prospects, results of operations or cash flow of the Company and its Subsidiaries, taken as a whole.fact
Appears in 1 contract
Samples: Underwriting Agreement (Metlife Inc)
Representations and Warranties by the Company. The Company represents and warrants to the Sales Agent, the Forward Seller and the Forward Purchaser Xxxxxxx Xxxxx as of (i) the date hereof and as of hereof, (ii) each date on which a Placement Notice becomes effective pursuant to Section 2 hereof, (iii) each Representation Date (as defined belowherein) on which a certificate is certificates are required to be delivered pursuant to Section 8(o7(o) of this Agreement, as of that date on which any Placement Notice is given hereunder, as of (iv) the time of each sale of any Issuance Shares Securities or Forward Hedge Shares any securities pursuant to this Agreement (the “Applicable Time”) and as of (v) each Settlement Date (as defined below), and agrees with the Sales Agent, the Forward Seller and the Forward PurchaserXxxxxxx Xxxxx, as follows:follows (provided, that the representations and warranties of the Company set forth in Section 5(36)(ii) are only made as of the date hereof):
(1) The Company satisfies all of the requirements of Securities have been duly registered under the Securities Act for use of Form S-3 for pursuant to the offering of the Shares contemplated hereby and the offering and sale of Shares contemplated hereby complies with the requirements of Rule 415 Registration Statement. The Registration Statement has become effective under the Securities Act. At , or, with respect to any registration statement to be filed to register the time of the initial filing of the Registration Statement, at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) offer and sale of the Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(dRule 462(b) of the Exchange Act or form of prospectus), at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Securities Act) made any offer relating to the Shares in reliance on the exemption of Rule 163 under the Securities Act and at the date hereof, the Company was and is a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act, including not having been and not being an the documents incorporated by reference therein (a “ineligible issuer,” as defined in Rule 405 under the Securities Act. The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 under the Securities Act, and the Shares, since their registration on the 462(b) Registration Statement”), have been and remain eligible for registration by the Company on a Rule 405 “automatic shelf registration statement.” The Company has not received from will be filed with the Commission any notice pursuant to Rule 401(g)(2) and become effective under the Securities Act objecting prior to the time of any sale of Securities pursuant to such Rule 462(b) Registration Statement, and no stop order preventing or suspending the use of any base prospectus, the automatic shelf registration statement form. The Company has paid Prospectus Supplement, the Prospectus or will pay the required Commission filing fees relating to the Shares within the time required by Rule 456(b)(1)(i) under the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Securities Act any Permitted Free Writing Prospectus (includingas defined below), if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) under the Securities Act either in a post-effective amendment to the Registration Statement or on the cover page of the Prospectus).
(2) The Original Registration Statement became effective upon filing under Rule 462(e) under the Securities Act on February 12, 2020. No stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act or any Rule 462(b) Registration Statement and no proceedings for that such purpose have been instituted or are pending or, to the knowledge of the Company, are contemplated by the Commission, and any request on the part of the Commission for additional information has been complied with.
(3) Any offer that is a written communication relating to the Shares made prior to the initial filing of the Registration Statement by the Company or any person acting on its behalf (within the meaning, for this paragraph only, of Rule 163(c) under the Securities Act) has been filed with the Commission in accordance with the exemption provided by Rule 163 under the Securities Act and otherwise complied with the requirements of Rule 163 under the Securities Act, including without limitation the legending requirement.
(4) The Company has delivered or made available on XXXXX to each of the Sales Agent and the Forward Seller one complete copy of the Registration Statement and a copy of each consent and certificate of experts filed as a part thereof, and conformed copies of the Registration Statement (without exhibits) and the Prospectus, as amended or supplemented, in such quantities and at such places as the Sales Agent or the Forward Seller, as applicable, has reasonably requested. The Prospectus delivered to the Sales Agent and the Forward Seller for use in connection with the offering of Shares will, at the time of such delivery, be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(5) At the respective times each of the Registration Statement, any Rule 462(b) Registration Statement and each amendment any post-effective amendments thereto became effective, at each deemed or becomes effective and as of the date with respect to the Sales Agent, the Forward Seller or the Forward Purchaser pursuant to Rule 430B(f)(2) under the Securities Act, as the case may behereof, the Registration Statement, any Rule 462(b) Registration Statement and any amendments and supplements thereto complied and will comply in all material respects with the requirements of the Securities Act. The conditions for the use of Form S-3, as set forth in the General Instructions thereto, have been complied with and the Registration Statement meets, and the offering and sale of the Securities as contemplated hereby complies with, the requirements of Rule 415 under the Securities Act (including without limitation, Rule 415(a)(5)). The initial effective date of the Registration Statement was not earlier than the date three years before the date of this Agreement. The Registration Statement, as of the date hereof and each effective date with respect thereto, did not 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 in order to make the statements therein not misleading. The preceding sentence does not apply to statements in or omissions from the Registration Statement or any amendment thereto in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, expressly for inclusion in any of the aforementioned documents.
(6) Neither the Prospectus nor any amendments or supplements thereto, at the time the Prospectus or any such amendment or supplement was issued, as of the date hereof, at each Representation Date, at each Applicable Timetheir respective dates, and at each Applicable Time and Settlement Date, as the case may be, included or will include an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The representations and warranties set forth in the immediately preceding sentence does paragraph shall not apply to statements in or omissions from the Registration Statement or the Prospectus, as amended or supplemented, made in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, Xxxxxxx Xxxxx expressly for inclusion in any of the aforementioned documents.
(7) Each document incorporated by reference in the Registration Statement or the Prospectus heretofore filed, when it was filed (or, if any amendment with respect to any such document was filed, when such amendment was filed), conformed in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder, and any further documents so filed and incorporated after the date of this Agreement will, when they are filed, conform in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder; no such document when it was filed (or, if an amendment with respect to any such document was filed, when such amendment was filed), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and no such document, when it is filed, will contain an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(8) Each Issuer Free Writing Prospectus (as defined herein), on its issue date, as of each Applicable Time, and as of each Settlement Date, or until any earlier date that the issuer notified or notifies the Sales Agent or the Forward Seller as described in Section 8(d) hereof, 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 incorporated document deemed to be a part thereof that has not been superseded or modified. The foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with written information furnished to the Company by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, specifically for use therein.
(9) This Agreement has been duly authorized, executed it being understood and delivered agreed that the only such information furnished by the Company and this Agreement constitutes a valid and legally binding obligation Xxxxxxx Xxxxx consists of the Company enforceable against the Company in accordance with its terms, except information described as enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and by general principles of equity (the “Exceptions”). The Master Forward Confirmation will have been, as of its date, duly authorized, executed and delivered by the Company and when executed and delivered by the Forward Purchaser, such Master Forward Confirmation will constitute a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by the Exceptions.
(10) The Company and its “Subsidiaries” (as defined in Section 6(a)(1310(b) hereof) have been duly incorporated or organized and are validly existing as corporations or organizations in good standing under the laws of the states or other jurisdictions in which they are incorporated or organized, with full power and authority (corporate and other) to own, lease and operate their properties and conduct their businesses as described in the Prospectus and, with respect to the Company, to execute and deliver, and perform the Company’s obligations under, this Agreement; the Company and its Subsidiaries are duly qualified to do business as foreign corporations or organizations in good standing in each state or other jurisdiction in which their ownership or leasing of property or conduct of business legally requires such qualification, except where the failure to be so qualified, individually or in the aggregate, would not have a Material Adverse Effect. The term “Material Adverse Effect” as used herein means any material adverse effect on the condition (financial or other), net worth, business, affairs, management, prospects, results of operations or cash flow of the Company and its Subsidiaries, taken as a whole.
Appears in 1 contract
Samples: Equity Distribution Agreement (Blackstone Mortgage Trust, Inc.)
Representations and Warranties by the Company. The Company hereby covenants, represents and warrants to the Sales Agent, the Forward Seller and the Forward Purchaser as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 8(o) of this Agreement, as of that date on which any Placement Notice is given hereunder, as of the time of each sale of any Issuance Shares or Forward Hedge Shares pursuant to this Agreement (the “Applicable Time”) and as of each Settlement Date (as defined below), and agrees with the Sales Agent, the Forward Seller and the Forward Purchaser, as followsWarrantholder that:
(1a) The Company satisfies all it is a corporation organized and validly existing under the laws of the requirements State of the Securities Act for use of Form S-3 for the offering of the Shares contemplated hereby and the offering and sale of Shares contemplated hereby complies with the requirements of Rule 415 under the Securities Act. At the time of the initial filing of the Registration Statement, at the time of the most recent amendment thereto 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), at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Securities Act) made any offer relating to the Shares in reliance on the exemption of Rule 163 under the Securities Act and at the date hereof, the Company was and is a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act, including not having been and not being an “ineligible issuer,” as defined in Rule 405 under the Securities Act. The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 under the Securities Act, 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.” The Company has not received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting to the use of the automatic shelf registration statement form. The Company has paid or will pay the required Commission filing fees relating to the Shares within the time required by Rule 456(b)(1)(i) under the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Securities Act (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) under the Securities Act either in a post-effective amendment to the Registration Statement or on the cover page of the Prospectus).Maryland;
(2b) The Original Registration Statement became effective upon filing under Rule 462(e) under the Securities Act on February 12, 2020. 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 by the Commission, and any request on the part of the Commission for additional information has been complied with.
(3) Any offer that is a written communication relating to the Shares made prior to the initial filing of the Registration Statement by the Company or any person acting on its behalf (within the meaning, for this paragraph only, of Rule 163(c) under the Securities Act) has been filed with the Commission in accordance with the exemption provided by Rule 163 under the Securities Act and otherwise complied with the requirements of Rule 163 under the Securities Act, including without limitation the legending requirement.
(4) The Company has delivered or made available on XXXXX to each of the Sales Agent and the Forward Seller one complete copy of the Registration Statement and a copy of each consent and certificate of experts filed as a part thereof, and conformed copies of the Registration Statement (without exhibits) and the Prospectus, as amended or supplemented, in such quantities and at such places as the Sales Agent or the Forward Seller, as applicable, has reasonably requested. The Prospectus delivered to the Sales Agent and the Forward Seller for use in connection with the offering of Shares will, at the time of such delivery, be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(5) At the respective times the Registration Statement and each amendment thereto became effective, at each deemed effective date with respect to the Sales Agent, the Forward Seller or the Forward Purchaser pursuant to Rule 430B(f)(2) under the Securities Act, as the case may be, the Registration Statement complied and will comply in all material respects with the requirements of the Securities Act, and did not 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. The preceding sentence does not apply to statements in or omissions from the Registration Statement or any amendment thereto in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, expressly for inclusion in any of the aforementioned documents.
(6) Neither the Prospectus nor any amendments or supplements thereto, at the time the Prospectus or any such amendment or supplement was issued, as of the date hereof, at each Representation Date, at each Applicable Time, and at each Settlement Date, as the case may be, included or will include an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from the Prospectus, as amended or supplemented, in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, expressly for inclusion in any of the aforementioned documents.
(7) Each document incorporated by reference in the Registration Statement or the Prospectus heretofore filed, when it was filed (or, if any amendment with respect to any such document was filed, when such amendment was filed), conformed in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder, and any further documents so filed and incorporated after the date of this Agreement will, when they are filed, conform in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder; no such document when it was filed (or, if an amendment with respect to any such document was filed, when such amendment was filed), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and no such document, when it is filed, will contain an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(8) Each Issuer Free Writing Prospectus (as defined herein), on its issue date, as of each Applicable Time, and as of each Settlement Date, or until any earlier date that the issuer notified or notifies the Sales Agent or the Forward Seller as described in Section 8(d) hereof, 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 incorporated document deemed to be a part thereof that has not been superseded or modified. The foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with written information furnished to the Company by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, specifically for use therein.
(9) This Agreement has been duly authorized, executed and delivered by on its behalf and constitutes the Company and this Agreement constitutes a legal, valid and legally binding obligation of the Company enforceable against Company;
(c) the execution, delivery and performance of this Agreement by the Company does not and will not violate any applicable law or regulation and does not require the consent of any governmental or other regulatory body except for such consents and approvals as have been obtained and are in full force and effect;
(d) it has not adopted, and will not adopt, any resolution electing to be, or to make any share of Stock, subject to any of the provisions of the Maryland Control Share Acquisition Act or the Maryland Business Combination Act (as amended or supplemented from time to time and collectively, the “Maryland Interested Shareholder Statutes”) and all shares of Stock currently outstanding or issued in the future are and will be exempt from the Maryland Interested Shareholder Statutes to the fullest extent permitted by Maryland law;
(e) the Board has on or prior to the Closing Date (i) on the basis of representations and warranties of the Warrantholders in Section 18(c), duly exempted the Warrantholders from the ownership limitation imposed by section 5.2(b)(i)(w) of the Company’s charter (as amended and restated as of the date hereof, the “Company’s Articles”) pursuant to and in accordance with its termsArticle 5.2(f) the Company’s Articles, except as enforceability may be limited by bankruptcy(ii) approved, insolvencyand the Audit Committee of the Board has expressly approved, fraudulent conveyance, reorganization, moratorium and other similar laws relating the exception set forth in Paragraph 312.05 of the NYSE Listed Company Manual to or affecting creditors’ rights generally and by general principles of equity the shareholder approval policy set forth in Paragraph 312.03 thereof (the “ExceptionsException”). The Master Forward Confirmation will have been, as of its date, duly authorized, executed ) and delivered by (iii) directed that there be promptly mailed (and in no event later than 10 days prior to the Company and when executed and delivered by the Forward Purchaser, such Master Forward Confirmation will constitute a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by the Exceptions.
(10) The Company and its “Subsidiaries” (as defined in Section 6(a)(13) hereof) have been duly incorporated or organized and are validly existing as corporations or organizations in good standing under the laws of the states or other jurisdictions in which they are incorporated or organized, with full power and authority (corporate and otherInitial Exercise Date) to own, lease and operate their properties and conduct their businesses as described in the Prospectus and, with respect all shareholders a letter alerting them to the Company, ’s omission to execute seek the shareholder approval that would otherwise be required absent the Exception and deliverindicating that the Audit Committee of the Board has expressly approved the Exception; and
(f) all transactions contemplated by this Agreement are in compliance with, and perform not in violation of any applicable securities laws, regulations or rules, including, without limitation, the Company’s obligations under, this Agreement; Securities Act or the Company and its Subsidiaries are duly qualified to do business as foreign corporations or organizations in good standing in each state or other jurisdiction in which their ownership or leasing of property or conduct of business legally requires such qualification, except where the failure to be so qualified, individually or in the aggregate, would not have a Material Adverse Effect. The term “Material Adverse Effect” as used herein means any material adverse effect on the condition (financial or other), net worth, business, affairs, management, prospects, results of operations or cash flow of the Company and its Subsidiaries, taken as a wholeExchange Act.
Appears in 1 contract
Samples: Capital Stock Warrant Agreement (Luminent Mortgage Capital Inc)
Representations and Warranties by the Company. The Company represents and warrants to the Sales Agent, the Forward Seller and the Forward Purchaser as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 8(o) of this Agreement, as of that date on which any Placement Notice is given hereunder, as of the time of each sale of any Issuance Shares or Forward Hedge Shares pursuant to this Agreement (the “Applicable Time”) and as of each Settlement Date (as defined below)to, and agrees with the Sales Agentwith, the Forward Seller and the Forward Purchaser, as followseach Underwriter that:
(1a) The Company satisfies all of meets the requirements of the Securities Act for use of Form S-3 under the Securities Act of 1933, as amended (the "Act"), and has filed with the Securities and Exchange Commission (the "Commission") a registration statement on such Form, including a prospectus, for the registration under the Act of the Bonds, which registration statement has become effective. Such registration statement and prospectus may have been amended or supplemented from time to time prior to the date of this Agreement (which date is set forth in Schedule I hereto). Any such amendment or supplement was filed with the Commission and any such amendment has become effective. Each prospectus used before the registration statement became effective, and any prospectus that omitted the offering terms that was used after such effectiveness and prior to the execution and delivery of this Agreement, is herein called a "preliminary prospectus". The Company will file with the Commission a prospectus supplement (the "Prospectus Supplement") relating to the Bonds pursuant to Rule 424 and/or Rule 434 under the Act. Copies of such registration statement and prospectus, any such amendment or supplement and all documents incorporated by reference therein which were filed with the Commission on or prior to the date of this Agreement have been delivered to you and copies of the Prospectus Supplement will be delivered to you promptly after it is filed with the Commission. Such registration statement, as amended prior to the date of this Agreement, and such prospectus, as amended and supplemented prior to the date of this Agreement and as supplemented by the Prospectus Supplement, are hereinafter called the "Registration Statement" and the "Prospectus", respectively. Any reference herein to the Registration Statement or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 which were filed under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), on or before the date of this Agreement and, if the Company files any document pursuant to the Exchange Act after the date of this Agreement and prior to the termination of the offering of the Shares contemplated hereby Bonds by the Underwriters, which documents are deemed to be incorporated by reference into the Prospectus, the term "Prospectus" shall refer also to said prospectus as supplemented by the documents so filed from and after the offering and sale of Shares contemplated hereby complies time said documents are filed with the requirements of Rule 415 under the Securities ActCommission. At the time There are no contracts or documents of the initial filing Company or any of its subsidiaries that are required to be filed as exhibits to the Registration Statement or any documents incorporated by reference therein by the Act, the Exchange Act or the rules and regulations thereunder which have not been so filed.
(b) No order preventing or suspending the use of the Prospectus or the Registration Statement has been issued by the Commission and the Registration Statement, at the time date of this Agreement, complied in all material respects with the requirements of the most recent amendment thereto for Act, the purposes Trust Indenture Act of complying with Section 10(a)(3) 1939, as amended (the "Trust Indenture Act"), and the respective rules and regulations of the Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant Commission thereunder and did not contain any untrue statement of a material fact or omit any material fact required to Section 13 be stated therein or 15(d) of necessary in order to make the Exchange Act or form of prospectus)statements therein not misleading; and, at the time the Prospectus Supplement is filed with the Commission and at the Closing Date (as hereinafter defined), the Prospectus will comply in all material respects with the Act and the rules and regulations of the Commission thereunder and will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided that the Company makes no representations or any person acting on its behalf warranties as to (within A) that part of the meaning, for this clause only, Registration Statement which shall constitute the Statement of Rule 163(cEligibility (Form T-1) under the Securities Act) made any offer relating to the Shares in reliance on the exemption of Rule 163 under the Securities Trust Indenture Act and at the date hereof, the Company was and is a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act, including not having been and not being an “ineligible issuer,” as defined in Rule 405 under the Securities Act. The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 under the Securities Act, 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.” The Company has not received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting to the use of the automatic shelf registration statement form. The Company has paid Trustee or will pay (B) the required Commission filing fees relating to the Shares within the time required by Rule 456(b)(1)(i) under the Securities Act without regard to the proviso therein and otherwise information contained in accordance with Rules 456(b) and 457(r) under the Securities Act (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) under the Securities Act either in a post-effective amendment to or omitted from the Registration Statement or the Prospectus in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of any Underwriter through the cover page of Representatives specifically for use in the Prospectus).
(2) The Original Registration Statement became effective upon filing under Rule 462(e) under or Prospectus. Each preliminary prospectus and the Securities Act on February 12, 2020. No stop order suspending the effectiveness prospectus filed as part of the Registration Statement has been issued as originally filed or as part of any amendment thereto, or filed pursuant to Rule 424 of the Act, complied when so filed in all material respects with the rules 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 by the CommissionAct, and any request on the part of the Commission for additional information has been complied with.
(3) Any offer that is a written communication relating to the Shares made prior to the initial filing of the Registration Statement by the Company or any person acting on its behalf (within the meaning, for this paragraph only, of Rule 163(c) under the Securities Act) has been filed with the Commission in accordance with the exemption provided by Rule 163 under the Securities Act and otherwise complied with the requirements of Rule 163 under the Securities Act, including without limitation the legending requirement.
(4) The Company has delivered or made available on XXXXX to each of the Sales Agent preliminary prospectus and the Forward Seller one complete copy of the Registration Statement and a copy of each consent and certificate of experts filed as a part thereof, and conformed copies of the Registration Statement (without exhibits) and the Prospectus, as amended or supplemented, in such quantities and at such places as the Sales Agent or the Forward Seller, as applicable, has reasonably requested. The Prospectus delivered to the Sales Agent and the Forward Seller Underwriters for use in connection with the this offering of Shares will, at the time of such delivery, be was identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(5c) At The documents incorporated by reference in the respective times Prospectus, when they were filed with the Registration Statement and each amendment thereto became effectiveCommission, at each deemed effective date with respect to the Sales Agent, the Forward Seller or the Forward Purchaser pursuant to Rule 430B(f)(2) under the Securities Act, as the case may be, the Registration Statement complied and will comply conformed in all material respects with to the requirements of the Securities Exchange Act and the rules and regulations of the Commission thereunder, and any documents so filed and incorporated by reference subsequent to the date of this Agreement will, when they are filed with the Commission, conform in all material respects to the requirements of the Exchange Act, and did not the rules and regulations of the Commission thereunder; and none of such documents include or will not contain an include any untrue statement of a material fact or omit or will omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading. The preceding sentence does not apply to statements in or omissions from the Registration Statement or any amendment thereto in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, expressly for inclusion in any of the aforementioned documents.
(6) Neither the Prospectus nor any amendments or supplements thereto, at the time the Prospectus or any such amendment or supplement was issued, as of the date hereof, at each Representation Date, at each Applicable Time, and at each Settlement Date, as the case may be, included or will include an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, made not misleading. The preceding sentence does not apply to statements in or omissions from the Prospectus, as amended or supplemented, in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, expressly for inclusion in any of the aforementioned documents.
(7d) Each document Deloitte & Touche LLP, which audited the consolidated financial statements and the related financial statement schedule as of and for the year ended December 31, 2002, and Xxxxxx Xxxxxxxx LLP, which audited the consolidated financial statements and the related financial statement schedule as of and for the years ended December 31, 2001 and December 31, 2000, each of which are incorporated by reference in the Registration Statement and Prospectus from the Company's Annual Report on Form 10-K for the year ended December 31, 2002, are independent auditors as required by the Act and the rules and regulations of the Commission thereunder.
(e) The financial statements of the Company and its consolidated subsidiaries filed as a part of or incorporated by reference in the Registration Statement or Prospectus fairly present the financial position of the Company and its consolidated subsidiaries as of the dates indicated and the results of their operations and changes in financial position for the periods specified, and have been prepared in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods involved, except as disclosed in the Prospectus heretofore filedSupplement.
(f) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Minnesota with due corporate authority to carry on the business in which it is engaged and to own and operate the properties used by it in such business, when it was filed (oras described in the Prospectus; the Company is qualified to do business as a foreign corporation and is in good standing under the laws of the States of North Dakota and South Dakota; and the Company is not required by the nature of its business to be licensed or qualified as a foreign corporation in any other state or jurisdiction; and, if any amendment with respect to any such document was filedexcept as set forth in the Prospectus Supplement, when such amendment was filed), conformed in the Company has all material respects with licenses and approvals required at the requirements date hereof to conduct its business.
(g) The Company has no subsidiaries which would be deemed significant subsidiaries under Regulation S-X.
(h) Neither the Company nor any of the Exchange Act and the rules and regulations thereunder, and any further documents so filed and incorporated after its subsidiaries has sustained since the date of this Agreement willthe latest audited financial statements included or incorporated by reference in the Prospectus any material loss or interference with its business from fire, when they are filedexplosion, conform flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in all material respects with the requirements of Prospectus Supplement; and, since the Exchange Act and the rules and regulations thereunder; no such document when it was filed (or, if an amendment with respect to any such document was filed, when such amendment was filed), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and no such document, when it is filed, will contain an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(8) Each Issuer Free Writing Prospectus (as defined herein), on its issue date, respective dates as of each Applicable Time, and as of each Settlement Date, or until any earlier date that the issuer notified or notifies the Sales Agent or the Forward Seller as described in Section 8(d) hereof, did not, does not and will not include any which information that conflicted, conflicts or will conflict with the information contained is given in the Registration Statement and the Prospectus Supplement, neither the Company nor any of its subsidiaries has incurred any liabilities or obligations, direct or contingent, or entered into any transactions, not in the Prospectusordinary course of business, including any incorporated document deemed which are material to be a part thereof that the Company and its subsidiaries, and there has not been superseded any material change in the capital stock or modified. The foregoing sentence does not apply to statements long-term debt of the Company or any of its subsidiaries or any material adverse change, or any development involving a prospective material adverse change, in or omissions from affecting the general affairs, management, financial position, stockholders' equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Prospectus Supplement.
(i) Neither the execution and delivery of this Agreement and the Indenture, the issuance and delivery of the Bonds, the consummation of the transactions herein contemplated, the fulfillment of the terms hereof, nor compliance with the terms and provisions of this Agreement, the Bonds and the Indenture will conflict with, or result in the breach of, any Issuer Free Writing Prospectus based upon and of the terms, provisions or conditions of the Articles of Incorporation, as amended, or by-laws of the Company, or of any contract, agreement or instrument to which the Company is a party or in conformity with written information furnished which the Company has a beneficial interest or by which the Company is bound or of any order, rule or regulation applicable to the Company by of any court or of any federal or state regulatory body or administrative agency or other governmental body having jurisdiction over the Sales Agent, the Forward Seller Company or the Forward Purchaser, as applicable, specifically for use thereinover its properties.
(9j) The Bonds have been duly authorized for issuance and sale pursuant to this Agreement and, when executed and authenticated in accordance with the Indenture and delivered and paid for as provided herein, will be duly issued and will constitute valid and binding obligations of the Company enforceable in accordance with their terms, except as limited by bankruptcy, insolvency and other laws affecting enforcement of creditors' rights, and will be entitled to the benefits of the Indenture which will be substantially in the form heretofore delivered to you.
(k) The Indenture has been duly and validly authorized by the Company and, when duly executed and delivered by the Company, assuming due authorization, execution and delivery thereof by the Trustee, will constitute a valid and binding obligation of the Company enforceable in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency or other laws affecting enforcement of creditors' rights.
(l) This Agreement has been duly authorized, executed and delivered by the Company Company.
(m) The Minnesota Public Utilities Commission has issued its order approving the Company's capital structure which order authorizes the issuance of the Bonds, and no consent, approval, authorization or order of, or filing or registration with, any court having jurisdiction over the Company, and no other approval of any regulatory public body, state or federal, is, or will be at the Closing Date (as hereinafter defined), necessary in connection with the issuance and sale of the Bonds pursuant to this Agreement constitutes or the execution, delivery and performance of this Agreement and the Indenture, other than approvals that may be required under state securities laws.
(n) The Company has good and valid title to all real and fixed property and leasehold rights described or enumerated in the Indenture (except such properties as have been released from the lien thereof in accordance with the terms thereof) and title to all personal property owned by it, subject only to taxes and assessments not yet delinquent; the lien of the Indenture; as to parts of the Company's property, certain easements, conditions, restrictions, leases, and similar encumbrances which do not affect the Company's use of such property in the usual course of its business, and certain minor defects in titles which are not material, and defects in titles to certain properties which are not essential to the Company's business; and mechanics' lien claims being contested or not of record or for the satisfaction or discharge of which adequate provision has been made by the Company; and any real property and buildings held under lease by the Company are held by it under valid, subsisting and enforceable leases with such exceptions as are not material and do not interfere with the use made and proposed to be made of such property and buildings by the Company.
(o) Other than as set forth or contemplated in the Prospectus as of the date hereof, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a valid and legally binding obligation party or of which any property of the Company enforceable against or any of its subsidiaries is the subject which, if determined adversely to the Company in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and by general principles of equity (the “Exceptions”). The Master Forward Confirmation will have been, as any of its datesubsidiaries, duly authorized, executed and delivered by the Company and when executed and delivered by the Forward Purchaser, such Master Forward Confirmation will constitute a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by the Exceptions.
(10) The Company and its “Subsidiaries” (as defined in Section 6(a)(13) hereof) have been duly incorporated would individually or organized and are validly existing as corporations or organizations in good standing under the laws of the states or other jurisdictions in which they are incorporated or organized, with full power and authority (corporate and other) to own, lease and operate their properties and conduct their businesses as described in the Prospectus andaggregate have a material adverse effect on the business, with respect to the Companyconsolidated financial position, to execute and deliver, and perform the Company’s obligations under, this Agreement; stockholders' equity or results of operations of the Company and its Subsidiaries subsidiaries; and, to the best of the Company's knowledge, no such proceedings are duly qualified threatened or contemplated by governmental authorities or threatened by others.
(p) The Company is not an "investment company" or an entity "controlled" by an "investment company," as such terms are defined in the Investment Company Act of 1940, as amended.
(q) Except as set forth in the Prospectus Supplement, the Company and its subsidiaries (A) are in compliance with any and all applicable federal, state and local laws and regulations relating to do business as foreign corporations the protection of human health and safety, the environment or organizations in good standing in each state hazardous or toxic substances or wastes, pollutants or contaminants ("Environmental Laws"), (B) have received all permits, licenses or other jurisdiction approvals required of them under applicable Environmental Laws to conduct their respective business and (C) are in which their ownership compliance with all terms and conditions of any such permits, licenses or leasing of property or conduct of business legally requires such qualificationapprovals, except where the such noncompliance with Environmental Laws, failure to be so qualifiedreceive required permits, individually licenses or other approvals or failure to comply with the terms and conditions of such permits, licenses or approvals would not, singly or in the aggregate, would not have a Material Adverse Effect. The term “Material Adverse Effect” as used herein means any material adverse effect on the condition (financial or other), net worth, business, affairsconsolidated financial position, management, prospects, stockholders' equity or results of operations or cash flow of the Company and its Subsidiariessubsidiaries, taken as a whole.
Appears in 1 contract
Representations and Warranties by the Company. The Company represents and warrants to the Sales Agent, the Forward Seller and the Forward Purchaser as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 8(o) of this Agreement, as of that date on which any Placement Notice is given hereunder, as of the time of each sale of any Issuance Shares or Forward Hedge Shares pursuant to this Agreement (the “Applicable Time”) and as of each Settlement Date (as defined below)to, and agrees with the Sales Agentwith, the Forward Seller and the Forward Purchaser, as followseach Underwriter that:
(1a) The Company satisfies all of meets the requirements of the Securities Act for use of Form S-3 under the Securities Act of 1933, as amended (the "Act") and has filed with the Securities and Exchange Commission (the "Commission") a registration statement on such Form, including a prospectus, for the registration under the Act of the Debt Securities, which registration statement has become effective. Such registration statement and prospectus may have been amended or supplemented from time to time prior to the date of this Agreement (which date is set forth in Schedule I hereto). Any such amendment or supplement was filed with the Commission and any such amendment has become effective. Each prospectus used before the registration statement became effective, and any prospectus that omitted the offering terms that was used after such effectiveness and prior to the execution and delivery of this Agreement, is herein called a "preliminary prospectus". The Company will file with the Commission a prospectus supplement (the "Prospectus Supplement") relating to the Debt Securities pursuant to Rule 424 and/or Rule 434 under the Act. Copies of such registration statement and prospectus, any such amendment or supplement and all documents incorporated by reference therein which were filed with the Commission on or prior to the date of this Agreement have been delivered to you and copies of the Prospectus Supplement will be delivered to you promptly after it is filed with the Commission. Such registration statement, as amended prior to the date of this Agreement, and such prospectus, as amended and supplemented prior to the date of this Agreement and as supplemented by the Prospectus Supplement, are hereinafter called the "Registration Statement" and the "Prospectus", respectively. Any reference herein to the Registration Statement or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 which were filed under the Securities Exchange Act of 1934, as amended (the "Exchange Act") on or before the date of this Agreement and, if the Company files any document pursuant to the Exchange Act after the date of this Agreement and prior to the termination of the offering of the Shares contemplated hereby Debt Securities by the Underwriters, which documents are deemed to be incorporated by reference into the Prospectus, the term "Prospectus" shall refer also to said prospectus as supplemented by the documents so filed from and after the offering and sale of Shares contemplated hereby complies time said documents are filed with the requirements of Rule 415 under the Securities ActCommission. At the time There are no contracts or documents of the initial filing Company or any of its subsidiaries that are required to be filed as exhibits to the Registration Statement or any documents incorporated by reference therein by the Act, the Exchange Act or the rules and regulations thereunder which have not been so filed.
(b) No order preventing or suspending the use of the Prospectus or the Registration Statement has been issued by the Commission and the Registration Statement, at the time date of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective amendmentthis Agreement, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Securities Act) made any offer relating to the Shares in reliance on the exemption of Rule 163 under the Securities Act and at the date hereof, the Company was and is a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act, including not having been and not being an “ineligible issuer,” as defined in Rule 405 under the Securities Act. The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 under the Securities Act, 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.” The Company has not received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting to the use of the automatic shelf registration statement form. The Company has paid or will pay the required Commission filing fees relating to the Shares within the time required by Rule 456(b)(1)(i) under the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Securities Act (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) under the Securities Act either in a post-effective amendment to the Registration Statement or on the cover page of the Prospectus).
(2) The Original Registration Statement became effective upon filing under Rule 462(e) under the Securities Act on February 12, 2020. 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 by the Commission, and any request on the part of the Commission for additional information has been complied with.
(3) Any offer that is a written communication relating to the Shares made prior to the initial filing of the Registration Statement by the Company or any person acting on its behalf (within the meaning, for this paragraph only, of Rule 163(c) under the Securities Act) has been filed with the Commission in accordance with the exemption provided by Rule 163 under the Securities Act and otherwise complied with the requirements of Rule 163 under the Securities Act, including without limitation the legending requirement.
(4) The Company has delivered or made available on XXXXX to each of the Sales Agent and the Forward Seller one complete copy of the Registration Statement and a copy of each consent and certificate of experts filed as a part thereof, and conformed copies of the Registration Statement (without exhibits) and the Prospectus, as amended or supplemented, in such quantities and at such places as the Sales Agent or the Forward Seller, as applicable, has reasonably requested. The Prospectus delivered to the Sales Agent and the Forward Seller for use in connection with the offering of Shares will, at the time of such delivery, be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(5) At the respective times the Registration Statement and each amendment thereto became effective, at each deemed effective date with respect to the Sales Agent, the Forward Seller or the Forward Purchaser pursuant to Rule 430B(f)(2) under the Securities Act, as the case may be, the Registration Statement complied and will comply in all material respects with the requirements of the Securities Act, the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act") and the respective rules and regulations of the Commission thereunder and did not and will not contain 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. The preceding sentence does not apply to statements in or omissions from the Registration Statement or any amendment thereto in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, expressly for inclusion in any of the aforementioned documents.
(6) Neither the Prospectus nor any amendments or supplements thereto, at the time the Prospectus or any such amendment or supplement was issued, as of the date hereof, at each Representation Date, at each Applicable Time, and at each Settlement Date, as the case may be, included or will include an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from the Prospectus, as amended or supplemented, in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, expressly for inclusion in any of the aforementioned documents.
(7) Each document incorporated by reference in the Registration Statement or the Prospectus heretofore filed, when it was filed (or, if any amendment with respect to any such document was filed, when such amendment was filed), conformed in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder, and any further documents so filed and incorporated after the date of this Agreement will, when they are filed, conform in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder; no such document when it was filed (or, if an amendment with respect to any such document was filed, when such amendment was filed), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and, at the time the Prospectus Supplement is filed with the Commission and no such documentat the Closing Date (as hereinafter defined), when it is filed, the Prospectus will comply in all material respects with the Act and the rules and regulations of the Commission thereunder and will not contain an any untrue statement of a material fact or will omit to state a any material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(8) Each Issuer Free Writing Prospectus (as defined herein), on its issue date, as of each Applicable Time, and as of each Settlement Date, or until any earlier date ; provided that the issuer notified Company makes no representations or notifies warranties as to (A) that part of the Sales Agent Registration Statement which shall constitute the Statement of Eligibility (Form T-1) under the Trust Indenture Act of the Trustee or the Forward Seller as described in Section 8(d(B) hereof, did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in or omitted from the Registration Statement or the Prospectus in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of any Underwriter through the Representatives specifically for use in the Registration Statement or Prospectus. Each preliminary prospectus and the prospectus filed as part of the Registration Statement as originally filed or as part of any amendment thereto, or filed pursuant to Rule 424 of the Act, complied when so filed in all material respects with the rules under the Act, and each preliminary prospectus and the Prospectus delivered to the Underwriters for use in connection with this offering was identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation X-X.
(c) The documents incorporated by reference in the Prospectus, including when they were filed with the Commission, conformed in all material respects to the requirements of the Exchange Act and the rules and regulations of the Commission thereunder, and any documents so filed and incorporated document deemed by reference subsequent to the date of this Agreement will, when they are filed with the Commission, conform in all material respects to the requirements of the Exchange Act, and the rules and regulations of the Commission thereunder; and none of such documents include or will include any untrue statement of a material fact or omit or will omit to state any 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.
(d) PricewaterhouseCoopers LLP and Arthur Andersen LLP, which audited the financial stxxxxxxtx xxxxxxorated by reference in the Registration Statement, and Deloitte & Touche LLP, which has reviewed interim financial statements, are independent public accountants as required by the Act and the rules and regulations of the Commission thereunder.
(e) The financial statements of the Company and its consolidated subsidiaries filed as a part thereof that of or incorporated by reference in the Registration Statement or Prospectus fairly present the financial position of the Company and its consolidated subsidiaries as of the dates indicated and the results of their operations and changes in financial position for the periods specified, and have been prepared in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods involved, except as disclosed in the Prospectus Supplement.
(f) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Minnesota with due corporate authority to carry on the business in which it is engaged and to own and operate the properties used by it in such business, as described in the Prospectus; the Company is qualified to do business as a foreign corporation and is in good standing under the laws of the States of North Dakota and South Dakota; and the Company is not required by the nature of its business to be licensed or qualified as a foreign corporation in any other state or jurisdiction; and, except as set forth in the Prospectus Supplement, the Company has all material licenses and approvals required at the date hereof to conduct its business.
(g) The Company has no subsidiaries which would be deemed significant subsidiaries under Regulation S-X.
(h) Neither the Company nor any of its subsidiaries has sustained since the date of the latest audited financial statements included or incorporated by reference in the Prospectus any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus Supplement; and, since the respective dates as of which information is given in the Registration Statement and the Prospectus Supplement, neither the Company nor any of its subsidiaries has incurred any liabilities or obligations, direct or contingent, or entered into any transactions, not in the ordinary course of business, which are material to the Company and its subsidiaries, and there has not been superseded any material change in the capital stock or modified. The foregoing sentence does not apply to statements long-term debt of the Company or any of its subsidiaries or any material adverse change, or any development involving a prospective material adverse change, in or omissions from affecting the general affairs, management, financial position, stockholders' equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Prospectus Supplement.
(i) Neither the execution and delivery of this Agreement and the Indenture, the issuance and delivery of the Debt Securities, the consummation of the transactions herein contemplated, the fulfillment of the terms hereof, nor compliance with the terms and provisions of this Agreement, the Debt Securities and the Indenture will conflict with, or result in the breach of, any Issuer Free Writing Prospectus based upon and of the terms, provisions or conditions of the Articles of Incorporation, as amended, or by-laws of the Company, or of any contract, agreement or instrument to which the Company is a party or in conformity with written information furnished which the Company has a beneficial interest or by which the Company is bound or of any order, rule or regulation applicable to the Company by of any court or of any federal or state regulatory body or administrative agency or other governmental body having jurisdiction over the Sales Agent, the Forward Seller Company or the Forward Purchaser, as applicable, specifically for use thereinover its properties.
(9j) This The Debt Securities have been duly authorized for issuance and sale pursuant to this Agreement and, when executed and authenticated in accordance with the Indenture and delivered and paid for as provided herein, will be duly issued and will constitute valid and binding obligations of the Company enforceable in accordance with their terms, except as limited by bankruptcy, insolvency and other laws affecting enforcement of creditors' rights, and will be entitled to the benefits of the Indenture which will be substantially in the form heretofore delivered to you.
(k) The Indenture has been duly authorizedand validly authorized by the Company and, when duly executed and delivered by the Company Company, assuming due authorization, execution and this Agreement constitutes delivery thereof by the Trustee, will constitute a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability enforcement thereof may be limited by bankruptcy, insolvencyinsolvency or other laws affecting enforcement of creditors' rights.
(l) The Minnesota Public Utilities Commission has issued its order approving capital structure which order authorizes the issuance of the Debt Securities, fraudulent conveyanceand no other approval of any regulatory public body, reorganizationstate or federal, moratorium is, or will be at the Closing Date (as hereinafter defined), necessary in connection with the issuance and sale of the Debt Securities pursuant to this Agreement, other than approvals that may be required under state securities laws.
(m) The Company has good and valid title to all real and fixed property and leasehold rights which are owned by it, subject only to the Company's first mortgage indenture; taxes and assessments not yet delinquent; as to parts of the Company's property, certain easements, conditions, restrictions, leases, and similar laws relating to or affecting creditors’ rights generally and by general principles encumbrances which do not affect the Company's use of equity (such property in the “Exceptions”). The Master Forward Confirmation will have been, as usual course of its datebusiness, duly authorizedand certain minor defects in titles which are not material, executed and delivered defects in titles to certain properties which are not essential to the Company's business; and mechanics' lien claims being contested or not of record or for the satisfaction or discharge of which adequate provision has been made by the Company; and any real property and buildings held under lease by the Company is held by it under valid, subsisting and when executed enforceable leases with such exceptions as are not material and delivered do not interfere with the use made and proposed to be made of such property and buildings by the Forward PurchaserCompany.
(n) Other than as set forth or contemplated in the Prospectus as of the date hereof, such Master Forward Confirmation will constitute there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a valid and legally binding obligation party or of which any property of the Company enforceable against or any of its subsidiaries is the subject which, if determined adversely to the Company in accordance with or any of its termssubsidiaries, except as enforceability may be limited by the Exceptions.
(10) The Company and its “Subsidiaries” (as defined in Section 6(a)(13) hereof) have been duly incorporated would individually or organized and are validly existing as corporations or organizations in good standing under the laws of the states or other jurisdictions in which they are incorporated or organized, with full power and authority (corporate and other) to own, lease and operate their properties and conduct their businesses as described in the Prospectus andaggregate have a material adverse effect on the consolidated financial position, with respect to the Company, to execute and deliver, and perform the Company’s obligations under, this Agreement; stockholders' equity or results of operations of the Company and its Subsidiaries subsidiaries; and, to the best of the Company's knowledge, no such proceedings are duly qualified threatened or contemplated by governmental authorities or threatened by others.
(o) The Company is not an "investment company" or an entity "controlled" by an "investment company," as such terms are defined in the Investment Company Act of 1940, as amended.
(p) Except as set forth in the Prospectus Supplement, the Company and its subsidiaries (A) are in compliance with any and all applicable federal, state and local laws and regulations relating to do business as foreign corporations the protection of human health and safety, the environment or organizations in good standing in each state hazardous or toxic substances or wastes, pollutants or contaminants ("Environmental Laws"), (B) have received all permits, licenses or other jurisdiction approvals required of them under applicable Environmental Laws to conduct its respective business and (C) are in which their ownership compliance with all terms and conditions of any such permits, licenses or leasing of property or conduct of business legally requires such qualificationapprovals, except where the such noncompliance with Environmental Laws, failure to be so qualifiedreceive required permits, individually licenses or other approvals or failure to comply with the terms and conditions of such permits, licenses or approvals would not, singly or in the aggregate, would not have a Material Adverse Effect. The term “Material Adverse Effect” as used herein means any material adverse effect on the condition (financial or other), net worth, business, affairs, management, prospects, results of operations or cash flow of the Company and its Subsidiariessubsidiaries, taken as a whole.
Appears in 1 contract
Representations and Warranties by the Company. The Company represents and warrants to the Sales Agent, the Forward Seller and the Forward Purchaser Barclays as of (i) the date hereof and as of hereof, (ii) each date on which a Placement Notice becomes effective pursuant to Section 2 hereof, (iii) each Representation Date (as defined belowherein) on which a certificate is certificates are required to be delivered pursuant to Section 8(o7(o) of this Agreement, as of that date on which any Placement Notice is given hereunder, as of (iv) the time of each sale of any Issuance Shares Securities or Forward Hedge Shares any securities pursuant to this Agreement (the “Applicable Time”) and as of (v) each Settlement Date (as defined below), and agrees with the Sales Agent, the Forward Seller and the Forward PurchaserBarclays, as follows:follows (provided, that the representations and warranties of the Company set forth in Section 5(36)(ii) are only made as of the date hereof):
(1) The Company satisfies all of the requirements of Securities have been duly registered under the Securities Act for use of Form S-3 for pursuant to the offering of the Shares contemplated hereby and the offering and sale of Shares contemplated hereby complies with the requirements of Rule 415 Registration Statement. The Registration Statement has become effective under the Securities Act. At , or, with respect to any registration statement to be filed to register the time of the initial filing of the Registration Statement, at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) offer and sale of the Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(dRule 462(b) of the Exchange Act or form of prospectus), at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Securities Act) made any offer relating to the Shares in reliance on the exemption of Rule 163 under the Securities Act and at the date hereof, the Company was and is a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act, including not having been and not being an the documents incorporated by reference therein (a “ineligible issuer,” as defined in Rule 405 under the Securities Act. The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 under the Securities Act, and the Shares, since their registration on the 462(b) Registration Statement”), have been and remain eligible for registration by the Company on a Rule 405 “automatic shelf registration statement.” The Company has not received from will be filed with the Commission any notice pursuant to Rule 401(g)(2) and become effective under the Securities Act objecting prior to the time of any sale of Securities pursuant to such Rule 462(b) Registration Statement, and no stop order preventing or suspending the use of any base prospectus, the automatic shelf registration statement form. The Company has paid Prospectus Supplement, the Prospectus or will pay the required Commission filing fees relating to the Shares within the time required by Rule 456(b)(1)(i) under the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Securities Act any Permitted Free Writing Prospectus (includingas defined below), if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) under the Securities Act either in a post-effective amendment to the Registration Statement or on the cover page of the Prospectus).
(2) The Original Registration Statement became effective upon filing under Rule 462(e) under the Securities Act on February 12, 2020. No stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act or any Rule 462(b) Registration Statement and no proceedings for that such purpose have been instituted or are pending or, to the knowledge of the Company, are contemplated by the Commission, and any request on the part of the Commission for additional information has been complied with.
(3) Any offer that is a written communication relating to the Shares made prior to the initial filing of the Registration Statement by the Company or any person acting on its behalf (within the meaning, for this paragraph only, of Rule 163(c) under the Securities Act) has been filed with the Commission in accordance with the exemption provided by Rule 163 under the Securities Act and otherwise complied with the requirements of Rule 163 under the Securities Act, including without limitation the legending requirement.
(4) The Company has delivered or made available on XXXXX to each of the Sales Agent and the Forward Seller one complete copy of the Registration Statement and a copy of each consent and certificate of experts filed as a part thereof, and conformed copies of the Registration Statement (without exhibits) and the Prospectus, as amended or supplemented, in such quantities and at such places as the Sales Agent or the Forward Seller, as applicable, has reasonably requested. The Prospectus delivered to the Sales Agent and the Forward Seller for use in connection with the offering of Shares will, at the time of such delivery, be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(5) At the respective times each of the Registration Statement, any Rule 462(b) Registration Statement and each amendment any post-effective amendments thereto became effective, at each deemed or becomes effective and as of the date with respect to the Sales Agent, the Forward Seller or the Forward Purchaser pursuant to Rule 430B(f)(2) under the Securities Act, as the case may behereof, the Registration Statement, any Rule 462(b) Registration Statement and any amendments and supplements thereto complied and will comply in all material respects with the requirements of the Securities Act. The conditions for the use of Form S-3, as set forth in the General Instructions thereto, have been complied with and the Registration Statement meets, and the offering and sale of the Securities as contemplated hereby complies with, the requirements of Rule 415 under the Securities Act (including without limitation, Rule 415(a)(5)). The initial effective date of the Registration Statement was not earlier than the date three years before the date of this Agreement. The Registration Statement, as of the date hereof and each effective date with respect thereto, did not 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 in order to make the statements therein not misleading. The preceding sentence does not apply to statements in or omissions from the Registration Statement or any amendment thereto in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, expressly for inclusion in any of the aforementioned documents.
(6) Neither the Prospectus nor any amendments or supplements thereto, at the time the Prospectus or any such amendment or supplement was issued, as of the date hereof, at each Representation Date, at each Applicable Timetheir respective dates, and at each Applicable Time and Settlement Date, as the case may be, included or will include an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The representations and warranties set forth in the immediately preceding sentence does paragraph shall not apply to statements in or omissions from the Registration Statement or the Prospectus, as amended or supplemented, made in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, Barclays expressly for inclusion in any of the aforementioned documents.
(7) Each document incorporated by reference in the Registration Statement or the Prospectus heretofore filed, when it was filed (or, if any amendment with respect to any such document was filed, when such amendment was filed), conformed in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder, and any further documents so filed and incorporated after the date of this Agreement will, when they are filed, conform in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder; no such document when it was filed (or, if an amendment with respect to any such document was filed, when such amendment was filed), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and no such document, when it is filed, will contain an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(8) Each Issuer Free Writing Prospectus (as defined herein), on its issue date, as of each Applicable Time, and as of each Settlement Date, or until any earlier date that the issuer notified or notifies the Sales Agent or the Forward Seller as described in Section 8(d) hereof, 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 incorporated document deemed to be a part thereof that has not been superseded or modified. The foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with written information furnished to the Company by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, specifically for use therein.
(9) This Agreement has been duly authorized, executed it being understood and delivered agreed that the only such information furnished by the Company and this Agreement constitutes a valid and legally binding obligation Barclays consists of the Company enforceable against the Company in accordance with its terms, except information described as enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and by general principles of equity (the “Exceptions”). The Master Forward Confirmation will have been, as of its date, duly authorized, executed and delivered by the Company and when executed and delivered by the Forward Purchaser, such Master Forward Confirmation will constitute a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by the Exceptions.
(10) The Company and its “Subsidiaries” (as defined in Section 6(a)(1310(b) hereof) have been duly incorporated or organized and are validly existing as corporations or organizations in good standing under the laws of the states or other jurisdictions in which they are incorporated or organized, with full power and authority (corporate and other) to own, lease and operate their properties and conduct their businesses as described in the Prospectus and, with respect to the Company, to execute and deliver, and perform the Company’s obligations under, this Agreement; the Company and its Subsidiaries are duly qualified to do business as foreign corporations or organizations in good standing in each state or other jurisdiction in which their ownership or leasing of property or conduct of business legally requires such qualification, except where the failure to be so qualified, individually or in the aggregate, would not have a Material Adverse Effect. The term “Material Adverse Effect” as used herein means any material adverse effect on the condition (financial or other), net worth, business, affairs, management, prospects, results of operations or cash flow of the Company and its Subsidiaries, taken as a whole.
Appears in 1 contract
Samples: Equity Distribution Agreement (Blackstone Mortgage Trust, Inc.)
Representations and Warranties by the Company. The Company --------------------------------------------- represents and warrants to the Sales Agent, the Forward Seller and the Forward Purchaser as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 8(o) of this Agreement, as of that date on which any Placement Notice is given hereunder, as of the time of each sale of any Issuance Shares or Forward Hedge Shares pursuant to this Agreement (the “Applicable Time”) and as of each Settlement Date (as defined below), and agrees with the Sales Agent, the Forward Seller and the Forward Purchaser, as followsInternational Manager that:
(1a) The A registration statement on Form S-1 with respect to the Shares has (i) been prepared by the Company satisfies all of in conformity with the requirements of the Securities Act for use of Form S-3 for 1933 (the offering "Securities Act") and the rules and regulations (the "Rules and Regulations") of the Shares contemplated hereby Securities and Exchange Commission (the offering and sale of Shares contemplated hereby complies "Commission") thereunder, (ii) been filed with the requirements of Rule 415 Commission under the Securities Act and (iii) become effective under the Securities Act. At Copies of such registration statement have been delivered by the Company to you as the Lead Managers of the International Managers. As used in this Agreement, "Effective Time" means the date and the time as of the initial filing of the Registration Statementwhich such registration statement, at the time of or the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective amendmentamendment thereto, incorporated report filed pursuant to Section 13 or 15(d) if any, was declared effective by the Commission; "Effective Date" means the date of the Exchange Act Effective Time of such registration statement; "Preliminary Prospectus" means each prospectus included in any such registration statement, or form of prospectus)amendments thereof, at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Securities Act) made any offer relating to the Shares in reliance on the exemption of Rule 163 before it became effective under the Securities Act and at the date hereof, the Company was and is a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act, including not having been and not being an “ineligible issuer,” as defined in Rule 405 under the Securities Act. The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 under the Securities Act, 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.” The Company has not received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting to the use of the automatic shelf registration statement form. The Company has paid or will pay the required Commission filing fees relating to the Shares within the time required by Rule 456(b)(1)(i) under the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Securities Act (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) under the Securities Act either in a post-effective amendment to the Registration Statement or on the cover page of the Prospectus).
(2) The Original Registration Statement became effective upon filing under Rule 462(e) under the Securities Act on February 12, 2020. 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 by the Commission, and any request on the part of the Commission for additional information has been complied with.
(3) Any offer that is a written communication relating to the Shares made prior to the initial filing of the Registration Statement by the Company or any person acting on its behalf (within the meaning, for this paragraph only, of Rule 163(c) under the Securities Act) has been prospectus filed with the Commission in accordance by the Company with the exemption provided by Rule 163 under the Securities Act and otherwise complied with the requirements of Rule 163 under the Securities Act, including without limitation the legending requirement.
(4) The Company has delivered or made available on XXXXX to each consent of the Sales Agent and the Forward Seller one complete copy Lead Managers pursuant to Rule 424(a) of the Registration Statement Rules and a copy of each consent and certificate of experts filed as a part thereof, and conformed copies of the Registration Statement (without exhibits) and the Regulations; "Prospectus" means such final prospectus, as amended or supplemented, in such quantities and at such places as the Sales Agent or the Forward Seller, as applicable, has reasonably requested. The Prospectus delivered to the Sales Agent and the Forward Seller for use in connection with the offering of Shares will, at the time of such delivery, be identical to the electronically transmitted copies thereof first filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
paragraph (51) At the respective times the Registration Statement and each amendment thereto became effective, at each deemed effective date with respect to the Sales Agent, the Forward Seller or the Forward Purchaser pursuant to (4) of Rule 430B(f)(2424(b) under the Securities Act, as the case may be, the Registration Statement complied and will comply in all material respects with the requirements of the Securities Act, Rules and did not Regulations; and will not contain an untrue "Registration Statement" means the registration statement of a material fact or omit referred to state a material fact required to be stated therein or necessary to make the statements therein not misleading. The preceding sentence does not apply to statements in or omissions from the Registration Statement or any amendment thereto in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, expressly for inclusion in any of the aforementioned documents.
(6) Neither the Prospectus nor any amendments or supplements thereto, at the time the Prospectus or any such amendment or supplement was issued, as of the date hereof, at each Representation Date, at each Applicable Time, and at each Settlement Date, as the case may be, included or will include an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from the Prospectusthis Section 1(a), as amended or supplemented, in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, expressly for inclusion in any of the aforementioned documents.
(7) Each document incorporated by reference in the Registration Statement or the Prospectus heretofore filed, when it was filed (or, if any amendment with respect to any such document was filed, when such amendment was filed), conformed in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder, and any further documents so filed and incorporated after the date of this Agreement will, when they are filed, conform in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder; no such document when it was filed (or, if an amendment with respect to any such document was filed, when such amendment was filed), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and no such document, when it is filed, will contain an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(8) Each Issuer Free Writing Prospectus (as defined herein), on at its issue date, as of each Applicable Effective Time, and as of each Settlement Date, or until any earlier date that the issuer notified or notifies the Sales Agent or the Forward Seller as described in Section 8(d) hereof, did not, does not and will not include any information that conflicted, conflicts or will conflict with the including all information contained in the Registration Statement or final prospectus filed with the Prospectus, including any incorporated document Commission pursuant to Rule 424(b) of the Rules and Regulations in accordance with Section 7(a) hereof and deemed to be a part thereof that of the Registration Statement as of the Effective Time of the Registration Statement pursuant to paragraph (b) of Rule 430A of the Rules and Regulations. The Commission has not been superseded issued any order preventing or modified. The foregoing sentence does not apply to statements in or omissions from suspending the use of any Issuer Free Writing Prospectus based upon and in conformity with written information furnished to the Company by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, specifically for use thereinPreliminary Prospectus.
(9) This Agreement has been duly authorized, executed and delivered by the Company and this Agreement constitutes a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and by general principles of equity (the “Exceptions”). The Master Forward Confirmation will have been, as of its date, duly authorized, executed and delivered by the Company and when executed and delivered by the Forward Purchaser, such Master Forward Confirmation will constitute a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by the Exceptions.
(10) The Company and its “Subsidiaries” (as defined in Section 6(a)(13) hereof) have been duly incorporated or organized and are validly existing as corporations or organizations in good standing under the laws of the states or other jurisdictions in which they are incorporated or organized, with full power and authority (corporate and other) to own, lease and operate their properties and conduct their businesses as described in the Prospectus and, with respect to the Company, to execute and deliver, and perform the Company’s obligations under, this Agreement; the Company and its Subsidiaries are duly qualified to do business as foreign corporations or organizations in good standing in each state or other jurisdiction in which their ownership or leasing of property or conduct of business legally requires such qualification, except where the failure to be so qualified, individually or in the aggregate, would not have a Material Adverse Effect. The term “Material Adverse Effect” as used herein means any material adverse effect on the condition (financial or other), net worth, business, affairs, management, prospects, results of operations or cash flow of the Company and its Subsidiaries, taken as a whole.
Appears in 1 contract
Samples: International Underwriting Agreement (Electric Lightwave Inc)
Representations and Warranties by the Company. The Company represents and warrants to the Sales Agent, the Forward Seller and the Forward Purchaser as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 8(o) of this Agreement, as of that date on which any Placement Notice is given hereunder, as of the time of each sale of any Issuance Shares or Forward Hedge Shares pursuant to this Agreement (the “Applicable Time”) and as of each Settlement Date (as defined below)to, and agrees with the Sales Agentwith, the Forward Seller and the Forward Purchaser, as followseach Underwriter that:
(1a) The Company satisfies all of meets the requirements of the Securities Act for use of Form S-3 under the Securities Act of 1933, as amended (the "Act") and has filed with the Securities and Exchange Commission (the "Commission") a registration statement on such Form, including a prospectus, for the registration under the Act of the Debt Securities, which registration statement has become effective. Such registration statement and prospectus may have been amended or supplemented from time to time prior to the date of this Agreement (which date is set forth in Schedule I hereto). Any such amendment or supplement was filed with the Commission and any such amendment has become effective. The Company will file with the Commission a prospectus supplement (the "Prospectus Supplement") relating to the Debt Securities pursuant to Rule 424 and/or Rule 434 under the Act. Copies of such registration statement and prospectus, any such amendment or supplement and all documents incorporated by reference therein which were filed with the Commission on or prior to the date of this Agreement have been delivered to you and copies of the Prospectus Supplement will be delivered to you promptly after it is filed with the Commission. Such registration statement, as amended prior to the date of this Agreement, and such prospectus, as amended and supplemented prior to the date of this Agreement and as supplemented by the Prospectus Supplement, are hereinafter called the "Registration Statement" and the "Prospectus", respectively. Any reference herein to the Registration Statement or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 which were filed under the Securities Exchange Act of 1934, as amended (the "Exchange Act") on or before the date of this Agreement and, if the Company files any document pursuant to the Exchange Act after the date of this Agreement and prior to the termination of the offering of the Shares contemplated hereby Debt Securities by the Underwriters, which documents are deemed to be incorporated by reference into the Prospectus, the term "Prospectus" shall refer also to said prospectus as supplemented by the documents so filed from and after the offering and sale of Shares contemplated hereby complies time said documents are filed with the requirements of Rule 415 under the Securities ActCommission. At the time There are no contracts or documents of the initial filing Company or any of its subsidiaries that are required to be filed as exhibits to the Registration Statement or any documents incorporated by reference therein by the Act, the Exchange Act or the rules and regulations thereunder which have not been so filed.
(b) No order preventing or suspending the use of the Prospectus or the Registration Statement has been issued by the Commission and the Registration Statement, at the time date of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective amendmentthis Agreement, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Securities Act) made any offer relating to the Shares in reliance on the exemption of Rule 163 under the Securities Act and at the date hereof, the Company was and is a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act, including not having been and not being an “ineligible issuer,” as defined in Rule 405 under the Securities Act. The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 under the Securities Act, 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.” The Company has not received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting to the use of the automatic shelf registration statement form. The Company has paid or will pay the required Commission filing fees relating to the Shares within the time required by Rule 456(b)(1)(i) under the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Securities Act (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) under the Securities Act either in a post-effective amendment to the Registration Statement or on the cover page of the Prospectus).
(2) The Original Registration Statement became effective upon filing under Rule 462(e) under the Securities Act on February 12, 2020. 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 by the Commission, and any request on the part of the Commission for additional information has been complied with.
(3) Any offer that is a written communication relating to the Shares made prior to the initial filing of the Registration Statement by the Company or any person acting on its behalf (within the meaning, for this paragraph only, of Rule 163(c) under the Securities Act) has been filed with the Commission in accordance with the exemption provided by Rule 163 under the Securities Act and otherwise complied with the requirements of Rule 163 under the Securities Act, including without limitation the legending requirement.
(4) The Company has delivered or made available on XXXXX to each of the Sales Agent and the Forward Seller one complete copy of the Registration Statement and a copy of each consent and certificate of experts filed as a part thereof, and conformed copies of the Registration Statement (without exhibits) and the Prospectus, as amended or supplemented, in such quantities and at such places as the Sales Agent or the Forward Seller, as applicable, has reasonably requested. The Prospectus delivered to the Sales Agent and the Forward Seller for use in connection with the offering of Shares will, at the time of such delivery, be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(5) At the respective times the Registration Statement and each amendment thereto became effective, at each deemed effective date with respect to the Sales Agent, the Forward Seller or the Forward Purchaser pursuant to Rule 430B(f)(2) under the Securities Act, as the case may be, the Registration Statement complied and will comply in all material respects with the requirements of the Securities Act, the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act") and the respective rules and regulations of the Commission thereunder and did not and will not contain 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. The preceding sentence does not apply to statements in or omissions from the Registration Statement or any amendment thereto in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, expressly for inclusion in any of the aforementioned documents.
(6) Neither the Prospectus nor any amendments or supplements thereto, at the time the Prospectus or any such amendment or supplement was issued, as of the date hereof, at each Representation Date, at each Applicable Time, and at each Settlement Date, as the case may be, included or will include an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from the Prospectus, as amended or supplemented, in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, expressly for inclusion in any of the aforementioned documents.
(7) Each document incorporated by reference in the Registration Statement or the Prospectus heretofore filed, when it was filed (or, if any amendment with respect to any such document was filed, when such amendment was filed), conformed in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder, and any further documents so filed and incorporated after the date of this Agreement will, when they are filed, conform in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder; no such document when it was filed (or, if an amendment with respect to any such document was filed, when such amendment was filed), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and, at the time the Prospectus Supplement is filed with the Commission and no such documentat the Closing Date (as hereinafter defined), when it is filed, the Prospectus will comply in all material respects with the Act and the rules and regulations of the Commission thereunder and will not contain an any untrue statement of a material fact or will omit to state a any material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(8) Each Issuer Free Writing Prospectus (as defined herein), on its issue date, as of each Applicable Time, and as of each Settlement Date, or until any earlier date ; provided that the issuer notified Company makes no representations or notifies warranties as to (A) that part of the Sales Agent Registration Statement which shall constitute the Statements of Eligibility (Forms T-1) under the Trust Indenture Act of the Trustee or the Forward Seller as described in Section 8(d(B) hereof, did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in or omitted from the Registration Statement or the Prospectus in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of any Underwriter through the Representatives specifically for use in the Registration Statement or Prospectus.
(c) The documents incorporated by reference in the Prospectus, including when they were filed with the Commission, conformed in all material respects to the requirements of the Exchange Act and the rules and regulations of the Commission thereunder, and any documents so filed and incorporated document deemed by reference subsequent to the date of this Agreement will, when they are filed with the Commission, conform in all material respects to the requirements of the Exchange Act, and the rules and regulations of the Commission thereunder; and none of such documents include or will include any untrue statement of a material fact or omit or will omit to state any 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.
(d) PricewaterhouseCoopers LLP and Xxxxxx Xxxxxxxx LLP which each audited certain of the financial statements incorporated by reference in the Registration Statement, are each an independent public accountant as required by the Act and the rules and regulations of the Commission thereunder.
(e) The financial statements of the Company and its consolidated subsidiaries filed as a part thereof that of or incorporated by reference in the Registration Statement or Prospectus fairly present the financial position of the Company and its consolidated subsidiaries as of the dates indicated and the results of their operations and changes in financial position for the periods specified, and have been prepared in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods involved, except as disclosed in the Prospectus Supplement. The financial statements of New Century Energies and its consolidated subsidiaries filed as a part of or incorporated by reference in the Registration Statement or Prospectus fairly present the financial position of New Century Energies and its consolidated subsidiaries as of the dates indicated and the results of their operations and changes in financial position for the periods specified, and have been prepared in conformity with generally accepted accounting principles applied in a consistent basis throughout the periods involved, except as described in the Prospectus Supplement.
(f) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Minnesota with due corporate authority to carry on the business in which it is engaged and to own and operate the properties used by it in such business, as described in the Prospectus; the Company is qualified to do business as a foreign corporation and is in good standing under the laws of the States of North Dakota, South Dakota and Colorado; and the Company is not required by the nature of its business to be licensed or qualified as a foreign corporation in any other state or jurisdiction; and, except as set forth in the Prospectus Supplement, the Company has all material licenses and approvals required at the date hereof to conduct its business.
(g) Each subsidiary of the Company named in Exhibit 21.01 to the Company's most recent Annual Report on Form 10-K and in New Century Energies, most recent Annual Report on Form 10-K ("Significant Subsidiary") has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation and is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which it owns or leases substantial properties or in which the conduct of its business requires such qualification; all of the issued and outstanding capital stock of each such subsidiary has been duly authorized and validly issued and is fully paid and non-assessable; and the capital stock of each such subsidiary owned by the Company, directly or through subsidiaries, is owned free and clear of any pledge, lien, encumbrance, claim or equity.
(h) Neither the Company nor any of its subsidiaries has sustained since the date of the latest audited financial statements included or incorporated by reference in the Prospectus any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus Supplement; and, since the respective dates as of which information is given in the Registration Statement and the Prospectus Supplement, neither the Company nor any of its subsidiaries has incurred any liabilities or obligations, direct or contingent, or entered into any transactions, not in the ordinary course of business, which are material to the Company and its subsidiaries, and there has not been superseded any material change in the capital stock or modified. The foregoing sentence does not apply to statements long-term debt of the Company or any of its subsidiaries or any material adverse change, or any development involving a prospective material adverse change, in or omissions from affecting the general affairs, management, financial position, stockholders' equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Prospectus Supplement.
(i) Neither the execution and delivery of this Agreement and the Indenture, the issuance and delivery of the Debt Securities, the consummation of the transactions herein contemplated, the fulfillment of the terms hereof, nor compliance with the terms and provisions of this Agreement, the Debt Securities and the Indenture will conflict with, or result in the breach of, any Issuer Free Writing Prospectus based upon and of the terms, provisions or conditions of the Restated Articles of Incorporation, as amended, or by-laws of the Company, or of any contract, agreement or instrument to which the Company is a party or in conformity with written information furnished which the Company has a beneficial interest or by which the Company is bound or of any order, rule or regulation applicable to the Company by of any court or of any federal or state regulatory body or administrative agency or other governmental body having jurisdiction over the Sales Agent, the Forward Seller Company or the Forward Purchaser, as applicable, specifically for use thereinover its properties.
(9j) This The Debt Securities have been duly authorized for issuance and sale pursuant to this Agreement and, when executed and authenticated in accordance with the Indenture and delivered and paid for as provided herein, will be duly issued and will constitute valid and binding obligations of the Company enforceable in accordance with their terms, except as limited by bankruptcy, insolvency and other laws affecting enforcement of creditors' rights, and will be entitled to the benefits of the Indenture which will be substantially in the form heretofore delivered to you.
(k) The Indenture has been duly authorizedand validly authorized by the Company and, when duly executed and delivered by the Company Company, assuming due authorization, execution and this Agreement constitutes delivery thereof by the Trustee, will constitute a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability enforcement thereof may be limited by bankruptcy, insolvencyinsolvency or other laws affecting enforcement of creditors' rights.
(l) The Securities and Exchange Commission has issued a financing order under the Public Utility Holding Company Act of 1935, fraudulent conveyancewhich order authorizes the issuance of the Debt Securities, reorganizationand no other approval of any regulatory public body, moratorium state or federal, is, or will be at the Closing Date (as hereinafter defined), necessary in connection with the issuance and sale of the Debt Securities pursuant to this Agreement, other than approvals that may be required under state securities laws.
(m) The Company has good and valid title to all real and fixed property and leasehold rights which are owned by it, subject only to taxes and assessments not yet delinquent; as to parts of the Company's property, certain easements, conditions, restrictions, leases, and similar laws relating to or affecting creditors’ rights generally and by general principles encumbrances which do not affect the Company's use of equity (such property in the “Exceptions”). The Master Forward Confirmation will have been, as usual course of its datebusiness, duly authorizedand certain minor defects in titles which are not material, executed and delivered defects in titles to certain properties which are not essential to the Company's business; and mechanics' lien claims being contested or not of record or for the satisfaction or discharge of which adequate provision has been made by the Company; and any real property and buildings held under lease by the Company is held by it under valid, subsisting and when executed enforceable leases with such exceptions as are not material and delivered do not interfere with the use made and proposed to be made of such property and buildings by the Forward PurchaserCompany.
(n) Other than as set forth or contemplated in the Prospectus as of the date hereof, such Master Forward Confirmation will constitute there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a valid and legally binding obligation party or of which any property of the Company enforceable against or any of its subsidiaries is the subject which, if determined adversely to the Company in accordance with or any of its termssubsidiaries, except as enforceability may be limited by the Exceptions.
(10) The Company and its “Subsidiaries” (as defined in Section 6(a)(13) hereof) have been duly incorporated would individually or organized and are validly existing as corporations or organizations in good standing under the laws of the states or other jurisdictions in which they are incorporated or organized, with full power and authority (corporate and other) to own, lease and operate their properties and conduct their businesses as described in the Prospectus andaggregate have a material adverse effect on the consolidated financial position, with respect to the Company, to execute and deliver, and perform the Company’s obligations under, this Agreement; stockholders' equity or results of operations of the Company and its Subsidiaries subsidiaries; and, to the best of the Company's knowledge, no such proceedings are duly qualified threatened or contemplated by governmental authorities or threatened by others.
(o) The Company is not an "investment company" or an entity "controlled" by an "investment company," as such terms are defined in the Investment Company Act of 1940, as amended.
(p) Except as set forth in the Prospectus Supplement, the Company and its subsidiaries (A) are in compliance with any and all applicable federal, state and local laws and regulations relating to do business as foreign corporations the protection of human health and safety, the environment or organizations in good standing in each state hazardous or toxic substances or wastes, pollutants or contaminants ("Environmental Laws"), (B) have received all permits, licenses or other jurisdiction approvals required of them under applicable Environmental Laws to conduct its respective business and (C) are in which their ownership compliance with all terms and conditions of any such permits, licenses or leasing of property or conduct of business legally requires such qualificationapprovals, except where the such noncompliance with Environmental Laws, failure to be so qualifiedreceive required permits, individually licenses or other approvals or failure to comply with the terms and conditions of such permits, licenses or approvals would not, singly or in the aggregate, would not have a Material Adverse Effect. The term “Material Adverse Effect” as used herein means any material adverse effect on the condition (financial or other), net worth, business, affairs, management, prospects, results of operations or cash flow of the Company and its Subsidiariessubsidiaries, taken as a whole.
Appears in 1 contract
Samples: Debt Securities Underwriting Agreement (Xcel Energy Inc)
Representations and Warranties by the Company. The Company represents and warrants to the Sales Agent, the Forward Seller and the Forward Purchaser Citigroup as of (i) the date hereof and as of hereof, (ii) each date on which a Placement Notice becomes effective pursuant to Section 2 hereof, (iii) each Representation Date (as defined belowherein) on which a certificate is certificates are required to be delivered pursuant to Section 8(o7(o) of this Agreement, as of that date on which any Placement Notice is given hereunder, as of (iv) the time of each sale of any Issuance Shares Securities or Forward Hedge Shares any securities pursuant to this Agreement (the “Applicable Time”) and as of (v) each Settlement Date (as defined below), and agrees with the Sales Agent, the Forward Seller and the Forward PurchaserCitigroup, as follows:
(1) The Company satisfies all of the requirements of Securities have been duly registered under the Securities Act for use of Form S-3 for pursuant to the offering of the Shares contemplated hereby and the offering and sale of Shares contemplated hereby complies with the requirements of Rule 415 Registration Statement. The Registration Statement has become effective under the Securities Act. At , or, with respect to any registration statement to be filed to register the time of the initial filing of the Registration Statement, at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) offer and sale of the Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(dRule 462(b) of the Exchange Act or form of prospectus), at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Securities Act) made any offer relating to the Shares in reliance on the exemption of Rule 163 under the Securities Act and at the date hereof, the Company was and is a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act, including not having been and not being an the documents incorporated by reference therein (a “ineligible issuer,” as defined in Rule 405 under the Securities Act. The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 under the Securities Act, and the Shares, since their registration on the 462(b) Registration Statement”), have been and remain eligible for registration by the Company on a Rule 405 “automatic shelf registration statement.” The Company has not received from will be filed with the Commission any notice pursuant to Rule 401(g)(2) and become effective under the Securities Act objecting prior to the time of any sale of Securities pursuant to such Rule 462(b) Registration Statement, and no stop order preventing or suspending the use of any base prospectus, the automatic shelf registration statement form. The Company has paid Prospectus Supplement, the Prospectus or will pay the required Commission filing fees relating to the Shares within the time required by Rule 456(b)(1)(i) under the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Securities Act any Permitted Free Writing Prospectus (includingas defined below), if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) under the Securities Act either in a post-effective amendment to the Registration Statement or on the cover page of the Prospectus).
(2) The Original Registration Statement became effective upon filing under Rule 462(e) under the Securities Act on February 12, 2020. No stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act or any Rule 462(b) Registration Statement and no proceedings for that such purpose have been instituted or are pending or, to the knowledge of the Company, are contemplated by the Commission, and any request on the part of the Commission for additional information has been complied with.
(3) Any offer that is a written communication relating to the Shares made prior to the initial filing of the Registration Statement by the Company or any person acting on its behalf (within the meaning, for this paragraph only, of Rule 163(c) under the Securities Act) has been filed with the Commission in accordance with the exemption provided by Rule 163 under the Securities Act and otherwise complied with the requirements of Rule 163 under the Securities Act, including without limitation the legending requirement.
(4) The Company has delivered or made available on XXXXX to each of the Sales Agent and the Forward Seller one complete copy of the Registration Statement and a copy of each consent and certificate of experts filed as a part thereof, and conformed copies of the Registration Statement (without exhibits) and the Prospectus, as amended or supplemented, in such quantities and at such places as the Sales Agent or the Forward Seller, as applicable, has reasonably requested. The Prospectus delivered to the Sales Agent and the Forward Seller for use in connection with the offering of Shares will, at the time of such delivery, be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(5) At the respective times each of the Registration Statement, any Rule 462(b) Registration Statement and each amendment any post-effective amendments thereto became effective, at each deemed or becomes effective and as of the date with respect to the Sales Agent, the Forward Seller or the Forward Purchaser pursuant to Rule 430B(f)(2) under the Securities Act, as the case may behereof, the Registration Statement, any Rule 462(b) Registration Statement and any amendments and supplements thereto complied and will comply in all material respects with the requirements of the Securities Act. The conditions for the use of Form S-3, as set forth in the General Instructions thereto, have been complied with and the Registration Statement meets, and the offering and sale of the Securities as contemplated hereby complies with, the requirements of Rule 415 under the Securities Act (including without limitation, Rule 415(a)(5)). The initial effective date of the Registration Statement was not earlier than the date three years before the date of this Agreement. The Registration Statement, as of the date hereof and each effective date with respect thereto, did not 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. The preceding sentence does not apply to statements in or omissions from the Registration Statement or any amendment thereto in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, expressly for inclusion in any of the aforementioned documents.
(6) Neither the Prospectus nor any amendments or supplements thereto, at the time the Prospectus or any such amendment or supplement was issued, as of the date hereof, at each Representation Date, at each Applicable Timetheir respective dates, and at each Applicable Time and Settlement Date, as the case may be, included or will include an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The representations and warranties set forth in the immediately preceding sentence does paragraph shall not apply to statements in or omissions from the Registration Statement or the Prospectus, as amended or supplemented, made in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, Citigroup expressly for inclusion in any of the aforementioned documents.
(7) Each document incorporated by reference in the Registration Statement or the Prospectus heretofore filed, when it was filed (or, if any amendment with respect to any such document was filed, when such amendment was filed), conformed in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder, and any further documents so filed and incorporated after the date of this Agreement will, when they are filed, conform in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder; no such document when it was filed (or, if an amendment with respect to any such document was filed, when such amendment was filed), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and no such document, when it is filed, will contain an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(8) Each Issuer Free Writing Prospectus (as defined herein), on its issue date, as of each Applicable Time, and as of each Settlement Date, or until any earlier date that the issuer notified or notifies the Sales Agent or the Forward Seller as described in Section 8(d) hereof, 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 incorporated document deemed to be a part thereof that has not been superseded or modified. The foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with written information furnished to the Company by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, specifically for use therein.
(9) This Agreement has been duly authorized, executed it being understood and delivered agreed that the only such information furnished by the Company and this Agreement constitutes a valid and legally binding obligation Citigroup consists of the Company enforceable against the Company in accordance with its terms, except information described as enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and by general principles of equity (the “Exceptions”). The Master Forward Confirmation will have been, as of its date, duly authorized, executed and delivered by the Company and when executed and delivered by the Forward Purchaser, such Master Forward Confirmation will constitute a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by the Exceptions.
(10) The Company and its “Subsidiaries” (as defined in Section 6(a)(1310(b) hereof) have been duly incorporated or organized and are validly existing as corporations or organizations in good standing under the laws of the states or other jurisdictions in which they are incorporated or organized, with full power and authority (corporate and other) to own, lease and operate their properties and conduct their businesses as described in the Prospectus and, with respect to the Company, to execute and deliver, and perform the Company’s obligations under, this Agreement; the Company and its Subsidiaries are duly qualified to do business as foreign corporations or organizations in good standing in each state or other jurisdiction in which their ownership or leasing of property or conduct of business legally requires such qualification, except where the failure to be so qualified, individually or in the aggregate, would not have a Material Adverse Effect. The term “Material Adverse Effect” as used herein means any material adverse effect on the condition (financial or other), net worth, business, affairs, management, prospects, results of operations or cash flow of the Company and its Subsidiaries, taken as a whole.
Appears in 1 contract
Samples: Equity Distribution Agreement (Blackstone Mortgage Trust, Inc.)
Representations and Warranties by the Company. The Company represents and warrants to the Sales Agent, the Forward Seller and the Forward Purchaser Xxxxx Fargo Securities as of (i) the date hereof and as of hereof, (ii) each date on which a Placement Notice becomes effective pursuant to Section 2 hereof, (iii) each Representation Date (as defined belowherein) on which a certificate is certificates are required to be delivered pursuant to Section 8(o7(o) of this Agreement, as of that date on which any Placement Notice is given hereunder, as of (iv) the time of each sale of any Issuance Shares Securities or Forward Hedge Shares any securities pursuant to this Agreement (the “Applicable Time”) and as of (v) each Settlement Date (as defined below), and agrees with the Sales Agent, the Forward Seller and the Forward PurchaserXxxxx Fargo Securities, as follows:
(1) The Company satisfies all of the requirements of Securities have been duly registered under the Securities Act for use of Form S-3 for pursuant to the offering of the Shares contemplated hereby and the offering and sale of Shares contemplated hereby complies with the requirements of Rule 415 Registration Statement. The Registration Statement has become effective under the Securities Act. At , or, with respect to any registration statement to be filed to register the time of the initial filing of the Registration Statement, at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) offer and sale of the Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(dRule 462(b) of the Exchange Act or form of prospectus), at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Securities Act) made any offer relating to the Shares in reliance on the exemption of Rule 163 under the Securities Act and at the date hereof, the Company was and is a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act, including not having been and not being an the documents incorporated by reference therein (a “ineligible issuer,” as defined in Rule 405 under the Securities Act. The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 under the Securities Act, and the Shares, since their registration on the 462(b) Registration Statement”), have been and remain eligible for registration by the Company on a Rule 405 “automatic shelf registration statement.” The Company has not received from will be filed with the Commission any notice pursuant to Rule 401(g)(2) and become effective under the Securities Act objecting prior to the time of any sale of Securities pursuant to such Rule 462(b) Registration Statement, and no stop order preventing or suspending the use of any base prospectus, the automatic shelf registration statement form. The Company has paid Prospectus Supplement, the Prospectus or will pay the required Commission filing fees relating to the Shares within the time required by Rule 456(b)(1)(i) under the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Securities Act any Permitted Free Writing Prospectus (includingas defined below), if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) under the Securities Act either in a post-effective amendment to the Registration Statement or on the cover page of the Prospectus).
(2) The Original Registration Statement became effective upon filing under Rule 462(e) under the Securities Act on February 12, 2020. No stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act or any Rule 462(b) Registration Statement and no proceedings for that such purpose have been instituted or are pending or, to the knowledge of the Company, are contemplated by the Commission, and any request on the part of the Commission for additional information has been complied with.
(3) Any offer that is a written communication relating to the Shares made prior to the initial filing of the Registration Statement by the Company or any person acting on its behalf (within the meaning, for this paragraph only, of Rule 163(c) under the Securities Act) has been filed with the Commission in accordance with the exemption provided by Rule 163 under the Securities Act and otherwise complied with the requirements of Rule 163 under the Securities Act, including without limitation the legending requirement.
(4) The Company has delivered or made available on XXXXX to each of the Sales Agent and the Forward Seller one complete copy of the Registration Statement and a copy of each consent and certificate of experts filed as a part thereof, and conformed copies of the Registration Statement (without exhibits) and the Prospectus, as amended or supplemented, in such quantities and at such places as the Sales Agent or the Forward Seller, as applicable, has reasonably requested. The Prospectus delivered to the Sales Agent and the Forward Seller for use in connection with the offering of Shares will, at the time of such delivery, be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(5) At the respective times each of the Registration Statement, any Rule 462(b) Registration Statement and each amendment any post-effective amendments thereto became effective, at each deemed or becomes effective and as of the date with respect to the Sales Agent, the Forward Seller or the Forward Purchaser pursuant to Rule 430B(f)(2) under the Securities Act, as the case may behereof, the Registration Statement, any Rule 462(b) Registration Statement and any amendments and supplements thereto complied and will comply in all material respects with the requirements of the Securities Act. The conditions for the use of Form S-3, as set forth in the General Instructions thereto, have been complied with and the Registration Statement meets, and the offering and sale of the Securities as contemplated hereby complies with, the requirements of Rule 415 under the Securities Act (including without limitation, Rule 415(a)(5)). The initial effective date of the Registration Statement was not earlier than the date three years before the date of this Agreement. The Registration Statement, as of the date hereof and each effective date with respect thereto, did not 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. The preceding sentence does not apply to statements in or omissions from the Registration Statement or any amendment thereto in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, expressly for inclusion in any of the aforementioned documents.
(6) Neither the Prospectus nor any amendments or supplements thereto, at the time the Prospectus or any such amendment or supplement was issued, as of the date hereof, at each Representation Date, at each Applicable Timetheir respective dates, and at each Applicable Time and Settlement Date, as the case may be, included or will include an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The representations and warranties set forth in the immediately preceding sentence does paragraph shall not apply to statements in or omissions from the Registration Statement or the Prospectus, as amended or supplemented, made in reliance upon and in conformity with written information relating to the Sales Agent, the Forward Seller or the Forward Purchaser furnished to the Company in writing by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, Xxxxx Fargo Securities expressly for inclusion in any of the aforementioned documents.
(7) Each document incorporated by reference in the Registration Statement or the Prospectus heretofore filed, when it was filed (or, if any amendment with respect to any such document was filed, when such amendment was filed), conformed in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder, and any further documents so filed and incorporated after the date of this Agreement will, when they are filed, conform in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder; no such document when it was filed (or, if an amendment with respect to any such document was filed, when such amendment was filed), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and no such document, when it is filed, will contain an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(8) Each Issuer Free Writing Prospectus (as defined herein), on its issue date, as of each Applicable Time, and as of each Settlement Date, or until any earlier date that the issuer notified or notifies the Sales Agent or the Forward Seller as described in Section 8(d) hereof, 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 incorporated document deemed to be a part thereof that has not been superseded or modified. The foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with written information furnished to the Company by the Sales Agent, the Forward Seller or the Forward Purchaser, as applicable, specifically for use therein.
(9) This Agreement has been duly authorized, executed it being understood and delivered agreed that the only such information furnished by the Company and this Agreement constitutes a valid and legally binding obligation Xxxxx Fargo Securities consists of the Company enforceable against the Company in accordance with its terms, except information described as enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and by general principles of equity (the “Exceptions”). The Master Forward Confirmation will have been, as of its date, duly authorized, executed and delivered by the Company and when executed and delivered by the Forward Purchaser, such Master Forward Confirmation will constitute a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by the Exceptions.
(10) The Company and its “Subsidiaries” (as defined in Section 6(a)(1310(b) hereof) have been duly incorporated or organized and are validly existing as corporations or organizations in good standing under the laws of the states or other jurisdictions in which they are incorporated or organized, with full power and authority (corporate and other) to own, lease and operate their properties and conduct their businesses as described in the Prospectus and, with respect to the Company, to execute and deliver, and perform the Company’s obligations under, this Agreement; the Company and its Subsidiaries are duly qualified to do business as foreign corporations or organizations in good standing in each state or other jurisdiction in which their ownership or leasing of property or conduct of business legally requires such qualification, except where the failure to be so qualified, individually or in the aggregate, would not have a Material Adverse Effect. The term “Material Adverse Effect” as used herein means any material adverse effect on the condition (financial or other), net worth, business, affairs, management, prospects, results of operations or cash flow of the Company and its Subsidiaries, taken as a whole.
Appears in 1 contract
Samples: Equity Distribution Agreement (Blackstone Mortgage Trust, Inc.)
