Representations and Warranties by the Company. The Company represents and warrants to the Sales Manager as of the date hereof and as of each Representation Date (as defined herein) on which a certificate is required to be delivered pursuant to Section 7(n) of this Agreement and as of the time of each sale of any Shares or any securities pursuant to this Agreement (the “Applicable Time”), and agrees with the Sales Manager, as follows: (i) The Company meets the requirements for use of Form N-2 under the Securities Act and the Securities Act Rules and Regulations. At the time the Registration Statement became effective, the Registration Statement complied in all material respects with the requirements of the Securities Act and the Securities Act Rules and Regulations and did not include 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 Prospectus complied, as of its date, in all material respects, with the requirements of the Securities Act and the Securities Act Rules and Regulations as of the Applicable Time, did not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; the Prospectus, as of the date of the Prospectus Supplement, will comply in all material respects with the requirements of the Securities Act and the Securities Act Rules and Regulations, and the Prospectus, as of the date of the Prospectus Supplement and the Applicable Time, did not and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the representations and warranties in this subsection shall not apply to statements in or omissions from the Registration Statement or Prospectus or any amendments or supplements thereto made in reliance upon and in conformity with information relating to the Sales Manager furnished to the Company in writing by the Sales Manager expressly for use in the Registration Statement or Prospectus, it being understood and agreed that the only such information furnished by the Sales Manager consists of the following information in the Prospectus Supplement furnished on behalf the Sales Manager: the last paragraph under the caption “Plan of Distribution.” The Shares have been duly registered under the Securities Act pursuant to the Registration Statement. Each of the Registration Statement, any Rule 462(b) Registration Statement and any post-effective amendments thereto has become effective, and no order suspending the effectiveness of the Registration Statement has been issued by the Commission. (ii) The Registration Statement has become effective; the Commission has not issued, and is not, to the knowledge of the Company, threatening to issue, any stop order under the Securities Act or other order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto, and no proceedings for such purpose have been instituted or are pending or, to the best knowledge of the Company are contemplated or threatened by the Commission. (iii) The Company has elected to be regulated by the Commission as a business development company under the Investment Company Act of 1940, as amended (the “Investment Company Act”), and has not withdrawn that election, and the Commission has not ordered that such election be withdrawn nor to the best of the Company’s knowledge have proceedings to effectuate such withdrawal been initiated or threatened by the Commission. (iv) To the Company’s knowledge, PricewaterhouseCoopers LLP, the accounting firm that audited the financial statements of the Company set forth in the Registration Statement and Prospectus, were and are independent registered accounting firms as required by the Securities Act and the Securities Act Rules and Regulations and the rules and regulations of the Public Company Accounting Oversight Board. (v) The financial statements, together with the related schedules and notes thereto, of the Company set forth in the Registration Statement and the Prospectus fairly present in all material respects the results of operations and financial condition of the Company and its subsidiaries as of the dates indicated and the results of their operations for the respective periods specified, and are prepared in conformity with U.S. generally accepted accounting principles and the selected financial information and data included in the Registration Statement and the Prospectus have been prepared on a basis consistent with that of the books and records of the Company. (vi) The Company (A) has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland, has full corporate power and authority to conduct its business as described in the Prospectus; (B) has full power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby; and (C) is duly licensed or qualified to do business as a foreign corporation and in good standing in each jurisdiction where the Company is required to be qualified or licensed or in good standing, except where the failure to be so qualified or licensed or to be in good standing would not result in a material adverse effect upon the financial condition, business or operations of the Company and its subsidiaries, taken as a whole (“Material Adverse Effect”). (vii) The Company is not, or with the giving of notice or lapse of time or both would not be, in default or violation with respect to its charter or bylaws or governing documents. The Company is not, or with the giving of notice or lapse of time or both would not be, in default in the performance or observance of any obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which the Company is a party or by which the Company is bound or to which any of the properties or assets of the Company is subject, or in violation of any statutes, laws, ordinances or governmental rules or regulations or any orders or decrees to which it is subject. (viii) The Company’s authorized capitalization is as set forth in the Prospectus; the outstanding shares of Common Stock have been duly authorized and validly issued and are fully paid and non-assessable and conform in all material respects to the description thereof in the Prospectus under the heading “Description of Capital Stock;” the Shares have been duly authorized by all requisite corporate action on the part of the Company for the issuance and sale of the Shares to the Sales Manager pursuant to this Agreement and, when the Shares are delivered and paid for pursuant to this Agreement on the Applicable Time, such Shares will have been validly issued and fully paid and non-assessable. The stockholders of the Company have no preemptive rights with respect to the Shares and none of the outstanding shares of capital stock of the Company have been issued in violation of any preemptive rights of any security holder. (ix) Except as set forth in the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, (A) the Company and its subsidiaries have not incurred any liabilities or obligations, direct or contingent, or entered into any transactions, other than in the ordinary course of business, that are material to the Company and its subsidiaries taken as a whole, (B) there has not been any material change in the capital stock of the Company, or any material adverse change, or, to the Company’s knowledge, any development involving a prospective material adverse change, in the condition (financial or otherwise), business, net worth, property or results of operations of the Company (excluding changes due to investment activities in the ordinary course of business), (C) there has been no dividend or distribution declared or paid in respect of the Company’s capital stock and (D) the Company and its subsidiaries have not incurred any short-term debt or long-term debt that is, in either case, material with respect to the Company and its subsidiaries taken as a whole (excluding debt resulting from a draw down on the Company’s credit facilities). (x) There is no pending or, to the knowledge of the Company, threatened action, suit or proceeding, legal or governmental, to which the Company or any of its subsidiaries is a party, before or by any court or governmental agency or body, that is required to be described in the Prospectus and is not so described. (xi) There are no contracts, agreements or understandings of the Company or any of its subsidiaries that are required to be filed as exhibits to the Registration Statement by the Securities Act or by the Securities Act Rules and Regulations that have not been so filed or incorporated by reference therein as permitted by the Securities Act Rules and Regulations. (xii) This Agreement has been duly authorized, executed and delivered by the Company. (xiii) The execution, delivery and performance of this Agreement, the issuance and sale of the Shares and the consummation of the transactions contemplated herein and the Prospectus (including the issuance and sale of the Shares and the use of the proceeds from the sale of the Shares as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or result in a breach or violation of any of the terms and provisions of, constitute a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any of its subsidiaries pursuant to, any agreement, indenture, mortgage, lease or other instrument to which the Company or any of its subsidiaries is a party or by which it or any of its properties or assets may be bound nor will such action result in any violation of the Company’s or any of its subsidiaries’ charter, bylaws or other organizational documents, or any order, law, statute, rule, regulation, judgment, order, writ or decree of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Company or any of its subsidiaries or any of their respective assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its subsidiaries.
Appears in 6 contracts
Sources: Equity Distribution Agreement (Hercules Capital, Inc.), Equity Distribution Agreement (Hercules Capital, Inc.), Equity Distribution Agreement (Hercules Capital, Inc.)
Representations and Warranties by the Company. The Company represents and warrants to each Underwriter named in the Sales Manager applicable Underwriting Agreement, as of the date hereof and as of each Representation Date (as defined herein) on which a certificate is required to be delivered pursuant to Section 7(n) of this Agreement thereof and as of the time of each sale of any Shares or any securities pursuant to this Agreement Closing Time (the “Applicable Time”), and agrees with the Sales Manager, as defined below) as follows:
(i1) The each document filed by the Company meets pursuant to the requirements for use of Form N-2 under 1934 Act which is incorporated by reference in the Securities Act and the Securities Act Rules and Regulations. At the time the Registration Statement became effective, the Registration Statement Prospectus complied when so filed in all material respects with the requirements of the Securities 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 filed pursuant to Rule 424 under the 1933 Act Rules complied when so filed in all material respects with the 1933 Act and Regulations and the 1933 Act Regulations; and
(4) each part of the Registration Statement at the time such part became effective did not include any contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; , and the Prospectus complied, as of its date, in all material respects, with the requirements of the Securities Act and the Securities Act Rules and Regulations as of the Applicable Timedate of the prospectus supplement relating to the Designated Securities did not, did not and the Prospectus (as amended or supplemented, other than as to supplements relating only to securities other than the Designated Securities) as of the Closing Time will not, contain any untrue statement of a material fact or omit to state a any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; except that these representations and warranties do not apply to (i) statements or omissions in the Registration Statement, any Preliminary Prospectus or the Prospectus, as of the date of the Prospectus Supplement, will comply in all material respects with the requirements of the Securities Act and the Securities Act Rules and Regulations, and the Prospectus, as of the date of the Prospectus Supplement and the Applicable Time, did not and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the representations and warranties in this subsection shall not apply to statements in or omissions from the Registration Statement or Prospectus or any amendments or supplements thereto made in reliance upon and in conformity with information relating to the Sales Manager foregoing, based upon information furnished to the Company in writing by the Sales Manager any Underwriter expressly for use in the Registration therein and (ii) any Form T-1 Statement or Prospectus, it being understood of Eligibility and agreed that the only such information furnished by the Sales Manager consists of the following information in the Prospectus Supplement furnished on behalf the Sales Manager: the last paragraph under the caption “Plan of Distribution.” The Shares have been duly registered under the Securities Act pursuant Qualification included as an exhibit to the Registration Statement. Each of the Registration Statement, any Rule 462(b) Registration Statement and any post-effective amendments thereto has become effective, and no order suspending the effectiveness of the Registration Statement has been issued by the Commission.
(ii) The Registration Statement has become effective; the Commission has not issued, and is not, to the knowledge of the Company, threatening to issue, any stop order under the Securities Act or other order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto, and no proceedings for such purpose have been instituted or are pending or, to the best knowledge of the Company are contemplated or threatened by the Commission.
(iii) The Company has elected to be regulated by the Commission as a business development company under the Investment Company Act of 1940, as amended (the “Investment Company Act”), and has not withdrawn that election, and the Commission has not ordered that such election be withdrawn nor to the best of the Company’s knowledge have proceedings to effectuate such withdrawal been initiated or threatened by the Commission.
(iv) To the Company’s knowledge, PricewaterhouseCoopers LLP, the accounting firm that audited the financial statements of the Company set forth in the Registration Statement and Prospectus, were and are independent registered accounting firms as required by the Securities Act and the Securities Act Rules and Regulations and the rules and regulations of the Public Company Accounting Oversight Board.
(v) The financial statements, together with the related schedules and notes thereto, of the Company set forth in the Registration Statement and the Prospectus fairly present in all material respects the results of operations and financial condition of the Company and its subsidiaries as of the dates indicated and the results of their operations for the respective periods specified, and are prepared in conformity with U.S. generally accepted accounting principles and the selected financial information and data included in the Registration Statement and the Prospectus have been prepared on a basis consistent with that of the books and records of the Company.
(vi) The Company (A) has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland, has full corporate power and authority to conduct its business as described in the Prospectus; (B) has full power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby; and (C) is duly licensed or qualified to do business as a foreign corporation and in good standing in each jurisdiction where the Company is required to be qualified or licensed or in good standing, except where the failure to be so qualified or licensed or to be in good standing would not result in a material adverse effect upon the financial condition, business or operations of the Company and its subsidiaries, taken as a whole (“Material Adverse Effect”).
(vii) The Company is not, or with the giving of notice or lapse of time or both would not be, in default or violation with respect to its charter or bylaws or governing documents. The Company is not, or with the giving of notice or lapse of time or both would not be, in default in the performance or observance of any obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which the Company is a party or by which the Company is bound or to which any of the properties or assets of the Company is subject, or in violation of any statutes, laws, ordinances or governmental rules or regulations or any orders or decrees to which it is subject.
(viii) The Company’s authorized capitalization is as set forth in the Prospectus; the outstanding shares of Common Stock have been duly authorized and validly issued and are fully paid and non-assessable and conform in all material respects to the description thereof in the Prospectus under the heading “Description of Capital Stock;” the Shares have been duly authorized by all requisite corporate action on the part of the Company for the issuance and sale of the Shares to the Sales Manager pursuant to this Agreement and, when the Shares are delivered and paid for pursuant to this Agreement on the Applicable Time, such Shares will have been validly issued and fully paid and non-assessable. The stockholders of the Company have no preemptive rights with respect to the Shares and none of the outstanding shares of capital stock of the Company have been issued in violation of any preemptive rights of any security holder.
(ix) Except as set forth in the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, (A) the Company and its subsidiaries have not incurred any liabilities or obligations, direct or contingent, or entered into any transactions, other than in the ordinary course of business, that are material to the Company and its subsidiaries taken as a whole, (B) there has not been any material change in the capital stock of the Company, or any material adverse change, or, to the Company’s knowledge, any development involving a prospective material adverse change, in the condition (financial or otherwise), business, net worth, property or results of operations of the Company (excluding changes due to investment activities in the ordinary course of business), (C) there has been no dividend or distribution declared or paid in respect of the Company’s capital stock and (D) the Company and its subsidiaries have not incurred any short-term debt or long-term debt that is, in either case, material with respect to the Company and its subsidiaries taken as a whole (excluding debt resulting from a draw down on the Company’s credit facilities).
(x) There is no pending or, to the knowledge of the Company, threatened action, suit or proceeding, legal or governmental, to which the Company or any of its subsidiaries is a party, before or by any court or governmental agency or body, that is required to be described in the Prospectus and is not so described.
(xi) There are no contracts, agreements or understandings of the Company or any of its subsidiaries that are required to be filed as exhibits to the Registration Statement by the Securities Act or by the Securities Act Rules and Regulations that have not been so filed or incorporated by reference therein as permitted by the Securities Act Rules and Regulations.
(xii) This Agreement has been duly authorized, executed and delivered by the Company.
(xiii) The execution, delivery and performance of this Agreement, the issuance and sale of the Shares and the consummation of the transactions contemplated herein and the Prospectus (including the issuance and sale of the Shares and the use of the proceeds from the sale of the Shares as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or result in a breach or violation of any of the terms and provisions of, constitute a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any of its subsidiaries pursuant to, any agreement, indenture, mortgage, lease or other instrument to which the Company or any of its subsidiaries is a party or by which it or any of its properties or assets may be bound nor will such action result in any violation of the Company’s or any of its subsidiaries’ charter, bylaws or other organizational documents, or any order, law, statute, rule, regulation, judgment, order, writ or decree of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Company or any of its subsidiaries or any of their respective assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its subsidiaries.
Appears in 5 contracts
Sources: Underwriting Agreement (General Electric Co), Underwriting Agreement (General Electric Co), Underwriting Agreement (General Electric Co)
Representations and Warranties by the Company. The Company represents and warrants to each Underwriter named in the Sales Manager applicable Underwriting Agreement, as of the date hereof and as of each Representation Date Pricing Effective Time (as defined hereinbelow), as of the Closing Time (as defined below) on which a certificate is required to be delivered pursuant to Section 7(n) of this Agreement and as of the time of each sale of any Shares or any securities pursuant Option Closing Time (as defined below) with respect to this Agreement (the “Applicable Time”), and agrees with the Sales Manager, Designated Securities as follows:
(i1) The each document filed by the Company meets pursuant to the requirements for use of Form N-2 under the Securities 1934 Act and the Securities Act Rules and Regulations. At the time which is incorporated by reference in the Registration Statement became effectiveStatement, the Registration Statement Prospectus or the Pricing Disclosure Material (as defined below) complied when so filed in all material respects with the requirements of the Securities 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 in all material respects 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 the 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 Rules complied when so filed in all material respects with the 1933 Act and Regulations and did the 1933 Act Regulations;
(4) (i) at the Effective Time, the Registration Statement will not include any contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) at the Prospectus complied, as of its date, in all material respects, with the requirements of the Securities Act and the Securities Act Rules and Regulations as of the Applicable Pricing Effective Time, the Pricing Disclosure Material (as defined below) did not contain any 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; and (iii) the Prospectus, Prospectus as of the date of the Prospectus Supplement, Pricing Supplement will comply in all material respects with the requirements of the Securities Act and the Securities Act Rules and Regulationsnot, and the ProspectusProspectus (as amended or supplemented, other than as to supplements relating only to securities other than the Designated Securities) as of the date of the Prospectus Supplement and the Applicable TimeClosing Time will not, did not and will not contain any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, except that the these representations and warranties in this subsection shall do not apply to (a) statements in or omissions from in the Registration Statement or Prospectus or Statement, any Preliminary Prospectus, the Prospectus, any amendments or supplements thereto made in reliance upon and in conformity with information relating to the Sales Manager foregoing, or in the Pricing Disclosure Material, based upon information furnished to the Company in writing by the Sales Manager any Underwriter expressly for use in the Registration therein and (b) any Form T-1 Statement or Prospectus, it being understood of Eligibility and agreed that the only such information furnished by the Sales Manager consists of the following information in the Prospectus Supplement furnished on behalf the Sales Manager: the last paragraph under the caption “Plan of Distribution.” The Shares have been duly registered under the Securities Act pursuant Qualification included as an exhibit to the Registration Statement. Each ;
(5) the Registration Statement constitutes an “automatic shelf registration statement” (as defined in Rule 405 under the ▇▇▇▇ ▇▇▇) filed within three years of the Registration Statement, any Rule 462(b) Registration Statement and any post-effective amendments thereto has become effective, and date hereof; no order suspending notice of objection of the effectiveness Commission with respect to the use of the Registration Statement pursuant to Rule 401(g)(2) under the 1933 Act has been issued received by the Commission.
(ii) The Registration Statement has become effective; the Commission has not issued, and is not, to the knowledge of the Company, threatening to issue, any stop order under the Securities Act or other order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto, and no proceedings for such purpose have been instituted or are pending or, to the best knowledge of the Company are contemplated or threatened by the Commission.
(iii) The Company has elected to be regulated by the Commission as a business development company under the Investment Company Act of 1940, as amended (the “Investment Company Act”), and has not withdrawn that election, and the Commission has not ordered that such election be withdrawn nor to the best of the Company’s knowledge have proceedings to effectuate such withdrawal been initiated or threatened by the Commission.
(iv) To the Company’s knowledge, PricewaterhouseCoopers LLP, the accounting firm that audited the financial statements of the Company set forth in the Registration Statement and Prospectus, were and are independent registered accounting firms as required by the Securities Act and the Securities Act Rules and Regulations and the rules and regulations of the Public Company Accounting Oversight Board.
(v) The financial statements, together with the related schedules and notes thereto, of the Company set forth in the Registration Statement and the Prospectus fairly present in all material respects the results of operations and financial condition of the Company and its subsidiaries as of the dates indicated and the results of their operations for the respective periods specified, and are prepared in conformity with U.S. generally accepted accounting principles and the selected financial information and data included in the Registration Statement and the Prospectus have been prepared on a basis consistent with that of the books and records of the Company.
(vi) The Company (A) has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland, has full corporate power and authority to conduct its business as described in the Prospectus; (B) has full power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby; and (C) is duly licensed or qualified to do business as a foreign corporation and in good standing in each jurisdiction where the Company is required to be qualified or licensed or in good standing, except where the failure to be so qualified or licensed or to be in good standing would not result in a material adverse effect upon the financial condition, business or operations of the Company and its subsidiaries, taken as a whole (“Material Adverse Effect”).
(vii) The Company is not, or with the giving of notice or lapse of time or both would not be, in default or violation with respect to its charter or bylaws or governing documents. The Company is not, or with the giving of notice or lapse of time or both would not be, in default in the performance or observance of any obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which the Company is a party or by which “well-known seasoned issuer” and is not an ineligible issuer in each case as defined in Rule 405 at the Company is bound or to which any of the properties or assets of the Company is subject, or in violation of any statutes, laws, ordinances or governmental rules or regulations or any orders or decrees to which it is subject.
(viii) The Company’s authorized capitalization is as set forth in the Prospectus; the outstanding shares of Common Stock have been duly authorized and validly issued and are fully paid and non-assessable and conform in all material respects “determination dates” relevant to the description thereof in the Prospectus under the heading “Description of Capital Stock;” the Shares have been duly authorized by all requisite corporate action on the part of the Company for the issuance offering and sale of the Shares to the Sales Manager pursuant to this Agreement and, when the Shares are delivered and paid for pursuant to this Agreement on the Applicable Time, such Shares will have been validly issued and fully paid and non-assessable. The stockholders of the Company have no preemptive rights with respect to the Shares and none of the outstanding shares of capital stock of the Company have been issued in violation of any preemptive rights of any security holder.
(ix) Except as set forth in the Prospectus, subsequent to the respective dates as of which information is given in Designated Securities under the Registration Statement and the Prospectus, (Aas described in such definition); and
(6) the Company and its subsidiaries have has not incurred used any liabilities or obligations, direct or contingent, or entered into any transactions, free writing prospectus other than a Permitted Free Writing Prospectus or used a Permitted Free Writing Prospectus except in the ordinary course of business, that are material to the Company and its subsidiaries taken as a whole, (B) there has not been any material change in the capital stock of the Company, or any material adverse change, or, to the Company’s knowledge, any development involving a prospective material adverse change, in the condition (financial or otherwise), business, net worth, property or results of operations of the Company (excluding changes due to investment activities in the ordinary course of business), (C) there has been no dividend or distribution declared or paid in respect of the Company’s capital stock and (D) the Company and its subsidiaries have not incurred any short-term debt or long-term debt that is, in either case, material compliance with respect to the Company and its subsidiaries taken as a whole (excluding debt resulting from a draw down on the Company’s credit facilities).
(x) There is no pending or, to the knowledge of the Company, threatened action, suit or proceeding, legal or governmental, to which the Company or any of its subsidiaries is a party, before or by any court or governmental agency or body, that is required to be described in the Prospectus and is not so described.
(xi) There are no contracts, agreements or understandings of the Company or any of its subsidiaries that are required to be filed as exhibits to the Registration Statement by the Securities Act or by the Securities Act Rules and Regulations that have not been so filed or incorporated by reference therein as permitted by the Securities Act Rules and Regulations.
(xii) This Agreement has been duly authorized, executed and delivered by the Company.
(xiii) The execution, delivery and performance of this Agreement, the issuance and sale of the Shares and the consummation of the transactions contemplated herein and the Prospectus (including the issuance and sale of the Shares and the use of the proceeds from the sale of the Shares as described in the Prospectus Rule 433 under the caption “Use of Proceeds”) 1933 Act and otherwise in compliance by with the Company with its obligations hereunder do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or result in a breach or violation of any of the terms and provisions of, constitute a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any of its subsidiaries pursuant to, any agreement, indenture, mortgage, lease or other instrument to which the Company or any of its subsidiaries is a party or by which it or any of its properties or assets may be bound nor will such action result in any violation of the Company’s or any of its subsidiaries’ charter, bylaws or other organizational documents, or any order, law, statute, rule, regulation, judgment, order, writ or decree of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Company or any of its subsidiaries or any of their respective assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its subsidiaries1933 Act.
Appears in 4 contracts
Sources: Underwriting Agreement (General Electric Co), Underwriting Agreement (General Electric Capital Corp), Underwriting Agreement (General Electric Co)
Representations and Warranties by the Company. The Company represents and warrants to the Sales Manager each Underwriter as of the date hereof and as of each Representation Date the Closing Time referred to in Section 2(c) hereof (as defined herein) on which a certificate is required to be delivered pursuant to Section 7(n) of this Agreement and as of the time of each sale of any Shares or any securities pursuant to this Agreement (the “Applicable Time”unless otherwise specified), and agrees with the Sales Managereach Underwriter, as follows:
(i) The Company meets Registration Statement has become effective, no stop order suspending the requirements for use effectiveness of Form N-2 under the Securities Act and the Securities Act Rules and Regulations. At the time the Registration Statement is in effect and no proceedings for such purpose are pending before or threatened by the Commission. The Company is a well-known seasoned issuer (as defined in Rule 405 under the 1933 Act), eligible to use the Registration Statement as an automatic shelf registration statement and the Company has not received notice that the Commission objects to the use of the Registration Statement as an automatic shelf registration statement.
(A) The Registration Statement, when it became effective, the Registration Statement complied in all material respects with the requirements of the Securities Act and the Securities Act Rules and Regulations and did not include contain, and as amended or supplemented, if applicable, will not contain 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; , (B) the Registration Statement as of the date hereof does not contain 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, (C) the Registration Statement and the Prospectus compliedcomply, and as of its dateamended or supplemented, if applicable, will comply in all material respects, respects with the requirements of the Securities 1933 Act and the Securities Act Rules applicable rules and Regulations as regulations of the Applicable Commission thereunder, (D) the Time of Sale Prospectus does not, and at the time of each sale of the Notes in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Time, did the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (E) each electronic road show related to the offering of the Notes, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; misleading and (F) the ProspectusProspectus does not contain and, as of the date of the Prospectus Supplementamended or supplemented, will comply in all material respects with the requirements of the Securities Act and the Securities Act Rules and Regulationsif applicable, and the Prospectus, as of the date of the Prospectus Supplement and the Applicable Time, did not and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the . The representations and warranties in this subsection shall not apply to statements in or omissions from the Registration Statement or Statement, the Time of Sale Prospectus or any amendments or supplements thereto the Prospectus made in reliance upon and in conformity with information relating to the Sales Manager furnished to the Company in writing by any Underwriter through the Sales Manager Representatives expressly for use in the Registration Statement or Prospectus, it being understood and agreed that the only such information furnished by the Sales Manager consists of the following information in the Prospectus Supplement furnished on behalf the Sales Manager: the last paragraph under the caption “Plan of Distributiontherein.” The Shares have been duly registered under the Securities Act pursuant to the Registration Statement. Each of the Registration Statement, any Rule 462(b) Registration Statement and any post-effective amendments thereto has become effective, and no order suspending the effectiveness of the Registration Statement has been issued by the Commission.
(ii) The Registration Statement has become effective; the Commission has not issued, and is not, to the knowledge of the Company, threatening to issue, any stop order under the Securities Act or other order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto, and no proceedings for such purpose have been instituted or are pending or, to the best knowledge of the Company are contemplated or threatened by the Commission.
(iii) The Company has elected to be regulated by the Commission as a business development company under the Investment Company Act of 1940, as amended (the “Investment Company Act”), and has not withdrawn that election, and the Commission has not ordered that such election be withdrawn nor to the best of the Company’s knowledge have proceedings to effectuate such withdrawal been initiated or threatened by the Commission.
(iv) To the Company’s knowledge, PricewaterhouseCoopers LLP, the accounting firm that audited the financial statements of the Company set forth in the Registration Statement and Prospectus, were and are independent registered accounting firms as required by the Securities Act and the Securities Act Rules and Regulations and the rules and regulations of the Public Company Accounting Oversight Board.
(v) The financial statements, together with the related schedules and notes thereto, of the Company set forth in the Registration Statement and the Prospectus fairly present in all material respects the results of operations and financial condition of the Company and its subsidiaries as of the dates indicated and the results of their operations for the respective periods specified, and are prepared in conformity with U.S. generally accepted accounting principles and the selected financial information and data included in the Registration Statement and the Prospectus have been prepared on a basis consistent with that of the books and records of the Company.
(vi) The Company (A) has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland, has full corporate power and authority to conduct its business as described in the Prospectus; (B) has full power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby; and (C) is duly licensed or qualified to do business as a foreign corporation and in good standing in each jurisdiction where the Company is required to be qualified or licensed or in good standing, except where the failure to be so qualified or licensed or to be in good standing would not result in a material adverse effect upon the financial condition, business or operations of the Company and its subsidiaries, taken as a whole (“Material Adverse Effect”).
(vii) The Company is not, or with the giving of notice or lapse of time or both would not be, in default or violation with respect to its charter or bylaws or governing documents. The Company is not, or with the giving of notice or lapse of time or both would not be, in default in the performance or observance of any obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which the Company is a party or by which the Company is bound or to which any of the properties or assets of the Company is subject, or in violation of any statutes, laws, ordinances or governmental rules or regulations or any orders or decrees to which it is subject.
(viii) The Company’s authorized capitalization is as set forth in the Prospectus; the outstanding shares of Common Stock have been duly authorized and validly issued and are fully paid and non-assessable and conform in all material respects to the description thereof in the Prospectus under the heading “Description of Capital Stock;” the Shares have been duly authorized by all requisite corporate action on the part of the Company for the issuance and sale of the Shares to the Sales Manager pursuant to this Agreement and, when the Shares are delivered and paid for pursuant to this Agreement on the Applicable Time, such Shares will have been validly issued and fully paid and non-assessable. The stockholders of the Company have no preemptive rights with respect to the Shares and none of the outstanding shares of capital stock of the Company have been issued in violation of any preemptive rights of any security holder.
(ix) Except as set forth in the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, (A) the Company and its subsidiaries have not incurred any liabilities or obligations, direct or contingent, or entered into any transactions, other than in the ordinary course of business, that are material to the Company and its subsidiaries taken as a whole, (B) there has not been any material change in the capital stock of the Company, or any material adverse change, or, to the Company’s knowledge, any development involving a prospective material adverse change, in the condition (financial or otherwise), business, net worth, property or results of operations of the Company (excluding changes due to investment activities in the ordinary course of business), (C) there has been no dividend or distribution declared or paid in respect of the Company’s capital stock and (D) the Company and its subsidiaries have not incurred any short-term debt or long-term debt that is, in either case, material with respect to the Company and its subsidiaries taken as a whole (excluding debt resulting from a draw down on the Company’s credit facilities).
(x) There is no pending or, to the knowledge of the Company, threatened action, suit or proceeding, legal or governmental, to which the Company or any of its subsidiaries is a party, before or by any court or governmental agency or body, that is required to be described in the Prospectus and is not so described.
(xi) There are no contracts, agreements or understandings of the Company or any of its subsidiaries that are required to be filed as exhibits to the Registration Statement by the Securities Act or by the Securities Act Rules and Regulations that have not been so filed or incorporated by reference therein as permitted by the Securities Act Rules and Regulations.
(xii) This Agreement has been duly authorized, executed and delivered by the Company.
(xiii) The execution, delivery and performance of this Agreement, the issuance and sale of the Shares and the consummation of the transactions contemplated herein and the Prospectus (including the issuance and sale of the Shares and the use of the proceeds from the sale of the Shares as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or result in a breach or violation of any of the terms and provisions of, constitute a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any of its subsidiaries pursuant to, any agreement, indenture, mortgage, lease or other instrument to which the Company or any of its subsidiaries is a party or by which it or any of its properties or assets may be bound nor will such action result in any violation of the Company’s or any of its subsidiaries’ charter, bylaws or other organizational documents, or any order, law, statute, rule, regulation, judgment, order, writ or decree of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Company or any of its subsidiaries or any of their respective assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its subsidiaries.
Appears in 3 contracts
Sources: Underwriting Agreement (Quest Diagnostics Inc), Underwriting Agreement (Quest Diagnostics Inc), Underwriting Agreement (Quest Diagnostics Inc)
Representations and Warranties by the Company. The Company represents and warrants to each Underwriter named in the Sales Manager applicable Underwriting Agreement, as of the date hereof and as of each Representation Date (as defined herein) on which a certificate is required to be delivered pursuant to Section 7(n) of this Agreement thereof and as of the time of each sale of any Shares or any securities pursuant to this Agreement Closing Time (the “Applicable Time”), and agrees with the Sales Manager, as defined below) as follows:
(i1) The each document filed by the Company meets pursuant to the requirements for use of Form N-2 under 1934 Act which is incorporated by reference in the Securities Act and the Securities Act Rules and Regulations. At the time the Registration Statement became effective, the Registration Statement Prospectus complied when so filed in all material respects with the requirements of the Securities 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 filed pursuant to Rule 424 under the 1933 Act Rules complied when so filed in all material respects with the 1933 Act and Regulations and the 1933 Act Regulations; and
(4) each part of the Registration Statement at the time such part became effective did not include any contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; , and the Prospectus complied, as of its date, in all material respects, with the requirements of the Securities Act and the Securities Act Rules and Regulations as of the Applicable Timedate of the prospectus supplement relating to the Designated Securities did not, did not and the Prospectus (as amended or supplemented, other than as to supplements relating only to securities other than the Designated Securities) as of the Closing Time will not, contain any untrue statement of a material fact or omit to state a any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; the Prospectus, as of the date of the Prospectus Supplement, will comply in all material respects with the requirements of the Securities Act and the Securities Act Rules and Regulations, and the Prospectus, as of the date of the Prospectus Supplement and the Applicable Time, did not and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, except that the these representations and warranties in this subsection shall do not apply to statements in or omissions from in the Registration Statement Statement, any Preliminary Prospectus or Prospectus the Prospectus, or any amendments or supplements thereto made in reliance upon and in conformity with information relating to the Sales Manager foregoing, based upon information furnished to the Company in writing by the Sales Manager any Underwriter expressly for use in the Registration Statement or Prospectus, it being understood and agreed that the only such information furnished by the Sales Manager consists of the following information in the Prospectus Supplement furnished on behalf the Sales Manager: the last paragraph under the caption “Plan of Distributiontherein.” The Shares have been duly registered under the Securities Act pursuant to the Registration Statement. Each of the Registration Statement, any Rule 462(b) Registration Statement and any post-effective amendments thereto has become effective, and no order suspending the effectiveness of the Registration Statement has been issued by the Commission.
(ii) The Registration Statement has become effective; the Commission has not issued, and is not, to the knowledge of the Company, threatening to issue, any stop order under the Securities Act or other order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto, and no proceedings for such purpose have been instituted or are pending or, to the best knowledge of the Company are contemplated or threatened by the Commission.
(iii) The Company has elected to be regulated by the Commission as a business development company under the Investment Company Act of 1940, as amended (the “Investment Company Act”), and has not withdrawn that election, and the Commission has not ordered that such election be withdrawn nor to the best of the Company’s knowledge have proceedings to effectuate such withdrawal been initiated or threatened by the Commission.
(iv) To the Company’s knowledge, PricewaterhouseCoopers LLP, the accounting firm that audited the financial statements of the Company set forth in the Registration Statement and Prospectus, were and are independent registered accounting firms as required by the Securities Act and the Securities Act Rules and Regulations and the rules and regulations of the Public Company Accounting Oversight Board.
(v) The financial statements, together with the related schedules and notes thereto, of the Company set forth in the Registration Statement and the Prospectus fairly present in all material respects the results of operations and financial condition of the Company and its subsidiaries as of the dates indicated and the results of their operations for the respective periods specified, and are prepared in conformity with U.S. generally accepted accounting principles and the selected financial information and data included in the Registration Statement and the Prospectus have been prepared on a basis consistent with that of the books and records of the Company.
(vi) The Company (A) has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland, has full corporate power and authority to conduct its business as described in the Prospectus; (B) has full power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby; and (C) is duly licensed or qualified to do business as a foreign corporation and in good standing in each jurisdiction where the Company is required to be qualified or licensed or in good standing, except where the failure to be so qualified or licensed or to be in good standing would not result in a material adverse effect upon the financial condition, business or operations of the Company and its subsidiaries, taken as a whole (“Material Adverse Effect”).
(vii) The Company is not, or with the giving of notice or lapse of time or both would not be, in default or violation with respect to its charter or bylaws or governing documents. The Company is not, or with the giving of notice or lapse of time or both would not be, in default in the performance or observance of any obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which the Company is a party or by which the Company is bound or to which any of the properties or assets of the Company is subject, or in violation of any statutes, laws, ordinances or governmental rules or regulations or any orders or decrees to which it is subject.
(viii) The Company’s authorized capitalization is as set forth in the Prospectus; the outstanding shares of Common Stock have been duly authorized and validly issued and are fully paid and non-assessable and conform in all material respects to the description thereof in the Prospectus under the heading “Description of Capital Stock;” the Shares have been duly authorized by all requisite corporate action on the part of the Company for the issuance and sale of the Shares to the Sales Manager pursuant to this Agreement and, when the Shares are delivered and paid for pursuant to this Agreement on the Applicable Time, such Shares will have been validly issued and fully paid and non-assessable. The stockholders of the Company have no preemptive rights with respect to the Shares and none of the outstanding shares of capital stock of the Company have been issued in violation of any preemptive rights of any security holder.
(ix) Except as set forth in the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, (A) the Company and its subsidiaries have not incurred any liabilities or obligations, direct or contingent, or entered into any transactions, other than in the ordinary course of business, that are material to the Company and its subsidiaries taken as a whole, (B) there has not been any material change in the capital stock of the Company, or any material adverse change, or, to the Company’s knowledge, any development involving a prospective material adverse change, in the condition (financial or otherwise), business, net worth, property or results of operations of the Company (excluding changes due to investment activities in the ordinary course of business), (C) there has been no dividend or distribution declared or paid in respect of the Company’s capital stock and (D) the Company and its subsidiaries have not incurred any short-term debt or long-term debt that is, in either case, material with respect to the Company and its subsidiaries taken as a whole (excluding debt resulting from a draw down on the Company’s credit facilities).
(x) There is no pending or, to the knowledge of the Company, threatened action, suit or proceeding, legal or governmental, to which the Company or any of its subsidiaries is a party, before or by any court or governmental agency or body, that is required to be described in the Prospectus and is not so described.
(xi) There are no contracts, agreements or understandings of the Company or any of its subsidiaries that are required to be filed as exhibits to the Registration Statement by the Securities Act or by the Securities Act Rules and Regulations that have not been so filed or incorporated by reference therein as permitted by the Securities Act Rules and Regulations.
(xii) This Agreement has been duly authorized, executed and delivered by the Company.
(xiii) The execution, delivery and performance of this Agreement, the issuance and sale of the Shares and the consummation of the transactions contemplated herein and the Prospectus (including the issuance and sale of the Shares and the use of the proceeds from the sale of the Shares as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or result in a breach or violation of any of the terms and provisions of, constitute a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any of its subsidiaries pursuant to, any agreement, indenture, mortgage, lease or other instrument to which the Company or any of its subsidiaries is a party or by which it or any of its properties or assets may be bound nor will such action result in any violation of the Company’s or any of its subsidiaries’ charter, bylaws or other organizational documents, or any order, law, statute, rule, regulation, judgment, order, writ or decree of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Company or any of its subsidiaries or any of their respective assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its subsidiaries.
Appears in 2 contracts
Sources: Underwriting Agreement (General Electric Co), Underwriting Agreement (General Electric Co)
Representations and Warranties by the Company. The Company represents and warrants to the Sales Manager as of the date hereof and as of each Representation Date (as defined herein) on which a certificate is required to be delivered pursuant to Section 7(n7(m) of this Agreement and as of the time of each sale of any Shares or any securities pursuant to this Agreement (the “Applicable Time”), and agrees with the Sales Manager, as follows:
(i) The Company meets the requirements for use of Form N-2 under the Securities Act and the Securities Act Rules and Regulations. At the time the Registration Statement became effective, the Registration Statement complied in all material respects with the requirements of the Securities Act and the Securities Act Rules and Regulations and did not include 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 Prospectus complied, as of its date, in all material respects, with the requirements of the Securities Act and the Securities Act Rules and Regulations as of the Applicable Time, did not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; the Prospectus, as of the date of the Prospectus Supplement, will comply in all material respects with the requirements of the Securities Act and the Securities Act Rules and Regulations, and the Prospectus, as of the date of the Prospectus Supplement and the Applicable Time, did not and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the representations and warranties in this subsection shall not apply to statements in or omissions from the Registration Statement or Prospectus or any amendments or supplements thereto made in reliance upon and in conformity with information relating to the Sales Manager furnished to the Company in writing by the Sales Manager expressly for use in the Registration Statement or Prospectus, it being understood and agreed that the only such information furnished by the Sales Manager consists of the following information in the Prospectus Supplement furnished on behalf the Sales Manager: the last paragraph under the caption “Plan of DistributionDistribution - General.” The Shares have been duly registered under the Securities Act pursuant to the Registration Statement. Each of the Registration Statement, any Rule 462(b) Registration Statement and any post-effective amendments thereto has become effective, and no order suspending the effectiveness of the Registration Statement has been issued by the Commission.
(ii) The Registration Statement has become effective; the Commission has not issued, and is not, to the knowledge of the Company, threatening to issue, any stop order under the Securities Act or other order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto, and no proceedings for such purpose have been instituted or are pending or, to the best knowledge of the Company Company, are contemplated or threatened by the Commission.
(iii) The Company has elected to be regulated by the Commission as a business development company under the Investment Company Act of 1940, as amended (the “Investment Company Act”), and has not withdrawn that election, and the Commission has not ordered that such election be withdrawn nor nor, to the best of the Company’s knowledge knowledge, have proceedings to effectuate such withdrawal been initiated or threatened by the Commission.
(iv) To the Company’s knowledge, PricewaterhouseCoopers LLP, the accounting firm that audited the financial statements of the Company set forth in the Registration Statement and Prospectus, were was and are is an independent registered accounting firms firm as required by the Securities Act and the Securities Act Rules and Regulations and the rules and regulations of the Public Company Accounting Oversight Board.
(v) The financial statements, together with the related schedules and notes thereto, of the Company set forth in the Registration Statement and the Prospectus fairly present in all material respects the results of operations and financial condition of the Company and its subsidiaries as of the dates indicated and the results of their operations for the respective periods specified, and are prepared in conformity with U.S. generally accepted accounting principles principles, and the selected financial information and data included in the Registration Statement and the Prospectus have been prepared on a basis consistent with that of the books and records of the Company. All disclosures contained in the Registration Statement or the Prospectus regarding "non-GAAP financial measures" (as such term is defined by the rules and regulations of the Commission), if any, comply in all material respects with Regulation G under the Securities and Exchange Act of 1934 ("Exchange Act") and Item 10 of Regulation S-K of the Securities Act Rules and Regulations.
(vi) The Company (A) has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of MarylandDelaware, has full corporate power and authority to conduct its business as described in the Prospectus; (B) has full power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby; and (C) is duly licensed or qualified to do business as a foreign corporation and in good standing in each jurisdiction where the Company is required to be qualified or licensed or in good standing, except where the failure to be so qualified or licensed or to be in good standing would not result in a material adverse effect upon the financial condition, business or operations of the Company and its subsidiaries, taken as a whole (“Material Adverse Effect”).
(vii) The Company is not, or with the giving of notice or lapse of time or both would not be, in default or violation with respect to its charter or bylaws or governing documents. The Company is not, or with the giving of notice or lapse of time or both would not be, in default in the performance or observance of any obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which the Company is a party or by which the Company is bound or to which any of the properties or assets of the Company is subject, or in violation of any statutes, laws, ordinances or governmental rules or regulations or any orders or decrees to which it is subject, except where such default or violation would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect, whether or not arising from transactions in the ordinary course of business.
(viii) The Company’s authorized capitalization is as set forth in the Prospectus; the outstanding shares of Common Stock have been duly authorized and validly issued and are fully paid and non-assessable and conform in all material respects to the description thereof in the Prospectus under the heading “Description of Capital Stock;” the Shares have been duly authorized by all requisite corporate action on the part of the Company for the issuance and sale of the Shares to the Sales Manager pursuant to this Agreement and, when the Shares are delivered and paid for pursuant to this Agreement on the Applicable Time, such Shares will have been validly issued and fully paid and non-assessable. The stockholders of the Company have no preemptive rights with respect to the Shares and none of the outstanding shares of capital stock of the Company have been issued in violation of any preemptive rights of any security holder.
(ix) Except as set forth in the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, (A) the Company and its subsidiaries have not incurred any liabilities or obligations, direct or contingent, or entered into any transactions, other than in the ordinary course of business, that are material to the Company and its subsidiaries taken as a whole, (B) there has not been any material change in the capital stock of the Company, or any material adverse change, or, to the Company’s knowledge, any development involving a prospective material adverse change, in the condition (financial or otherwise), business, net worth, property or results of operations of the Company (excluding changes due to investment activities in the ordinary course of business), (C) there has been no dividend or distribution declared or paid in respect of the Company’s capital stock and (D) the Company and its subsidiaries have not incurred any short-term debt or long-term debt that is, in either case, material with respect to the Company and its subsidiaries taken as a whole (excluding debt resulting from a draw down on the Company’s credit facilities).
(x) There is no pending or, to the knowledge of the Company, threatened action, suit or proceeding, legal or governmental, to which the Company or any of its subsidiaries is a party, before or by any court or governmental agency or body, that is required to be described in the Prospectus and is not so described.
(xi) There are no contracts, agreements or understandings of the Company or any of its subsidiaries that are required to be filed as exhibits to the Registration Statement by the Securities Act or by the Securities Act Rules and Regulations that have not been so filed or incorporated by reference therein as permitted by the Securities Act Rules and Regulations.
(xii) This Agreement has been duly authorized, executed and delivered by the Company.
(xiii) The execution, delivery and performance of this Agreement, the issuance and sale of the Shares and the consummation of the transactions contemplated herein and in the Prospectus (including the issuance and sale of the Shares and the use of the proceeds from the sale of the Shares as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or result in a breach or violation of any of the terms and provisions of, constitute a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any of its subsidiaries pursuant to, any agreement, indenture, mortgage, lease or other instrument to which the Company or any of its subsidiaries is a party or by which it or any of its properties or assets may be bound bound, nor will such action result in any violation of the Company’s or any of its subsidiaries’ charter, bylaws or other organizational documents, or any order, law, statute, rule, regulation, judgment, order, writ or decree of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Company or any of its subsidiaries or any of their respective assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its subsidiaries.
Appears in 2 contracts
Sources: Equity Distribution Agreement (Harvest Capital Credit Corp), Equity Distribution Agreement (Harvest Capital Credit Corp)
Representations and Warranties by the Company. The Company represents and warrants to each of the Sales Manager Underwriters, as of the date hereof and as of each Representation Date hereof, the Applicable Time (as defined hereinhereinafter defined), the Closing Time (as hereinafter defined) on which and each Date of Delivery, if any (as hereinafter defined) (in each case, a certificate is required to be delivered pursuant to Section 7(n) of this Agreement and as of the time of each sale of any Shares or any securities pursuant to this Agreement (the “Applicable TimeRepresentation Date”), and agrees with the Sales Manager, as follows:
(i) The Company meets the requirements for use of Form N-2 S-3 in connection with the issuance of its securities, including the Shares. The Registration Statement was declared effective by the Commission under the Securities 1933 Act, and no stop order suspending the effectiveness of the Registration Statement or any part thereof has been issued under the 1933 Act and no proceedings for that purpose have been instituted or are pending or, to the Securities Act Rules knowledge of the Company, are contemplated by the Commission or by the state securities authority of any jurisdiction, and Regulationsany request on the part of the Commission for additional information has been complied with. At the time respective times the Original Registration Statement and any post-effective amendments thereto became effectiveeffective and at each deemed effective date with respect to the Underwriters pursuant to Rule 430B(f)(2) of the 1933 Act Regulations, the Registration Statement complied and any amendments and supplements thereto complied, comply and will comply in all material respects with the requirements of the Securities 1933 Act and the Securities 1933 Act Rules and Regulations Regulations, and did not, do not include any 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; . Neither the Prospectus compliednor any amendments or supplements thereto, as at the time the Prospectus or any such amendment or supplement was first used, at the Closing Time and at any Date of its dateDelivery, in all material respectsincluded, with the requirements of the Securities Act and the Securities Act Rules and Regulations as of the Applicable Time, did not contain any 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, base prospectus filed as part of the date of Original Registration Statement or any amendment thereto) complied when filed with the Prospectus Supplement, will comply Commission in all material respects with the requirements of the Securities 1933 Act and the Securities 1933 Act Rules Regulations and Regulationsany such preliminary prospectus was, and the ProspectusProspectus delivered or made available to the Underwriters for use in connection with this offering will be at the time of such delivery, as identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T. As of the date of the Prospectus Supplement and the Applicable Time, did neither (x) any Issuer Free Writing Prospectus (as defined below) identified on Schedule C hereto issued at or prior to the Applicable Time, the Statutory Prospectus (as defined below) and the information to be conveyed orally by the Underwriters to purchasers of the Shares at the Applicable Time as set forth in Schedule B hereto, all considered together (collectively, the “General Disclosure Package”), nor (y) any Issuer Free Writing Prospectus not and will not contain identified on Schedule C hereto, when considered together with the General Disclosure Package, included any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the . The representations and warranties in this subsection the preceding three paragraphs shall not apply to statements in or omissions from the Registration Statement or Prospectus any post-effective amendment thereto, any preliminary prospectus, the Prospectus, or any amendments or supplements thereto thereto, or the General Disclosure Package made in reliance upon and in conformity with information relating to the Sales Manager furnished to the Company in writing by or on behalf of any Underwriter through the Sales Manager Representatives expressly for use in the Registration Statement or Prospectus, it being understood and agreed that (including the only such information furnished by prospectus filed with the Sales Manager consists of the following information in the Prospectus Supplement furnished on behalf the Sales Manager: the last paragraph under the caption “Plan of Distribution.” The Shares have been duly registered under the Securities Act pursuant to the Original Registration Statement. Each of the Registration Statement, any Rule 462(b) Registration Statement and any post-effective amendments thereto has become effective, and no order suspending the effectiveness of the Registration Statement has been issued by the Commission.
(ii) The Registration Statement has become effective; the Commission has not issued, and is not, to the knowledge of the Company, threatening to issue, any stop order under the Securities Act or other order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto, and no proceedings for such purpose have been instituted or are pending orany preliminary prospectus, to the best knowledge of the Company are contemplated or threatened by the Commission.
(iii) The Company has elected to be regulated by the Commission as a business development company under the Investment Company Act of 1940, as amended (the “Investment Company Act”), and has not withdrawn that election, and the Commission has not ordered that such election be withdrawn nor to the best of the Company’s knowledge have proceedings to effectuate such withdrawal been initiated or threatened by the Commission.
(iv) To the Company’s knowledge, PricewaterhouseCoopers LLP, the accounting firm that audited the financial statements of the Company set forth in the Registration Statement and Prospectus, were and are independent registered accounting firms as required by the Securities Act and the Securities Act Rules and Regulations and the rules and regulations of the Public Company Accounting Oversight Board.
(v) The financial statements, together with the related schedules and notes thereto, of the Company set forth in the Registration Statement and the Prospectus fairly present in all material respects the results of operations and financial condition of the Company and its subsidiaries as of the dates indicated and the results of their operations for the respective periods specified, and are prepared in conformity with U.S. generally accepted accounting principles and the selected financial information and data included in the Registration Statement and the Prospectus have been prepared on a basis consistent with that of the books and records of the Company.
(vi) The Company (A) has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland, has full corporate power and authority to conduct its business as described in the Prospectus; (B) has full power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby; and (C) is duly licensed or qualified to do business as a foreign corporation and in good standing in each jurisdiction where the Company is required to be qualified or licensed or in good standing, except where the failure to be so qualified or licensed or to be in good standing would not result in a material adverse effect upon the financial condition, business or operations of the Company and its subsidiaries, taken as a whole (“Material Adverse Effect”).
(vii) The Company is not, or with the giving of notice or lapse of time or both would not be, in default or violation with respect to its charter or bylaws or governing documents. The Company is not, or with the giving of notice or lapse of time or both would not be, in default in the performance or observance of any obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which the Company is a party or by which the Company is bound or to which any of the properties or assets of the Company is subject, or in violation of any statutes, laws, ordinances or governmental rules or regulations or any orders or decrees to which it is subject.
(viii) The Company’s authorized capitalization is as set forth in the Prospectus; the outstanding shares of Common Stock have been duly authorized and validly issued and are fully paid and non-assessable and conform in all material respects to the description thereof in the Prospectus under the heading “Description of Capital Stock;” the Shares have been duly authorized by all requisite corporate action on the part of the Company for the issuance and sale of the Shares to the Sales Manager pursuant to this Agreement and, when the Shares are delivered and paid for pursuant to this Agreement on the Applicable Time, such Shares will have been validly issued and fully paid and non-assessable. The stockholders of the Company have no preemptive rights with respect to the Shares and none of the outstanding shares of capital stock of the Company have been issued in violation of any preemptive rights of any security holder.
(ix) Except as set forth in the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, (A) the Company and its subsidiaries have not incurred or any liabilities amendments or obligations, direct or contingentsupplements thereto, or entered into any transactions, other than in the ordinary course of business, that are material to the Company and its subsidiaries taken as a whole, (B) there has not been any material change in the capital stock of the Company, or any material adverse change, or, to the Company’s knowledge, any development involving a prospective material adverse change, in the condition (financial or otherwise), business, net worth, property or results of operations of the Company (excluding changes due to investment activities in the ordinary course of business), (C) there has been no dividend or distribution declared or paid in respect of the Company’s capital stock and (D) the Company and its subsidiaries have not incurred any short-term debt or long-term debt that is, in either case, material with respect to the Company and its subsidiaries taken as a whole (excluding debt resulting from a draw down on the Company’s credit facilities).
(x) There is no pending or, to the knowledge of the Company, threatened action, suit or proceeding, legal or governmental, to which the Company or any of its subsidiaries is a party, before or by any court or governmental agency or body, that is required to be described in the Prospectus and is not so described.
(xi) There are no contracts, agreements or understandings of the Company or any of its subsidiaries that are required to be filed as exhibits to the Registration Statement by the Securities Act or by the Securities Act Rules and Regulations that have not been so filed or incorporated by reference therein as permitted by the Securities Act Rules and Regulations.
(xii) This Agreement has been duly authorized, executed and delivered by the Company.
(xiii) The execution, delivery and performance of this Agreement, the issuance and sale of the Shares and the consummation of the transactions contemplated herein and the Prospectus (including the issuance and sale of the Shares and the use of the proceeds from the sale of the Shares as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or result in a breach or violation of any of the terms and provisions of, constitute a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any of its subsidiaries pursuant to, any agreement, indenture, mortgage, lease or other instrument to which the Company or any of its subsidiaries is a party or by which it or any of its properties or assets may be bound nor will such action result in any violation of the Company’s or any of its subsidiaries’ charter, bylaws or other organizational documents, or any order, law, statute, rule, regulation, judgment, order, writ or decree of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Company or any of its subsidiaries or any of their respective assets, properties or operationsGeneral Disclosure Package. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its subsidiaries.in this subsection and elsewhere in this Agreement:
Appears in 2 contracts
Sources: Underwriting Agreement (Newcastle Investment Corp), Underwriting Agreement (Newcastle Investment Corp)
Representations and Warranties by the Company. The Company hereby represents and warrants to the Sales Manager Underwriters as of the date hereof and hereof, as of each Representation Date the Applicable Time (as defined herein) on which a certificate is required to be delivered pursuant to Section 7(n) of this Agreement below), and as of the time of each sale of any Shares or any securities pursuant Closing Date referred to this Agreement (the “Applicable Time”)in Section 2(b) hereof, and agrees with the Sales ManagerUnderwriters, as follows:
(i1) The Company meets the requirements for use of Form N-2 S-3 under the Securities 1933 Act. The Registration Statement and any post-effective amendments thereto have become effective under the 1933 Act. No stop order suspending the effectiveness of the Registration Statement has been issued under the 1933 Act and no proceedings for that purpose have been instituted or are pending or, to the Securities Act Rules knowledge of the Company, are contemplated by the Commission, and Regulationsany request on the part of the Commission for additional information has been complied with. At the time respective times the Registration Statement and any post-effective amendments thereto became or become effective, at each deemed effective date of the Registration Statement with respect to the Underwriters pursuant to Rule 430B(f)(2) of the 1933 Act Regulations and at the Closing Date, the Registration Statement complied and will comply in all material respects with the requirements of the Securities 1933 Act and the Securities 1933 Act Rules and Regulations Regulations, and did not include any 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 Prospectus and any amendments or supplements thereto, at the time the Prospectus complied, as of its date, or any such amendment or supplement was issued and at the Closing Date complied and will comply in all material respects, respects with the requirements of the Securities 1933 Act and the Securities 1933 Act Rules Regulations and Regulations as of the Applicable Time, did not contain any and will not 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 Prospectus, . Each preliminary prospectus (including any prospectus or prospectuses filed as part of the date of Registration Statement at the Prospectus Supplementtime it originally became effective or any amendment thereto), will comply complied when so filed in all material respects with the requirements 1933 Act and the 1933 Act Regulations, and each preliminary prospectus and the Prospectus delivered to the Underwriters for use in connection with the offering of the Securities Act and was identical to the Securities Act Rules and Regulationselectronically transmitted copies thereof filed with the Commission through ▇▇▇▇▇, and except to the Prospectus, as extent permitted by Regulation S-T. As of the date of the Prospectus Supplement and the Applicable Time, did not neither (x) the Issuer General Use Free Writing Prospectus(es) (as defined below) issued at or prior to the Applicable Time (as defined below), each preliminary prospectus issued at or prior to the Applicable Time and will not contain the information included on Schedule III hereto all considered together (collectively, the “Disclosure Package”), nor (y) any individual Issuer Limited Use Free Writing Prospectus (as defined below), when considered together with the Disclosure Package, included any untrue statement of a material fact or omit omitted 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; provided, however, that the representations and warranties . As used in this subsection shall not apply to statements and elsewhere in or omissions from the Registration Statement or Prospectus or any amendments or supplements thereto made in reliance upon and in conformity with information relating to the Sales Manager furnished to the Company in writing by the Sales Manager expressly for use in the Registration Statement or Prospectus, it being understood and agreed that the only such information furnished by the Sales Manager consists of the following information in the Prospectus Supplement furnished on behalf the Sales Manager: the last paragraph under the caption “Plan of Distribution.” The Shares have been duly registered under the Securities Act pursuant to the Registration Statement. Each of the Registration Statement, any Rule 462(b) Registration Statement and any post-effective amendments thereto has become effective, and no order suspending the effectiveness of the Registration Statement has been issued by the Commission.
(ii) The Registration Statement has become effective; the Commission has not issued, and is not, to the knowledge of the Company, threatening to issue, any stop order under the Securities Act or other order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto, and no proceedings for such purpose have been instituted or are pending or, to the best knowledge of the Company are contemplated or threatened by the Commission.
(iii) The Company has elected to be regulated by the Commission as a business development company under the Investment Company Act of 1940, as amended (the “Investment Company Act”), and has not withdrawn that election, and the Commission has not ordered that such election be withdrawn nor to the best of the Company’s knowledge have proceedings to effectuate such withdrawal been initiated or threatened by the Commission.
(iv) To the Company’s knowledge, PricewaterhouseCoopers LLP, the accounting firm that audited the financial statements of the Company set forth in the Registration Statement and Prospectus, were and are independent registered accounting firms as required by the Securities Act and the Securities Act Rules and Regulations and the rules and regulations of the Public Company Accounting Oversight Board.
(v) The financial statements, together with the related schedules and notes thereto, of the Company set forth in the Registration Statement and the Prospectus fairly present in all material respects the results of operations and financial condition of the Company and its subsidiaries as of the dates indicated and the results of their operations for the respective periods specified, and are prepared in conformity with U.S. generally accepted accounting principles and the selected financial information and data included in the Registration Statement and the Prospectus have been prepared on a basis consistent with that of the books and records of the Company.
(vi) The Company (A) has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland, has full corporate power and authority to conduct its business as described in the Prospectus; (B) has full power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby; and (C) is duly licensed or qualified to do business as a foreign corporation and in good standing in each jurisdiction where the Company is required to be qualified or licensed or in good standing, except where the failure to be so qualified or licensed or to be in good standing would not result in a material adverse effect upon the financial condition, business or operations of the Company and its subsidiaries, taken as a whole (“Material Adverse Effect”).
(vii) The Company is not, or with the giving of notice or lapse of time or both would not be, in default or violation with respect to its charter or bylaws or governing documents. The Company is not, or with the giving of notice or lapse of time or both would not be, in default in the performance or observance of any obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which the Company is a party or by which the Company is bound or to which any of the properties or assets of the Company is subject, or in violation of any statutes, laws, ordinances or governmental rules or regulations or any orders or decrees to which it is subject.
(viii) The Company’s authorized capitalization is as set forth in the Prospectus; the outstanding shares of Common Stock have been duly authorized and validly issued and are fully paid and non-assessable and conform in all material respects to the description thereof in the Prospectus under the heading “Description of Capital Stock;” the Shares have been duly authorized by all requisite corporate action on the part of the Company for the issuance and sale of the Shares to the Sales Manager pursuant to this Agreement and, when the Shares are delivered and paid for pursuant to this Agreement on the Applicable Time, such Shares will have been validly issued and fully paid and non-assessable. The stockholders of the Company have no preemptive rights with respect to the Shares and none of the outstanding shares of capital stock of the Company have been issued in violation of any preemptive rights of any security holder.
(ix) Except as set forth in the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, (A) the Company and its subsidiaries have not incurred any liabilities or obligations, direct or contingent, or entered into any transactions, other than in the ordinary course of business, that are material to the Company and its subsidiaries taken as a whole, (B) there has not been any material change in the capital stock of the Company, or any material adverse change, or, to the Company’s knowledge, any development involving a prospective material adverse change, in the condition (financial or otherwise), business, net worth, property or results of operations of the Company (excluding changes due to investment activities in the ordinary course of business), (C) there has been no dividend or distribution declared or paid in respect of the Company’s capital stock and (D) the Company and its subsidiaries have not incurred any short-term debt or long-term debt that is, in either case, material with respect to the Company and its subsidiaries taken as a whole (excluding debt resulting from a draw down on the Company’s credit facilities).
(x) There is no pending or, to the knowledge of the Company, threatened action, suit or proceeding, legal or governmental, to which the Company or any of its subsidiaries is a party, before or by any court or governmental agency or body, that is required to be described in the Prospectus and is not so described.
(xi) There are no contracts, agreements or understandings of the Company or any of its subsidiaries that are required to be filed as exhibits to the Registration Statement by the Securities Act or by the Securities Act Rules and Regulations that have not been so filed or incorporated by reference therein as permitted by the Securities Act Rules and Regulations.
(xii) This Agreement has been duly authorized, executed and delivered by the Company.
(xiii) The execution, delivery and performance of this Agreement, the issuance and sale of the Shares and the consummation of the transactions contemplated herein and the Prospectus (including the issuance and sale of the Shares and the use of the proceeds from the sale of the Shares as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or result in a breach or violation of any of the terms and provisions of, constitute a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any of its subsidiaries pursuant to, any agreement, indenture, mortgage, lease or other instrument to which the Company or any of its subsidiaries is a party or by which it or any of its properties or assets may be bound nor will such action result in any violation of the Company’s or any of its subsidiaries’ charter, bylaws or other organizational documents, or any order, law, statute, rule, regulation, judgment, order, writ or decree of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Company or any of its subsidiaries or any of their respective assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its subsidiaries.:
Appears in 2 contracts
Sources: Underwriting Agreement (LXP Industrial Trust), Underwriting Agreement (Lexington Realty Trust)
Representations and Warranties by the Company. The Company represents and warrants to the Sales Manager each Underwriter as of the date hereof and as of each Representation Date the Closing Time referred to in Section 2(c) hereof (as defined herein) on which a certificate is required to be delivered pursuant to Section 7(n) of this Agreement and as of the time of each sale of any Shares or any securities pursuant to this Agreement (the “Applicable Time”unless otherwise specified), and agrees with the Sales Managereach Underwriter, as follows:
(i) The Company meets Registration Statement has become effective, no stop order suspending the requirements for use effectiveness of Form N-2 under the Securities Act and the Securities Act Rules and Regulations. At the time the Registration Statement is in effect and no proceedings for such purpose are pending before or threatened by the Commission. The Company is a well-known seasoned issuer (as defined in Rule 405 under the 1933 Act) eligible to use the Registration Statement as an automatic shelf registration statement and the Company has not received notice that the Commission objects to the use of the Registration Statement as an automatic shelf registration statement.
(a) The Registration Statement, when it became effective, the Registration Statement complied in all material respects with the requirements of the Securities Act and the Securities Act Rules and Regulations and did not include contain, and as amended or supplemented, if applicable, will not contain 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; , (b) the Registration Statement as of the date hereof does not contain 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, (c) the Registration Statement and the Prospectus compliedcomply, and as of its dateamended or supplemented, if applicable, will comply in all material respects, respects with the requirements of the Securities 1933 Act and the Securities Act Rules applicable rules and Regulations as regulations of the Applicable Commission thereunder, (d) the Time of Sale Prospectus does not, and at the time of each sale of the Notes in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Time, did the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (e) each electronic road show related to the offering of the Notes, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; misleading and (f) the ProspectusProspectus does not contain and, as of the date of the Prospectus Supplementamended or supplemented, will comply in all material respects with the requirements of the Securities Act and the Securities Act Rules and Regulationsif applicable, and the Prospectus, as of the date of the Prospectus Supplement and the Applicable Time, did not and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the . The representations and warranties in this subsection shall not apply to statements in or omissions from the Registration Statement or Statement, the Time of Sale Prospectus or any amendments or supplements thereto the Prospectus made in reliance upon and in conformity with information relating to the Sales Manager furnished to the Company in writing by any Underwriter through the Sales Manager Representatives expressly for use in the Registration Statement or Prospectus, it being understood and agreed that the only such information furnished by the Sales Manager consists of the following information in the Prospectus Supplement furnished on behalf the Sales Manager: the last paragraph under the caption “Plan of Distributiontherein.” The Shares have been duly registered under the Securities Act pursuant to the Registration Statement. Each of the Registration Statement, any Rule 462(b) Registration Statement and any post-effective amendments thereto has become effective, and no order suspending the effectiveness of the Registration Statement has been issued by the Commission.
(ii) The Registration Statement has become effective; the Commission has not issued, and is not, to the knowledge of the Company, threatening to issue, any stop order under the Securities Act or other order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto, and no proceedings for such purpose have been instituted or are pending or, to the best knowledge of the Company are contemplated or threatened by the Commission.
(iii) The Company has elected to be regulated by the Commission as a business development company under the Investment Company Act of 1940, as amended (the “Investment Company Act”), and has not withdrawn that election, and the Commission has not ordered that such election be withdrawn nor to the best of the Company’s knowledge have proceedings to effectuate such withdrawal been initiated or threatened by the Commission.
(iv) To the Company’s knowledge, PricewaterhouseCoopers LLP, the accounting firm that audited the financial statements of the Company set forth in the Registration Statement and Prospectus, were and are independent registered accounting firms as required by the Securities Act and the Securities Act Rules and Regulations and the rules and regulations of the Public Company Accounting Oversight Board.
(v) The financial statements, together with the related schedules and notes thereto, of the Company set forth in the Registration Statement and the Prospectus fairly present in all material respects the results of operations and financial condition of the Company and its subsidiaries as of the dates indicated and the results of their operations for the respective periods specified, and are prepared in conformity with U.S. generally accepted accounting principles and the selected financial information and data included in the Registration Statement and the Prospectus have been prepared on a basis consistent with that of the books and records of the Company.
(vi) The Company (A) has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland, has full corporate power and authority to conduct its business as described in the Prospectus; (B) has full power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby; and (C) is duly licensed or qualified to do business as a foreign corporation and in good standing in each jurisdiction where the Company is required to be qualified or licensed or in good standing, except where the failure to be so qualified or licensed or to be in good standing would not result in a material adverse effect upon the financial condition, business or operations of the Company and its subsidiaries, taken as a whole (“Material Adverse Effect”).
(vii) The Company is not, or with the giving of notice or lapse of time or both would not be, in default or violation with respect to its charter or bylaws or governing documents. The Company is not, or with the giving of notice or lapse of time or both would not be, in default in the performance or observance of any obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which the Company is a party or by which the Company is bound or to which any of the properties or assets of the Company is subject, or in violation of any statutes, laws, ordinances or governmental rules or regulations or any orders or decrees to which it is subject.
(viii) The Company’s authorized capitalization is as set forth in the Prospectus; the outstanding shares of Common Stock have been duly authorized and validly issued and are fully paid and non-assessable and conform in all material respects to the description thereof in the Prospectus under the heading “Description of Capital Stock;” the Shares have been duly authorized by all requisite corporate action on the part of the Company for the issuance and sale of the Shares to the Sales Manager pursuant to this Agreement and, when the Shares are delivered and paid for pursuant to this Agreement on the Applicable Time, such Shares will have been validly issued and fully paid and non-assessable. The stockholders of the Company have no preemptive rights with respect to the Shares and none of the outstanding shares of capital stock of the Company have been issued in violation of any preemptive rights of any security holder.
(ix) Except as set forth in the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, (A) the Company and its subsidiaries have not incurred any liabilities or obligations, direct or contingent, or entered into any transactions, other than in the ordinary course of business, that are material to the Company and its subsidiaries taken as a whole, (B) there has not been any material change in the capital stock of the Company, or any material adverse change, or, to the Company’s knowledge, any development involving a prospective material adverse change, in the condition (financial or otherwise), business, net worth, property or results of operations of the Company (excluding changes due to investment activities in the ordinary course of business), (C) there has been no dividend or distribution declared or paid in respect of the Company’s capital stock and (D) the Company and its subsidiaries have not incurred any short-term debt or long-term debt that is, in either case, material with respect to the Company and its subsidiaries taken as a whole (excluding debt resulting from a draw down on the Company’s credit facilities).
(x) There is no pending or, to the knowledge of the Company, threatened action, suit or proceeding, legal or governmental, to which the Company or any of its subsidiaries is a party, before or by any court or governmental agency or body, that is required to be described in the Prospectus and is not so described.
(xi) There are no contracts, agreements or understandings of the Company or any of its subsidiaries that are required to be filed as exhibits to the Registration Statement by the Securities Act or by the Securities Act Rules and Regulations that have not been so filed or incorporated by reference therein as permitted by the Securities Act Rules and Regulations.
(xii) This Agreement has been duly authorized, executed and delivered by the Company.
(xiii) The execution, delivery and performance of this Agreement, the issuance and sale of the Shares and the consummation of the transactions contemplated herein and the Prospectus (including the issuance and sale of the Shares and the use of the proceeds from the sale of the Shares as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or result in a breach or violation of any of the terms and provisions of, constitute a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any of its subsidiaries pursuant to, any agreement, indenture, mortgage, lease or other instrument to which the Company or any of its subsidiaries is a party or by which it or any of its properties or assets may be bound nor will such action result in any violation of the Company’s or any of its subsidiaries’ charter, bylaws or other organizational documents, or any order, law, statute, rule, regulation, judgment, order, writ or decree of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Company or any of its subsidiaries or any of their respective assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its subsidiaries.
Appears in 2 contracts
Sources: Underwriting Agreement (Quest Diagnostics Inc), Underwriting Agreement (Quest Diagnostics Inc)
Representations and Warranties by the Company. The Company represents and warrants to the Sales Manager to, and agrees with, each holder of Registrable Securities that:
(a) each registration statement, as supplemented or amended, covering Registrable Securities at its effective date and each prospectus (including any preliminary prospectus) as of the date hereof and as of each Representation Date (as defined herein) on which a certificate is required to be delivered pursuant to Section 7(n) such prospectus, or, in the case of this Agreement and as an underwritten offering of Registrable Securities, at the time of each sale of any Shares or any securities pursuant to this Agreement (the “Applicable Time”), and agrees with the Sales Manager, as follows:
(i) The Company meets the requirements for use of Form N-2 closing under the Securities Act and the Securities Act Rules and Regulations. At the time the Registration Statement became effectiveunderwriting agreement related thereto, the Registration Statement complied will conform in all material respects with to the requirements of the Securities Act and the Securities Act Rules and Regulations and did will not include any contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and at all times subsequent to the Prospectus compliedeffective date of such registration statement when a prospectus would be required to be delivered under the Securities Act, other than from such time as the Company has delivered a Suspension Notice to such holder of Registrable Securities pursuant to Section 1(c) until such time as the Company has delivered a notice withdrawing such Suspension Notice to such holder of Registrable Securities, each such registration statement and each prospectus contained therein, as of its datethen amended or supplemented, will conform in all material respects, with respects to the requirements of the Securities Act and the Securities Act Rules and Regulations as of the Applicable Time, did will not contain any an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; the Prospectus, as of the date of the Prospectus Supplement, will comply in all material respects with the requirements of the Securities Act and the Securities Act Rules and Regulations, and the Prospectus, as of the date of the Prospectus Supplement and the Applicable Time, did not and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, therein not misleading; provided, however, that the representations this representation and warranties in this subsection warranty shall not apply to any statements in or omissions from the Registration Statement or Prospectus or any amendments or supplements thereto made in reliance upon and in conformity with information relating to the Sales Manager furnished in writing to the Company in writing by the Sales Manager a holder of Registrable Securities expressly for use therein;
(b) any documents incorporated by reference in any prospectus referred to in Section 4, when they become or became effective or are or were filed with the Registration Statement Commission, as the case may be, as then amended or Prospectussupplemented, it being understood and agreed that the only such information furnished by the Sales Manager consists of the following information will conform or conformed in the Prospectus Supplement furnished on behalf the Sales Manager: the last paragraph under the caption “Plan of Distribution.” The Shares have been duly registered under the Securities Act pursuant all material respects to the Registration Statement. Each requirements of the Registration Statement, any Rule 462(b) Registration Statement and any post-effective amendments thereto has become effective, and no order suspending the effectiveness of the Registration Statement has been issued by the Commission.
(ii) The Registration Statement has become effective; the Commission has not issued, and is not, to the knowledge of the Company, threatening to issue, any stop order under the Securities Act or other order suspending the effectiveness United States Securities Exchange Act of the Registration Statement or any post-effective amendment thereto1934, as amended, as applicable, and no proceedings for none of such purpose have been instituted documents will contain an untrue statement of a material fact or are pending or, will omit to the best knowledge of the Company are contemplated or threatened by the Commission.
(iii) The Company has elected state a material fact required to be regulated by stated therein or necessary to make the Commission as a business development company under the Investment Company Act of 1940statements therein not misleading; provided, as amended (the “Investment Company Act”)however, that this representation and has warranty shall not withdrawn that election, apply to any statements or omissions made in reliance upon and the Commission has not ordered that such election be withdrawn nor to the best of the Company’s knowledge have proceedings to effectuate such withdrawal been initiated or threatened by the Commission.
(iv) To the Company’s knowledge, PricewaterhouseCoopers LLP, the accounting firm that audited the financial statements of the Company set forth in the Registration Statement and Prospectus, were and are independent registered accounting firms as required by the Securities Act and the Securities Act Rules and Regulations and the rules and regulations of the Public Company Accounting Oversight Board.
(v) The financial statements, together with the related schedules and notes thereto, of the Company set forth in the Registration Statement and the Prospectus fairly present in all material respects the results of operations and financial condition of the Company and its subsidiaries as of the dates indicated and the results of their operations for the respective periods specified, and are prepared in conformity with U.S. generally accepted accounting principles and information furnished in writing to the selected financial information and data included in Company by a holder of Registrable Securities expressly for use therein;
(c) the Registration Statement and compliance by the Prospectus have been prepared on a basis consistent Company with that all of the books and records provisions of the Company.
(vi) The Company (A) has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland, has full corporate power and authority to conduct its business as described in the Prospectus; (B) has full power and authority to execute and deliver this Agreement and to consummate the consummation of the transactions herein contemplated hereby; and will not (Ci) is duly licensed conflict with or qualified to do business as a foreign corporation and in good standing in each jurisdiction where the Company is required to be qualified or licensed or in good standing, except where the failure to be so qualified or licensed or to be in good standing would not result in a material adverse effect upon the financial condition, business or operations breach of any of the Company and its subsidiaries, taken as a whole (“Material Adverse Effect”).
(vii) The Company is notterms or provisions of, or with the giving of notice or lapse of time or both would not beconstitute a default under, in default or violation with respect to its charter or bylaws or governing documents. The Company is not, or with the giving of notice or lapse of time or both would not be, in default in the performance or observance of any obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease agreement or other agreement or instrument to which the Company or any subsidiary is a party or by which the Company or any subsidiary is bound or to which any of the properties or assets of the Company is subject, or in violation of any statutes, laws, ordinances or governmental rules or regulations or any orders or decrees to which it is subject.
(viii) The Company’s authorized capitalization is as set forth in the Prospectus; the outstanding shares of Common Stock have been duly authorized and validly issued and are fully paid and non-assessable and conform in all material respects to the description thereof in the Prospectus under the heading “Description of Capital Stock;” the Shares have been duly authorized by all requisite corporate action on the part of the Company for the issuance and sale of the Shares to the Sales Manager pursuant to this Agreement and, when the Shares are delivered and paid for pursuant to this Agreement on the Applicable Time, such Shares will have been validly issued and fully paid and non-assessable. The stockholders of the Company have no preemptive rights with respect to the Shares and none of the outstanding shares of capital stock of the Company have been issued in violation of any preemptive rights of any security holder.
(ix) Except as set forth in the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, (A) the Company and its subsidiaries have not incurred any liabilities or obligations, direct or contingent, or entered into any transactions, other than in the ordinary course of business, that are material to the Company and its subsidiaries taken as a whole, (B) there has not been any material change in the capital stock of the Company, or any material adverse change, or, to the Company’s knowledge, any development involving a prospective material adverse change, in the condition (financial or otherwise), business, net worth, property or results of operations of the Company (excluding changes due to investment activities in the ordinary course of business), (C) there has been no dividend or distribution declared or paid in respect of the Company’s capital stock and (D) the Company and its subsidiaries have not incurred any short-term debt or long-term debt that is, in either case, material with respect to the Company and its subsidiaries taken as a whole (excluding debt resulting from a draw down on the Company’s credit facilities).
(x) There is no pending or, to the knowledge of the Company, threatened action, suit or proceeding, legal or governmental, to which the Company or any of its subsidiaries is a party, before or by any court or governmental agency or body, that is required to be described in the Prospectus and is not so described.
(xi) There are no contracts, agreements or understandings of the Company or any of its subsidiaries that are required to be filed as exhibits to the Registration Statement by the Securities Act or by the Securities Act Rules and Regulations that have not been so filed or incorporated by reference therein as permitted by the Securities Act Rules and Regulations.
(xii) This Agreement has been duly authorized, executed and delivered by the Company.
(xiii) The execution, delivery and performance of this Agreement, the issuance and sale of the Shares and the consummation of the transactions contemplated herein and the Prospectus (including the issuance and sale of the Shares and the use of the proceeds from the sale of the Shares as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or result in a breach or violation of any of the terms and provisions of, constitute a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any of its subsidiaries pursuant tosubsidiary is subject, any agreement, indenture, mortgage, lease or other instrument to which the Company or any of its subsidiaries is a party or by which it or any of its properties or assets may be bound nor will such action (ii) result in any violation of the Company’s provisions of the Articles of Incorporation or By-Laws of the Company as currently in effect or any of its subsidiaries’ charter, bylaws or other organizational documents, statute or any order, law, statute, rule, regulation, judgment, order, writ rule or decree regulation of any court or governmental agency or body, domestic or foreign, body having jurisdiction over the Company or any of its subsidiaries subsidiary or any of their respective assetsproperties; and no consent, properties approval, authorization, order, registration or operations. As used herein, a “Repayment Event” means qualification of or with any event such court or condition which gives governmental agency or body is required for the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness consummation by the Company of the transactions contemplated by this Agreement, except the registration under the Securities Act of the Registrable Securities and such consents, approvals, authorizations, registrations or any qualifications as may be required under state securities or blue sky laws in connection with the offering and distribution of its subsidiariesthe Registrable Securities.
Appears in 2 contracts
Sources: Registration Rights Agreement (Terra Industries Inc), Registration Rights Agreement (Anglo American PLC)
Representations and Warranties by the Company. The Company represents and warrants to each of the Sales Manager Underwriters, as of the date hereof and as of each Representation Date hereof, the Applicable Time (as defined hereinhereinafter defined), the Closing Time (as hereinafter defined) on which and each Date of Delivery, if any (as hereinafter defined) (in each case, a certificate is required to be delivered pursuant to Section 7(n) of this Agreement and as of the time of each sale of any Shares or any securities pursuant to this Agreement (the “Applicable TimeRepresentation Date”), and agrees with the Sales Manager, as follows:
(i) The Company meets the requirements for use of Form N-2 S-3 in connection with the issuance of its securities, including the Shares. The Registration Statement was declared effective by the Commission under the Securities 1933 Act, and no stop order suspending the effectiveness of the Registration Statement or any part thereof has been issued under the 1933 Act and no proceedings for that purpose have been instituted or are pending or, to the Securities Act Rules knowledge of the Company, are contemplated by the Commission or by the state securities authority of any jurisdiction, and Regulationsany request on the part of the Commission for additional information has been complied with. At the time respective times the Original Registration Statement and any post-effective amendments thereto became effectiveeffective and at each deemed effective date with respect to the Underwriters pursuant to Rule 430B(f)(2) of the 1933 Act Regulations, the Registration Statement complied and any amendments and supplements thereto complied, comply and will comply in all material respects with the requirements of the Securities 1933 Act and the Securities 1933 Act Rules and Regulations Regulations, and did not, do not include any 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; . Neither the Prospectus compliednor any amendments or supplements thereto, as at the time the Prospectus or any such amendment or supplement was first used, at the Closing Time and at any Date of its dateDelivery, in all material respectsincluded, with the requirements of the Securities Act and the Securities Act Rules and Regulations as of the Applicable Time, did not contain any 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, base prospectus filed as part of the date of Original Registration Statement or any amendment thereto) complied when filed with the Prospectus Supplement, will comply Commission in all material respects with the requirements of the Securities 1933 Act and the Securities 1933 Act Rules Regulations and Regulationsany such preliminary prospectus was, and the ProspectusProspectus delivered or made available to the Underwriters for use in connection with this offering will be at the time of such delivery, as identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T. As of the date of the Prospectus Supplement and the Applicable Time, did neither (x) any Issuer Free Writing Prospectus (as defined below) identified on Schedule C hereto issued at or prior to the Applicable Time, the Statutory Prospectus (as defined below) and the information to be conveyed orally by the Underwriters to purchasers of the Shares at the Applicable Time as set forth in Schedule B hereto, all considered together (collectively, the “General Disclosure Package”), nor (y) any Issuer Free Writing Prospectus not and will not contain identified on Schedule C hereto, when considered together with the General Disclosure Package, included any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the . The representations and warranties in this subsection the preceding three paragraphs shall not apply to statements in or omissions from the Registration Statement or Prospectus any post-effective amendment thereto, any preliminary prospectus, the Prospectus, or any amendments or supplements thereto thereto, or the General Disclosure Package made in reliance upon and in conformity with information relating to the Sales Manager furnished to the Company in writing by the Sales Manager or on behalf of any Underwriter expressly for use in the Registration Statement or Prospectus, it being understood and agreed that (including the only such information furnished by prospectus filed with the Sales Manager consists of the following information in the Prospectus Supplement furnished on behalf the Sales Manager: the last paragraph under the caption “Plan of Distribution.” The Shares have been duly registered under the Securities Act pursuant to the Original Registration Statement. Each of the Registration Statement, any Rule 462(b) Registration Statement and any post-effective amendments thereto has become effective, and no order suspending the effectiveness of the Registration Statement has been issued by the Commission.
(ii) The Registration Statement has become effective; the Commission has not issued, and is not, to the knowledge of the Company, threatening to issue, any stop order under the Securities Act or other order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto, and no proceedings for such purpose have been instituted or are pending orany preliminary prospectus, to the best knowledge of the Company are contemplated or threatened by the Commission.
(iii) The Company has elected to be regulated by the Commission as a business development company under the Investment Company Act of 1940, as amended (the “Investment Company Act”), and has not withdrawn that election, and the Commission has not ordered that such election be withdrawn nor to the best of the Company’s knowledge have proceedings to effectuate such withdrawal been initiated or threatened by the Commission.
(iv) To the Company’s knowledge, PricewaterhouseCoopers LLP, the accounting firm that audited the financial statements of the Company set forth in the Registration Statement and Prospectus, were and are independent registered accounting firms as required by the Securities Act and the Securities Act Rules and Regulations and the rules and regulations of the Public Company Accounting Oversight Board.
(v) The financial statements, together with the related schedules and notes thereto, of the Company set forth in the Registration Statement and the Prospectus fairly present in all material respects the results of operations and financial condition of the Company and its subsidiaries as of the dates indicated and the results of their operations for the respective periods specified, and are prepared in conformity with U.S. generally accepted accounting principles and the selected financial information and data included in the Registration Statement and the Prospectus have been prepared on a basis consistent with that of the books and records of the Company.
(vi) The Company (A) has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland, has full corporate power and authority to conduct its business as described in the Prospectus; (B) has full power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby; and (C) is duly licensed or qualified to do business as a foreign corporation and in good standing in each jurisdiction where the Company is required to be qualified or licensed or in good standing, except where the failure to be so qualified or licensed or to be in good standing would not result in a material adverse effect upon the financial condition, business or operations of the Company and its subsidiaries, taken as a whole (“Material Adverse Effect”).
(vii) The Company is not, or with the giving of notice or lapse of time or both would not be, in default or violation with respect to its charter or bylaws or governing documents. The Company is not, or with the giving of notice or lapse of time or both would not be, in default in the performance or observance of any obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which the Company is a party or by which the Company is bound or to which any of the properties or assets of the Company is subject, or in violation of any statutes, laws, ordinances or governmental rules or regulations or any orders or decrees to which it is subject.
(viii) The Company’s authorized capitalization is as set forth in the Prospectus; the outstanding shares of Common Stock have been duly authorized and validly issued and are fully paid and non-assessable and conform in all material respects to the description thereof in the Prospectus under the heading “Description of Capital Stock;” the Shares have been duly authorized by all requisite corporate action on the part of the Company for the issuance and sale of the Shares to the Sales Manager pursuant to this Agreement and, when the Shares are delivered and paid for pursuant to this Agreement on the Applicable Time, such Shares will have been validly issued and fully paid and non-assessable. The stockholders of the Company have no preemptive rights with respect to the Shares and none of the outstanding shares of capital stock of the Company have been issued in violation of any preemptive rights of any security holder.
(ix) Except as set forth in the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, (A) the Company and its subsidiaries have not incurred or any liabilities amendments or obligations, direct or contingentsupplements thereto, or entered into any transactions, other than in the ordinary course of business, that are material to the Company and its subsidiaries taken as a whole, (B) there has not been any material change in the capital stock of the Company, or any material adverse change, or, to the Company’s knowledge, any development involving a prospective material adverse change, in the condition (financial or otherwise), business, net worth, property or results of operations of the Company (excluding changes due to investment activities in the ordinary course of business), (C) there has been no dividend or distribution declared or paid in respect of the Company’s capital stock and (D) the Company and its subsidiaries have not incurred any short-term debt or long-term debt that is, in either case, material with respect to the Company and its subsidiaries taken as a whole (excluding debt resulting from a draw down on the Company’s credit facilities).
(x) There is no pending or, to the knowledge of the Company, threatened action, suit or proceeding, legal or governmental, to which the Company or any of its subsidiaries is a party, before or by any court or governmental agency or body, that is required to be described in the Prospectus and is not so described.
(xi) There are no contracts, agreements or understandings of the Company or any of its subsidiaries that are required to be filed as exhibits to the Registration Statement by the Securities Act or by the Securities Act Rules and Regulations that have not been so filed or incorporated by reference therein as permitted by the Securities Act Rules and Regulations.
(xii) This Agreement has been duly authorized, executed and delivered by the Company.
(xiii) The execution, delivery and performance of this Agreement, the issuance and sale of the Shares and the consummation of the transactions contemplated herein and the Prospectus (including the issuance and sale of the Shares and the use of the proceeds from the sale of the Shares as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or result in a breach or violation of any of the terms and provisions of, constitute a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any of its subsidiaries pursuant to, any agreement, indenture, mortgage, lease or other instrument to which the Company or any of its subsidiaries is a party or by which it or any of its properties or assets may be bound nor will such action result in any violation of the Company’s or any of its subsidiaries’ charter, bylaws or other organizational documents, or any order, law, statute, rule, regulation, judgment, order, writ or decree of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Company or any of its subsidiaries or any of their respective assets, properties or operationsGeneral Disclosure Package. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its subsidiaries.in this subsection and elsewhere in this Agreement:
Appears in 1 contract
Representations and Warranties by the Company. The Company represents and warrants to the Sales Manager as of the date hereof and as of each Representation Date (as defined herein) on which a certificate is required to be delivered pursuant to Section 7(n) of this Agreement and as of the time of each sale of any Shares or any securities pursuant to this Agreement (the “Applicable Time”), and agrees with the Sales Manager, as follows:
(i) The Company meets the requirements for use of Form N-2 under the Securities Act and the Securities Act Rules and Regulations. At the time the Registration Statement became effective, the Registration Statement complied in all material respects with the requirements of the Securities Act and the Securities Act Rules and Regulations and did not include 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 Prospectus complied, as of its date, in all material respects, with the requirements of the Securities Act and the Securities Act Rules and Regulations as of the Applicable Time, did not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; the Prospectus, as of the date of the Prospectus Supplement, will comply in all material respects with the requirements of the Securities Act and the Securities Act Rules and Regulations, and the Prospectus, as of the date of the Prospectus Supplement and the Applicable Time, did not and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the representations and warranties in this subsection shall not apply to statements in or omissions from the Registration Statement or Prospectus or any amendments or supplements thereto made in reliance upon and in conformity with information relating to the Sales Manager furnished to the Company in writing by the Sales Manager expressly for use in the Registration Statement or Prospectus, it being understood and agreed that the only such information furnished by the Sales Manager consists of the following information in the Prospectus Supplement furnished on behalf the Sales Manager: the last paragraph under the caption “Plan of Distribution.” The Shares have been duly registered under the Securities Act pursuant to the Registration Statement. Each of the Registration Statement, any Rule 462(b) Registration Statement and any post-effective amendments thereto has become effective, and no order suspending the effectiveness of the Registration Statement has been issued by the Commission.
(ii) The Registration Statement has become effective; the Commission has not issued, and is not, to the knowledge of the Company, threatening to issue, any stop order under the Securities Act or other order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto, and no proceedings for such purpose have been instituted or are pending or, to the best knowledge of the Company are contemplated or threatened by the Commission.
(iii) The Company has elected to be regulated by the Commission as a business development company under the Investment Company Act of 1940, as amended (the “Investment Company Act”), and has not withdrawn that election, and the Commission has not ordered that such election be withdrawn nor to the best of the Company’s knowledge have proceedings to effectuate such withdrawal been initiated or threatened by the Commission.
(iv) To the Company’s knowledge, PricewaterhouseCoopers LLP, the accounting firm that audited the financial statements of the Company set forth in the Registration Statement and Prospectus, were and are independent registered accounting firms as required by the Securities Act and the Securities Act Rules and Regulations and the rules and regulations of the Public Company Accounting Oversight Board.
(v) The financial statements, together with the related schedules and notes thereto, of the Company set forth in the Registration Statement and the Prospectus fairly present in all material respects the results of operations and financial condition of the Company and its subsidiaries as of the dates indicated and the results of their operations for the respective periods specified, and are prepared in conformity with U.S. generally accepted accounting principles and the selected financial information and data included in the Registration Statement and the Prospectus have been prepared on a basis consistent with that of the books and records of the Company.
(vi) The Company (A) has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland, has full corporate power and authority to conduct its business as described in the Prospectus; (B) has full power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby; and (C) is duly licensed or qualified to do business as a foreign corporation and in good standing in each jurisdiction where the Company is required to be qualified or licensed or in good standing, except where the failure to be so qualified or licensed or to be in good standing would not result in a material adverse effect upon the financial condition, business or operations of the Company and its subsidiaries, taken as a whole (“Material Adverse Effect”).
(vii) The Company is not, or with the giving of notice or lapse of time or both would not be, in default or violation with respect to its charter or bylaws or governing documents. The Company is not, or with the giving of notice or lapse of time or both would not be, in default in the performance or observance of any obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which the Company is a party or by which the Company is bound or to which any of the properties or assets of the Company is subject, or in violation of any statutes, laws, ordinances or governmental rules or regulations or any orders or decrees to which it is subject.
(viii) The Company’s authorized capitalization is as set forth in the Prospectus; the outstanding shares of Common Stock have been duly authorized and validly issued and are fully paid and non-assessable and conform in all material respects to the description thereof in the Prospectus under the heading “Description of Capital Stock;” the Shares have been duly authorized by all requisite corporate action on the part of the Company for the issuance and sale of the Shares to the Sales Manager pursuant to this Agreement and, when the Shares are delivered and paid for pursuant to this Agreement on the Applicable Time, such Shares will have been validly issued and fully paid and non-assessable. The stockholders of the Company have no preemptive rights with respect to the Shares and none of the outstanding shares of capital stock of the Company have been issued in violation of any preemptive rights of any security holder.
(ix) Except as set forth in the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, (A) the Company and its subsidiaries have not incurred any liabilities or obligations, direct or contingent, or entered into any transactions, other than in the ordinary course of business, that are material to the Company and its subsidiaries taken as a whole, (B) there has not been any material change in the capital stock of the Company, or any material adverse change, or, to the Company’s knowledge, any development involving a prospective material adverse change, in the condition (financial or otherwise), business, net worth, property or results of operations of the Company (excluding changes due to investment activities in the ordinary course of business), (C) there has been no dividend or distribution declared or paid in respect of the Company’s capital stock and (D) the Company and its subsidiaries have not incurred any short-term debt or long-term debt that is, in either case, material with respect to the Company and its subsidiaries taken as a whole (excluding debt resulting from a draw down on the Company’s credit facilities).
(x) There is no pending or, to the knowledge of the Company, threatened action, suit or proceeding, legal or governmental, to which the Company or any of its subsidiaries is a party, before or by any court or governmental agency or body, that is required to be described in the Prospectus and is not so described.
(xi) There are no contracts, agreements or understandings of the Company or any of its subsidiaries that are required to be filed as exhibits to the Registration Statement by the Securities Act or by the Securities Act Rules and Regulations that have not been so filed or incorporated by reference therein as permitted by the Securities Act Rules and Regulations.
(xii) This Agreement has been duly authorized, executed and delivered by the Company.
(xiii) The execution, delivery and performance of this Agreement, the issuance and sale of the Shares and the consummation of the transactions contemplated herein and the Prospectus (including the issuance and sale of the Shares and the use of the proceeds from the sale of the Shares as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or result in a breach or violation of any of the terms and provisions of, constitute a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any of its subsidiaries pursuant to, any agreement, indenture, mortgage, lease or other instrument to which the Company or any of its subsidiaries is a party or by which it or any of its properties or assets may be bound nor will such action result in any violation of the Company’s or any of its subsidiaries’ charter, bylaws or other organizational documents, or any order, law, statute, rule, regulation, judgment, order, writ or decree of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Company or any of its subsidiaries or any of their respective assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its subsidiaries.proceeds
Appears in 1 contract
Sources: Equity Distribution Agreement (Hercules Capital, Inc.)
Representations and Warranties by the Company. The Company represents and warrants to the Sales Manager as of the date hereof and as of each Representation Date (as defined herein) on which a certificate is required to be delivered pursuant to Section 7(n) of this Agreement and as of the time of each sale of any Shares or any securities pursuant to this Agreement (the “Applicable Time”), and agrees with the Sales Manager, as follows:
(i) The Company meets the requirements for use of Form N-2 under the Securities Act and the Securities Act Rules and Regulations. At the time the Registration Statement became effective, the Registration Statement complied in all material respects with the requirements of the Securities Act and the Securities Act Rules and Regulations and did not include 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 Prospectus complied, as of its date, in all material respects, with the requirements of the Securities Act and the Securities Act Rules and Regulations as of the Applicable Time, did not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; the Prospectus, as of the date of the Prospectus Supplement, will comply in all material respects with the requirements of the Securities Act and the Securities Act Rules and Regulations, and the Prospectus, as of the date of the Prospectus Supplement and the Applicable Time, did not and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the representations and warranties in this subsection shall not apply to statements in or omissions from the Registration Statement or Prospectus or any amendments or supplements thereto made in reliance upon and in conformity with information relating to the Sales Manager furnished to the Company in writing by the Sales Manager expressly for use in the Registration Statement or Prospectus, it being understood and agreed that the only such information furnished by the Sales Manager consists of the following information in the Prospectus Supplement furnished on behalf the Sales Manager: the first sentence of the last paragraph under the caption “Plan of Distribution.” The Shares have been duly registered under the Securities Act pursuant to the Registration Statement. Each of the Registration Statement, any Rule 462(b) Registration Statement and any post-effective amendments thereto has become effective, and no order suspending the effectiveness of the Registration Statement has been issued by the Commission.
(ii) The Registration Statement has become effective; the Commission has not issued, and is not, to the knowledge of the Company, threatening to issue, any stop order under the Securities Act or other order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto, and no proceedings for such purpose have been instituted or are pending or, to the best knowledge of the Company are contemplated or threatened by the Commission.
(iii) The Company has elected to be regulated by the Commission as a business development company under the Investment Company Act of 1940, as amended (the “Investment Company Act”), and has not withdrawn that election, and the Commission has not ordered that such election be withdrawn nor to the best of the Company’s knowledge have proceedings to effectuate such withdrawal been initiated or threatened by the Commission.
(iv) To the Company’s knowledge, PricewaterhouseCoopers LLP, the accounting firm that audited the financial statements of the Company set forth in the Registration Statement and Prospectus, were and are independent registered accounting firms as required by the Securities Act and the Securities Act Rules and Regulations and the rules and regulations of the Public Company Accounting Oversight Board.
(v) The financial statements, together with the related schedules and notes thereto, of the Company set forth in the Registration Statement and the Prospectus fairly present in all material respects the results of operations and financial condition of the Company and its subsidiaries as of the dates indicated and the results of their operations for the respective periods specified, and are prepared in conformity with U.S. generally accepted accounting principles and the selected financial information and data included in the Registration Statement and the Prospectus have been prepared on a basis consistent with that of the books and records of the Company.
(vi) The Company (A) has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland, has full corporate power and authority to conduct its business as described in the Prospectus; (B) has full power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby; and (C) is duly licensed or qualified to do business as a foreign corporation and in good standing in each jurisdiction where the Company is required to be qualified or licensed or in good standing, except where the failure to be so qualified or licensed or to be in good standing would not result in a material adverse effect upon the financial condition, business or operations of the Company and its subsidiaries, taken as a whole (“Material Adverse Effect”).
(vii) The Company is not, or with the giving of notice or lapse of time or both would not be, in default or violation with respect to its charter or bylaws or governing documents. The Company is not, or with the giving of notice or lapse of time or both would not be, in default in the performance or observance of any obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which the Company is a party or by which the Company is bound or to which any of the properties or assets of the Company is subject, or in violation of any statutes, laws, ordinances or governmental rules or regulations or any orders or decrees to which it is subject.
(viii) The Company’s authorized capitalization is as set forth in the Prospectus; the outstanding shares of Common Stock have been duly authorized and validly issued and are fully paid and non-assessable and conform in all material respects to the description thereof in the Prospectus under the heading “Description of Capital Stock;” the Shares have been duly authorized by all requisite corporate action on the part of the Company for the issuance and sale of the Shares to the Sales Manager pursuant to this Agreement and, when the Shares are delivered and paid for pursuant to this Agreement on the Applicable Time, such Shares will have been validly issued and fully paid and non-assessable. The stockholders of the Company have no preemptive rights with respect to the Shares and none of the outstanding shares of capital stock of the Company have been issued in violation of any preemptive rights of any security holder.
(ix) Except as set forth in the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, (A) the Company and its subsidiaries have not incurred any liabilities or obligations, direct or contingent, or entered into any transactions, other than in the ordinary course of business, that are material to the Company and its subsidiaries taken as a whole, (B) there has not been any material change in the capital stock of the Company, or any material adverse change, or, to the Company’s knowledge, any development involving a prospective material adverse change, in the condition (financial or otherwise), business, net worth, property or results of operations of the Company (excluding changes due to investment activities in the ordinary course of business), (C) there has been no dividend or distribution declared or paid in respect of the Company’s capital stock and (D) the Company and its subsidiaries have not incurred any short-term debt or long-term debt that is, in either case, material with respect to the Company and its subsidiaries taken as a whole (excluding debt resulting from a draw down on the Company’s credit facilities).
(x) There is no pending or, to the knowledge of the Company, threatened action, suit or proceeding, legal or governmental, to which the Company or any of its subsidiaries is a party, before or by any court or governmental agency or body, that is required to be described in the Prospectus and is not so described.
(xi) There are no contracts, agreements or understandings of the Company or any of its subsidiaries that are required to be filed as exhibits to the Registration Statement by the Securities Act or by the Securities Act Rules and Regulations that have not been so filed or incorporated by reference therein as permitted by the Securities Act Rules and Regulations.
(xii) This Agreement has been duly authorized, executed and delivered by the Company.
(xiii) The execution, delivery and performance of this Agreement, the issuance and sale of the Shares and the consummation of the transactions contemplated herein and the Prospectus (including the issuance and sale of the Shares and the use of the proceeds from the sale of the Shares as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or result in a breach or violation of any of the terms and provisions of, constitute a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any of its subsidiaries pursuant to, any agreement, indenture, mortgage, lease or other instrument to which the Company or any of its subsidiaries is a party or by which it or any of its properties or assets may be bound nor will such action result in any violation of the Company’s or any of its subsidiaries’ charter, bylaws or other organizational documents, or any order, law, statute, rule, regulation, judgment, order, writ or decree of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Company or any of its subsidiaries or any of their respective assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its subsidiaries.
Appears in 1 contract
Sources: Equity Distribution Agreement (Hercules Capital, Inc.)
Representations and Warranties by the Company. The Company represents and warrants to each Underwriter named in the Sales Manager applicable Underwriting Agreement, as of the date hereof and as of each Representation Date Pricing Effective Time (as defined hereinbelow) on which a certificate is required to be delivered pursuant to Section 7(n) of this Agreement and as of the time of each sale of any Shares or any securities pursuant Closing Time (as defined below) with respect to this Agreement (the “Applicable Time”), and agrees with the Sales Manager, Designated Securities as follows:
(i) The each document filed by the Company meets pursuant to the requirements for use of Form N-2 under the Securities 1934 Act and the Securities Act Rules and Regulations. At the time which is incorporated by reference in the Registration Statement became effectiveStatement, the Registration Statement Prospectus or the Pricing Disclosure Material (as defined below) complied when so filed in all material respects with the requirements of the Securities 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 in all material respects when so filed with the 1934 Act and the rules and regulations thereunder;
(ii) 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;
(iii) each Preliminary Prospectus, if any, relating to the Designated Securities filed pursuant to Rule 424 under the 1933 Act Rules complied when so filed in all material respects with the 1933 Act and Regulations and did the 1933 Act Regulations;
(iv) (A) at the Effective Time of the Registration Statement it will not include any contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (B) at the Prospectus compliedPricing Effective Time, the Pricing Disclosure Material (as of its date, in all material respects, with the requirements of the Securities Act and the Securities Act Rules and Regulations as of the Applicable Timedefined below), did not contain any 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; and (C) the Prospectus, Prospectus as of the date of the Prospectus Supplement, Pricing Supplement will comply in all material respects with the requirements of the Securities Act and the Securities Act Rules and Regulationsnot, and the ProspectusProspectus (as amended or supplemented, other than as to supplements relating only to securities other than the Designated Securities) as of the date of the Prospectus Supplement and the Applicable TimeClosing Time will not, did not and will not contain any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, except that the these representations and warranties in this subsection shall do not apply to statements in or omissions from in the Registration Statement or Prospectus or Statement, any Preliminary Prospectus, the Prospectus, any amendments or supplements thereto made in reliance upon and in conformity with information relating to the Sales Manager foregoing, or in the Pricing Disclosure Material, based upon information furnished to the Company in writing by the Sales Manager any Underwriter expressly for use in therein;
(v) the Registration Statement or Prospectus, it being understood and agreed that constitutes an “automatic shelf registration statement” (as defined in Rule 405 under the only such information furnished by the Sales Manager consists ▇▇▇▇ ▇▇▇) filed within three years of the following information in date hereof; no notice of objection of the Prospectus Supplement furnished on behalf the Sales Manager: the last paragraph under the caption “Plan of Distribution.” The Shares have been duly registered under the Securities Act pursuant Commission with respect to the Registration Statement. Each of the Registration Statement, any Rule 462(b) Registration Statement and any post-effective amendments thereto has become effective, and no order suspending the effectiveness use of the Registration Statement pursuant to Rule 401(g)(2) under the 1933 Act has been issued received by the Commission.
(ii) The Registration Statement has become effectiveCompany; and the Commission has not issued, Company is a “well-known seasoned issuer” and is not, not an ineligible issuer in each case as defined in Rule 405 at the “determination dates” relevant to the knowledge offering and sale of the Company, threatening to issue, any stop order Designated Securities under the Securities Act or other order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto, and no proceedings for (as described in such purpose have been instituted or are pending or, to the best knowledge of the Company are contemplated or threatened by the Commission.
(iii) The Company has elected to be regulated by the Commission as a business development company under the Investment Company Act of 1940, as amended (the “Investment Company Act”definition), and has not withdrawn that election, and the Commission has not ordered that such election be withdrawn nor to the best of the Company’s knowledge have proceedings to effectuate such withdrawal been initiated or threatened by the Commission.
(iv) To the Company’s knowledge, PricewaterhouseCoopers LLP, the accounting firm that audited the financial statements of the Company set forth in the Registration Statement and Prospectus, were and are independent registered accounting firms as required by the Securities Act and the Securities Act Rules and Regulations and the rules and regulations of the Public Company Accounting Oversight Board.
(v) The financial statements, together with the related schedules and notes thereto, of the Company set forth in the Registration Statement and the Prospectus fairly present in all material respects the results of operations and financial condition of the Company and its subsidiaries as of the dates indicated and the results of their operations for the respective periods specified, and are prepared in conformity with U.S. generally accepted accounting principles and the selected financial information and data included in the Registration Statement and the Prospectus have been prepared on a basis consistent with that of the books and records of the Company.;
(vi) The the Company (A) has been duly incorporated and is validly existing as not used any free writing prospectus other than a corporation Permitted Free Writing Prospectus or used a Permitted Free Writing Prospectus except in good standing compliance with Rule 433 under the laws of 1933 Act and otherwise in compliance with the State of Maryland, has full corporate power and authority to conduct its business as described in the Prospectus1933 Act; (B) has full power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby; and (C) is duly licensed or qualified to do business as a foreign corporation and in good standing in each jurisdiction where the Company is required to be qualified or licensed or in good standing, except where the failure to be so qualified or licensed or to be in good standing would not result in a material adverse effect upon the financial condition, business or operations of the Company and its subsidiaries, taken as a whole (“Material Adverse Effect”).and
(vii) The the Company maintains a system of internal control over financial reporting (as such term is not, or defined in Rule 13a-15(f) under the ▇▇▇▇ ▇▇▇) that complies with the giving of notice or lapse of time or both would not be, in default or violation with respect to its charter or bylaws or governing documents. The Company is not, or with the giving of notice or lapse of time or both would not be, in default in the performance or observance of any obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which the Company is a party or by which the Company is bound or to which any requirements of the properties or assets of the Company is subject, or in violation of any statutes, laws, ordinances or governmental rules or regulations or any orders or decrees to which it is subject.
(viii) The Company’s authorized capitalization is as set forth in the Prospectus; the outstanding shares of Common Stock have 1934 Act and has been duly authorized and validly issued and are fully paid and non-assessable and conform in all material respects to the description thereof in the Prospectus under the heading “Description of Capital Stock;” the Shares have been duly authorized designed by all requisite corporate action on the part of the Company for the issuance and sale of the Shares to the Sales Manager pursuant to this Agreement and, when the Shares are delivered and paid for pursuant to this Agreement on the Applicable Time, such Shares will have been validly issued and fully paid and non-assessable. The stockholders of the Company have no preemptive rights with respect to the Shares and none of the outstanding shares of capital stock of the Company have been issued in violation of any preemptive rights of any security holder.
(ix) Except as set forth in the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, (A) the Company and its subsidiaries have not incurred any liabilities or obligations, direct or contingent, or entered into any transactions, other than in the ordinary course of business, that are material to the Company and its subsidiaries taken as a whole, (B) there has not been any material change in the capital stock of the Company, or any material adverse change, or, to the Company’s knowledgeprincipal executive officer and principal financial officer, any development involving a prospective material adverse change, in the condition (financial or otherwise), business, net worth, property or results of operations of the Company (excluding changes due to investment activities in the ordinary course of business), (C) there has been no dividend or distribution declared or paid in respect of the Company’s capital stock and (D) the Company and its subsidiaries have not incurred any short-term debt or long-term debt that is, in either case, material with respect to the Company and its subsidiaries taken as a whole (excluding debt resulting from a draw down on the Company’s credit facilities).
(x) There is no pending orunder their supervision, to provide reasonable assurance regarding the knowledge reliability of the Company, threatened action, suit or proceeding, legal or governmental, to which the Company or any of its subsidiaries is a party, before or by any court or governmental agency or body, that is required to be described in the Prospectus and is not so described.
(xi) There are no contracts, agreements or understandings of the Company or any of its subsidiaries that are required to be filed as exhibits to the Registration Statement by the Securities Act or by the Securities Act Rules and Regulations that have not been so filed or incorporated by reference therein as permitted by the Securities Act Rules and Regulations.
(xii) This Agreement has been duly authorized, executed and delivered by the Company.
(xiii) The execution, delivery and performance of this Agreement, the issuance and sale of the Shares financial reporting and the consummation preparation of the transactions contemplated herein and the Prospectus (including the issuance and sale of the Shares and the use of the proceeds from the sale of the Shares as described financial statements for external purposes in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company accordance with its obligations hereunder do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or result in a breach or violation of any of the terms and provisions of, constitute a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any of its subsidiaries pursuant to, any agreement, indenture, mortgage, lease or other instrument to which the Company or any of its subsidiaries is a party or by which it or any of its properties or assets may be bound nor will such action result in any violation of the Company’s or any of its subsidiaries’ charter, bylaws or other organizational documents, or any order, law, statute, rule, regulation, judgment, order, writ or decree of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Company or any of its subsidiaries or any of their respective assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its subsidiariesgenerally accepted accounting principles.
Appears in 1 contract
Representations and Warranties by the Company. The Company hereby represents and warrants to the Sales Manager KeyBanc as of the date hereof and as of each Representation Date (as defined hereinbelow) on which a certificate is required to be delivered pursuant to Section 7(n7(o) of this Agreement Agreement, as of each Applicable Time and as of the time of each sale of any Shares or any securities pursuant to this Agreement Settlement Date (the “Applicable Time”as defined below), and agrees with the Sales ManagerKeyBanc, as follows:
(i1) The Company meets the requirements for use of Form N-2 S-3 under the Securities Act. The Registration Statement and any post-effective amendments thereto have become effective under the Securities Act. No stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Company, are contemplated by the Commission, and any request on the part of the Commission for additional information has been complied with.
(2) At the respective times the Registration Statement and any post-effective amendments thereto became or become effective, at each deemed effective date of the Registration Statement with respect to KeyBanc pursuant to Rule 430B(f)(2) of the Securities Act Rules and Regulations. At the time the Registration Statement became effectiveat each Settlement Date, the Registration Statement complied and will comply in all material respects with the requirements of the Securities Act and the Securities Act Rules and Regulations and did not include any 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; .
(3) The Prospectus and any amendments or supplements thereto, at the time the Prospectus compliedor any such amendment or supplement was issued and at each Settlement Date, as of its date, complied and will comply in all material respects, respects with the requirements of the Securities Act and the Securities Act Rules and Regulations as of the Applicable Time, did not contain any and will not 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; .
(4) Each Issuer Free Writing Prospectus relating to the Securities, as of its issue date and as of each Applicable Time and Settlement Date, 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, or included, includes or, when considered together with the Registration Statement and the Prospectus and all amendments and supplement thereto, and all other Issuer Free Writing Prospectuses and all amendments and supplements thereto, 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 light of the circumstances, prevailing at such time, not misleading.
(5) The representations and warranties set forth in the preceding paragraphs 2, 3 and 4 shall not apply to statements in or omissions from the Registration Statement or the Prospectus, as of amended or supplemented, or any Issuer Free Writing Prospectus relating to the date of Securities, made in reliance upon and in conformity with information furnished to the Prospectus SupplementCompany in writing by KeyBanc expressly for use therein.
(6) The documents incorporated or deemed to be incorporated by reference in the Registration Statement and the Prospectus, when they became effective or at the time they were or hereafter are filed with the Commission, complied and will comply in all material respects with the requirements of the Securities Act and Exchange Act, as applicable, and, when read together with the Securities Act Rules and Regulations, and other information in the Prospectus, as of (a) at the date of time the Prospectus Supplement Registration Statement became effective, (b) at each Applicable Time and the Applicable Time(c) at each Settlement Date, did not and will not contain any an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided.
(7) At the time of filing, however, that the representations and warranties in this subsection shall not apply to statements in or omissions from the Registration Statement and at the time of the most recent amendment thereto for purposes of complying with Section 10(a)(3) of the Securities Act (whether by post-effective amendment, incorporated report filed pursuant to Section 13 or Prospectus 15(d) of the Exchange Act or any amendments or supplements thereto made in reliance upon and in conformity with information relating to Form of Prospectus), at the Sales Manager furnished to earliest time thereafter that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) of the Securities Act) of the Securities and at the date hereof, the Company was not and is not an “ineligible issuer,” as defined in writing by Rule 405 of the Sales Manager expressly for use Securities Act.
(8) The descriptions in the Registration Statement and the Prospectus of the contracts, leases and other legal documents therein described present fairly the information required to be shown, and there are no contracts, leases, or other documents of a character required to be described in the Registration Statement or Prospectus, it being understood and agreed that the only such information furnished by the Sales Manager consists of the following information in the Prospectus Supplement furnished on behalf the Sales Manager: the last paragraph under the caption “Plan of Distribution.” The Shares have been duly registered under the Securities Act pursuant or to be filed as exhibits to the Registration Statement. Each of the Registration Statement, any Rule 462(b) Registration Statement and any post-effective amendments thereto has become effective, and which are not described or filed as required; there are no order suspending the effectiveness of the Registration Statement has been issued by the Commission.
(ii) The Registration Statement has become effective; the Commission has not issued, and is notlegal or governmental proceedings pending or, to the knowledge of the Company, threatening threatened, to issue, which the Company or any stop order under the Securities Act or other order suspending the effectiveness of Subsidiary (as defined below) is subject that are required to be described in the Registration Statement or any post-effective amendment thereto, the Prospectus and are not so described; there are no proceedings for such purpose have been instituted statutes or are pending or, regulations applicable to the best knowledge Company or any Subsidiary or certificates, permits or other authorizations from governmental regulatory officials or bodies required to be obtained or maintained by the Company or any Subsidiary of a character required to be disclosed that are not so described therein as required; all agreements between the Company or any Subsidiary and third parties expressly referenced in the Registration Statement and the Prospectus are legal, valid and binding obligations of the Company or the Subsidiary, enforceable in accordance with their respective terms, except to the extent enforceability may be limited by bankruptcy, insolvency, reorganization or other laws of general applicability relating to or affecting creditors’ rights and by general equity principles; there are contemplated no business relationships or threatened by related-party transactions involving the CommissionCompany or any Subsidiary required to be described in the Registration Statement and the Prospectus which have not been so described as required.
(iii9) The Deloitte & Touche LLP, who audited the financial statements and supporting schedules of the Company has elected and its Subsidiaries for its fiscal years ended December 31, 2018 and 2017, which are included or incorporated by reference in the Registration Statement and the Prospectus, is an independent registered public accounting firm with respect to be regulated the Company as required by the Commission as a business development company under Securities Act, the Investment Exchange Act and the Public Company Act of 1940, as amended Accounting Oversight Board (the “Investment Company ActPCAOB”). KPMG LLP, who audited the financial statements and has not withdrawn that electionsupporting schedules of the Company and its Subsidiaries for its fiscal year ended December 31, 2016, which are included or incorporated by reference in the Registration Statement and the Commission has not ordered that such election be withdrawn nor Prospectus, is an independent registered public accounting firm with respect to the best of the Company’s knowledge have proceedings to effectuate such withdrawal been initiated or threatened Company as required by the CommissionSecurities Act, the Exchange Act and the PCAOB.
(iv10) To the Company’s knowledge, PricewaterhouseCoopers LLP, the accounting firm that audited the The financial statements of the Company set forth and its Subsidiaries, (collectively, the “Company Financial Statements”), included or incorporated by reference in the Registration Statement and the Prospectus, were and are independent registered accounting firms as any financial statements required by Rule 3-14 of Regulation S-X (the “Acquisition Financial Statements”), which are incorporated by reference in the Registration Statement and the Prospectus, present fairly the financial position of the Company and its consolidated Subsidiaries at the dates indicated, or, if applicable, with respect to the Acquisition Financial Statements, the respective property or tenant; and all such financial statements have been prepared in conformity with United States generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods involved and comply with all applicable accounting requirements under the Securities Act and the Securities Act Rules Exchange Act, except as disclosed therein, and Regulations that unaudited financial statements may not contain all footnotes required by GAAP and subject, in the rules and regulations case of the Public Company Accounting Oversight Board.
(v) The unaudited financial statements, together to normal year-end audit adjustments. The supporting schedules, if any, included or incorporated by reference in the Registration Statement and the Prospectus present fairly, in accordance with GAAP, the information required to be stated therein. There are no financial statements or schedules required to be included or incorporated by reference in the Registration Statement or the Prospectus under the Securities Act, which are not so included or incorporated. If applicable, the unaudited pro forma financial information (including the related notes) included or incorporated by reference in the Registration Statement or the Prospectus complies as to form in all material respects with the related schedules applicable accounting requirements of the Securities Act, and notes thereto, management of the Company set forth believes that the assumptions underlying the pro forma adjustments are reasonable. If applicable, such pro forma adjustments have been properly applied to the historical amounts in the compilation of the information and such information fairly presents with respect to the Company and its consolidated Subsidiaries, the financial position, results of operations and other information purported to be shown therein at the respective dates and for the respective periods specified. No pro forma financial information is required to be included or incorporated by reference in the Registration Statement or the Prospectus which is not so included or incorporated. Any non-GAAP financial measures, as defined under Regulation G of the Securities Act, included or incorporated by reference in the Registration Statement and the Prospectus are permitted for use in documents filed with the Commission and comply with Regulation G under the Exchange Act and Item 10 of Regulation S-K of the Securities Act, to the extent applicable. The ratio of earnings to fixed charges contained in the Registration Statement and the Prospectus has been calculated in accordance with Item 503(d) of Regulation S-K. The interactive data in eXtensible Business Reporting Language incorporated by reference in the Registration Statement and the Prospectus fairly present presents the information called for in all material respects and has been prepared in accordance with the results Commission’s rules and guidelines applicable thereto.
(11) Since the respective dates as of operations and which information is given in the Registration Statement or the Prospectus, except as otherwise stated therein, (A) there has been no material adverse change, nor any development or event involving a prospective material adverse change, in the condition, financial condition or otherwise, or in the earnings, investment portfolio, business affairs or business prospects of the Company and its subsidiaries the Subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business (a “Material Adverse Effect”), (B) there have been no transactions entered into by any of the dates indicated Company or the Subsidiaries, which are material with respect to the Company and the results of their operations for the respective periods specifiedSubsidiaries, considered as one enterprise, and are prepared in conformity with U.S. generally accepted accounting principles and the selected financial information and data included (C) except as disclosed in the Registration Statement and Company’s press releases, there has been no dividend or distribution of any kind declared, paid or made by the Prospectus have been prepared Company on a basis consistent with that any class of the books and records its shares of the Companybeneficial interest.
(vi12) The Company (A) has been duly incorporated organized and is validly an existing as a corporation statutory real estate investment trust in good standing under the laws of the State of Maryland, has full corporate with power and authority (trust or other) to own and operate its properties and conduct its business as described in the Registration Statement and the Prospectus; (B) has full power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby; and (C) is duly licensed or qualified to do business as a foreign corporation and in good standing in each jurisdiction where the Company is required to be qualified or licensed or in good standing, except . Except where the failure to be so qualified or licensed qualify or to be in good standing would not result in a material adverse effect Material Adverse Effect, the Company is duly qualified to do business as a foreign entity in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification.
(13) Exhibit 21 of the Company’s most recent Annual Report on Form 10-K, attached hereto as Exhibit D (which may be modified from time to time by the Company upon notice to KeyBanc in writing), is a true, correct and complete list of all of the financial condition, business or operations subsidiaries of the Company controlled directly or indirectly by the Company (each, a “Subsidiary” and collectively, the “Subsidiaries”), including the jurisdiction of incorporation or organization of each such Subsidiary and each Subsidiary that is a “significant subsidiary” as defined by Rule 1-02 of Regulation S-X. For the avoidance of doubt, the term “Subsidiary” as used in this Agreement and the Exhibits hereto includes, without limitation, LCIF. The Company hereby represents and warrants that no “significant subsidiary” as defined by Rule 1-02 of Regulation S-X has been formed by the Company since the date of Exhibit D.
(14) Each Subsidiary has been duly incorporated or formed, as the case may be, and each is existing and in good standing under the laws of its subsidiariesrespective jurisdiction of incorporation or formation, taken with power and authority (corporate, partnership, trust or other) to own or lease its properties and conduct its business as described in the Registration Statement and the Prospectus. Except where the failure to so qualify or to be in good standing would not result in a whole (“Material Adverse Effect”).
(vii) The Company , each Subsidiary is not, duly qualified to do business as a foreign entity in good standing in all other jurisdictions in which its ownership or with lease of property or the giving conduct of notice or lapse of time or both would not be, in default or violation with respect to its charter or bylaws or governing documentsbusiness requires such qualification. The Company is not, or with the giving of notice or lapse of time or both would not be, in default in the performance or observance of any obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which the Company is a party or by which the Company is bound or to which any All of the properties or assets issued and outstanding equity interests of the Company is subject, or in violation of any statutes, laws, ordinances or governmental rules or regulations or any orders or decrees to which it is subject.
(viii) The Company’s authorized capitalization is as set forth in the Prospectus; the outstanding shares of Common Stock each Subsidiary have been duly authorized and validly issued and are fully paid and non-assessable assessable; and conform the equity interests of each Subsidiary owned by the Company or another Subsidiary, directly or through subsidiaries, are owned free from security interests, liens, claims, encumbrances and defects, except (i) as disclosed in all material respects the Registration Statement and the Prospectus or (ii) where such security interests, liens, claims, encumbrances and defects would not have a Material Adverse Effect. Immediately prior to the description thereof in the Prospectus under the heading “Description of Capital Stock;” the Shares have been duly authorized by all requisite corporate action on the part consummation of the Company for transactions contemplated hereby and the issuance and application of the Net Proceeds from the sale of the Shares to Securities, the Sales Manager pursuant to this Agreement and, when Company owns the Shares are delivered sole general partnership interest and paid for pursuant to this Agreement on the Applicable Time, such Shares will have been validly issued and fully paid and non-assessable. The stockholders a majority of the Company have no preemptive rights with respect to the Shares and none of the outstanding shares of capital stock of the Company have been issued limited partnership interests in violation of any preemptive rights of any security holderLCIF.
(ix15) Except The Company’s authorized and issued capitalization is as set forth in the Prospectusdocuments incorporated by reference in the Registration Statement and the Prospectus and has not changed, except for (i) subsequent issuances, if any, pursuant to this Agreement or the respective dates as of which information is given Alternative Distribution Agreement or pursuant to reservations, agreements, benefit plans or other plans and arrangements referred to, or incorporated by reference, in the Registration Statement and the Prospectus, (Aii) the Company and its subsidiaries have not incurred any liabilities or obligations, direct or contingent, or entered into any transactions, other than in the ordinary course purchases of business, that are material to the Company and its subsidiaries taken as a whole, (B) there has not been any material change in the capital stock of the Company, or any material adverse change, or, securities pursuant to the Company’s knowledgeannounced stock repurchase program referred to, any development involving a prospective material adverse changeor incorporated by reference, in the condition (financial or otherwise), business, net worth, property or results of operations of the Company (excluding changes due to investment activities in the ordinary course of business), (C) there has been no dividend or distribution declared or paid in respect of the Company’s capital stock Registration Statement and (D) the Company and its subsidiaries have not incurred any short-term debt or long-term debt that is, in either case, material with respect to the Company and its subsidiaries taken as a whole (excluding debt resulting from a draw down on the Company’s credit facilities).
(x) There is no pending or, to the knowledge of the Company, threatened action, suit or proceeding, legal or governmental, to which the Company or any of its subsidiaries is a party, before or by any court or governmental agency or body, that is required to be described in the Prospectus and is not so described.
(xiiii) There such other changes as are no contractsreferred to, agreements or understandings of the Company or any of its subsidiaries that are required to be filed as exhibits to incorporated by reference, in the Registration Statement by the Securities Act or by the Securities Act Rules and Regulations that have not been so filed or incorporated by reference therein as permitted by the Securities Act Rules Prospectus; this Agreement and Regulations.
(xii) This Agreement has been duly authorized, executed and delivered by the Company.
(xiii) The execution, delivery and performance of this Agreement, the issuance and sale of the Shares and the consummation Securities hereunder has been duly authorized by all appropriate action of the transactions contemplated herein and the Prospectus (including the issuance and sale Company, all outstanding shares of the Shares and the use of the proceeds from the sale of the Shares as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or result in a breach or violation of any of the terms and provisions of, constitute a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any properties or assets beneficial interest of the Company or any are, and, when the Securities have been delivered and paid for in accordance with this Agreement on each Settlement Date, such Securities will be, validly issued, fully paid and non-assessable and will conform to the description thereof contained the Registration Statement and the Prospectus; the issued and outstanding units of its subsidiaries pursuant to, any agreement, indenture, mortgage, lease or other instrument to which limited partnership interest in LCIF (the “Units”) have been duly authorized by LCIF and have been validly issued in accordance with the Partnership Agreement of LCIF; all of the issued and outstanding shares of beneficial interest of the Company or any of its subsidiaries is a party or by which it or any of its properties or assets may be bound nor will such action result in any violation of the Company’s or any of its subsidiaries’ charterand outstanding Units have been offered, bylaws or other organizational documents, or any order, law, statute, rule, regulation, judgment, order, writ or decree of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Company or any of its subsidiaries or any of their respective assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness sold and issued by the Company or any of its subsidiaries.LCIF in compliance with all applicable l
Appears in 1 contract
Sources: Equity Distribution Agreement (Lexington Realty Trust)
Representations and Warranties by the Company. The Company represents and warrants to the Sales Manager each Underwriter as of the date hereof and as of each Representation Date the Closing Time referred to in Section 2(c) hereof (as defined herein) on which a certificate is required to be delivered pursuant to Section 7(n) of this Agreement and as of the time of each sale of any Shares or any securities pursuant to this Agreement (the “Applicable Time”unless otherwise specified), and agrees with the Sales Managereach Underwriter, as follows:
(i) The Company meets Registration Statement has become effective, no stop order suspending the requirements for use effectiveness of Form N-2 under the Securities Act and the Securities Act Rules and Regulations. At the time the Registration Statement is in effect and no proceedings for such purpose are pending before or threatened by the Commission. The Company is a well-known seasoned issuer (as defined in Rule 405 under the 1933 Act), eligible to use the Registration Statement as an automatic shelf registration statement and the Company has not received notice that the Commission objects to the use of the Registration Statement as an automatic shelf registration statement.
(ii) (A) The Registration Statement, when it became effective, the Registration Statement complied in all material respects with the requirements of the Securities Act and the Securities Act Rules and Regulations and did not include contain, and as amended or supplemented, if applicable, will not contain 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; , (B) the Registration Statement as of the date hereof does not contain 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, (C) the Registration Statement and the Prospectus compliedcomply, and as of its dateamended or supplemented, if applicable, will comply in all material respects, respects with the requirements of the Securities 1933 Act and the Securities Act Rules applicable rules and Regulations as regulations of the Applicable Commission thereunder, (D) the Time of Sale Prospectus does not, and at the time of each sale of the Notes in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Time, did not the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; the Prospectus, as of the date of the Prospectus Supplement, will comply in all material respects with the requirements of the Securities Act and the Securities Act Rules and Regulations, and the Prospectus, as of the date of the Prospectus Supplement and the Applicable Time, did not and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the representations and warranties in this subsection shall not apply to statements in or omissions from the Registration Statement or Prospectus or any amendments or supplements thereto made in reliance upon and in conformity with information relating to the Sales Manager furnished to the Company in writing by the Sales Manager expressly for use in the Registration Statement or Prospectus, it being understood and agreed that the only such information furnished by the Sales Manager consists of the following information in the Prospectus Supplement furnished on behalf the Sales Manager: the last paragraph under the caption “Plan of Distribution.” The Shares have been duly registered under the Securities Act pursuant to the Registration Statement. Each of the Registration Statement, any Rule 462(b) Registration Statement and any post-effective amendments thereto has become effective, and no order suspending the effectiveness of the Registration Statement has been issued by the Commission.
(ii) The Registration Statement has become effective; the Commission has not issued, and is not, to the knowledge of the Company, threatening to issue, any stop order under the Securities Act or other order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto, and no proceedings for such purpose have been instituted or are pending or, to the best knowledge of the Company are contemplated or threatened by the Commission.
(iii) The Company has elected to be regulated by the Commission as a business development company under the Investment Company Act of 1940, as amended (the “Investment Company Act”), and has not withdrawn that election, and the Commission has not ordered that such election be withdrawn nor to the best of the Company’s knowledge have proceedings to effectuate such withdrawal been initiated or threatened by the Commission.
(iv) To the Company’s knowledge, PricewaterhouseCoopers LLP, the accounting firm that audited the financial statements of the Company set forth in the Registration Statement and Prospectus, were and are independent registered accounting firms as required by the Securities Act and the Securities Act Rules and Regulations and the rules and regulations of the Public Company Accounting Oversight Board.
(v) The financial statements, together with the related schedules and notes thereto, of the Company set forth in the Registration Statement and the Prospectus fairly present in all material respects the results of operations and financial condition of the Company and its subsidiaries as of the dates indicated and the results of their operations for the respective periods specified, and are prepared in conformity with U.S. generally accepted accounting principles and the selected financial information and data included in the Registration Statement and the Prospectus have been prepared on a basis consistent with that of the books and records of the Company.
(vi) The Company (A) has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland, has full corporate power and authority to conduct its business as described in the Prospectus; (B) has full power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby; and (C) is duly licensed or qualified to do business as a foreign corporation and in good standing in each jurisdiction where the Company is required to be qualified or licensed or in good standing, except where the failure to be so qualified or licensed or to be in good standing would not result in a material adverse effect upon the financial condition, business or operations of the Company and its subsidiaries, taken as a whole (“Material Adverse Effect”).
(vii) The Company is not, or with the giving of notice or lapse of time or both would not be, in default or violation with respect to its charter or bylaws or governing documents. The Company is not, or with the giving of notice or lapse of time or both would not be, in default in the performance or observance of any obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which the Company is a party or by which the Company is bound or to which any of the properties or assets of the Company is subject, or in violation of any statutes, laws, ordinances or governmental rules or regulations or any orders or decrees to which it is subject.
(viii) The Company’s authorized capitalization is as set forth in the Prospectus; the outstanding shares of Common Stock have been duly authorized and validly issued and are fully paid and non-assessable and conform in all material respects to the description thereof in the Prospectus under the heading “Description of Capital Stock;” the Shares have been duly authorized by all requisite corporate action on the part of the Company for the issuance and sale of the Shares to the Sales Manager pursuant to this Agreement and, when the Shares are delivered and paid for pursuant to this Agreement on the Applicable Time, such Shares will have been validly issued and fully paid and non-assessable. The stockholders of the Company have no preemptive rights with respect to the Shares and none of the outstanding shares of capital stock of the Company have been issued in violation of any preemptive rights of any security holder.
(ix) Except as set forth in the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, (A) the Company and its subsidiaries have not incurred any liabilities or obligations, direct or contingent, or entered into any transactions, other than in the ordinary course of business, that are material to the Company and its subsidiaries taken as a whole, (B) there has not been any material change in the capital stock of the Company, or any material adverse change, or, to the Company’s knowledge, any development involving a prospective material adverse change, in the condition (financial or otherwise), business, net worth, property or results of operations of the Company (excluding changes due to investment activities in the ordinary course of business), (C) there has been no dividend or distribution declared or paid in respect of the Company’s capital stock and (D) the Company and its subsidiaries have not incurred any short-term debt or long-term debt that is, in either case, material with respect to the Company and its subsidiaries taken as a whole (excluding debt resulting from a draw down on the Company’s credit facilities).
(x) There is no pending or, to the knowledge of the Company, threatened action, suit or proceeding, legal or governmental, to which the Company or any of its subsidiaries is a party, before or by any court or governmental agency or body, that is required to be described in the Prospectus and is not so described.
(xi) There are no contracts, agreements or understandings of the Company or any of its subsidiaries that are required to be filed as exhibits to the Registration Statement by the Securities Act or by the Securities Act Rules and Regulations that have not been so filed or incorporated by reference therein as permitted by the Securities Act Rules and Regulations.
(xii) This Agreement has been duly authorized, executed and delivered by the Company.
(xiii) The execution, delivery and performance of this Agreement, the issuance and sale of the Shares and the consummation of the transactions contemplated herein and the Prospectus (including the issuance and sale of the Shares and the use of the proceeds from the sale of the Shares as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or result in a breach or violation of any of the terms and provisions of, constitute a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any of its subsidiaries pursuant to, any agreement, indenture, mortgage, lease or other instrument to which the Company or any of its subsidiaries is a party or by which it or any of its properties or assets may be bound nor will such action result in any violation of the Company’s or any of its subsidiaries’ charter, bylaws or other organizational documents, or any order, law, statute, rule, regulation, judgment, order, writ or decree of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Company or any of its subsidiaries or any of their respective assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its subsidiaries.,
Appears in 1 contract
Representations and Warranties by the Company. The Company represents and warrants to the Sales Manager as of the date hereof and as of each Representation Date (as defined herein) on which a certificate is required to be delivered pursuant to Section 7(n) of this Agreement and as of the time of each sale of any Shares or any securities pursuant to this Agreement (the “Applicable Time”), and agrees with the Sales Manager, as follows:
(i) The Company meets the requirements for use of Form N-2 under the Securities Act and the Securities Act Rules and Regulations. At the time the Registration Statement became effective, the Registration Statement complied in all material respects with the requirements of the Securities Act and the Securities Act Rules and Regulations and did not include 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 Prospectus complied, as of its date, in all material respects, with the requirements of the Securities Act and the Securities Act Rules and Regulations as of the Applicable Time, did not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; the Prospectus, as of the date of the Prospectus Supplement, will comply in all material respects with the requirements of the Securities Act and the Securities Act Rules and Regulations, and the Prospectus, as of the date of the Prospectus Supplement and the Applicable Time, did not and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the representations and warranties in this subsection shall not apply to statements in or omissions from the Registration Statement or Prospectus or any amendments or supplements thereto made in reliance upon and in conformity with information relating to the Sales Manager furnished to the Company in writing by the Sales Manager expressly for use in the Registration Statement or Prospectus, it being understood and agreed that the only such information furnished by the Sales Manager consists of the following information in the Prospectus Supplement furnished on behalf the Sales Manager: the last paragraph under the caption “Plan of Distribution.” The Shares have been duly registered under the Securities Act pursuant to the Registration Statement. Each of the Registration Statement, any Rule 462(b) Registration Statement and any post-effective amendments thereto has become effective, and no order suspending the effectiveness of the Registration Statement has been issued by the Commission.
(ii) The Registration Statement has become effective; the Commission has not issued, and is not, to the knowledge of the Company, threatening to issue, any stop order under the Securities Act or other order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto, and no proceedings for such purpose have been instituted or are pending or, to the best knowledge of the Company are contemplated or threatened by the Commission.
(iii) The Company has elected to be regulated by the Commission as a business development company under the Investment Company Act of 1940, as amended (the “Investment Company Act”), and has not withdrawn that election, and the Commission has not ordered that such election be withdrawn nor to the best of the Company’s knowledge have proceedings to effectuate such withdrawal been initiated or threatened by the Commission.
(iv) To the Company’s knowledge, PricewaterhouseCoopers [RSM US LLP], the accounting firm that audited the financial statements of the Company set forth in the Registration Statement and Prospectus, were and are independent registered accounting firms as required by the Securities Act and the Securities Act Rules and Regulations and the rules and regulations of the Public Company Accounting Oversight Board.
(v) The financial statements, together with the related schedules and notes thereto, of the Company set forth in the Registration Statement and the Prospectus fairly present in all material respects the results of operations and financial condition of the Company and its subsidiaries as of the dates indicated and the results of their operations for the respective periods specified, and are prepared in conformity with U.S. generally accepted accounting principles and the selected financial information and data included in the Registration Statement and the Prospectus have been prepared on a basis consistent with that of the books and records of the Company.
(vi) The Company (A) has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland, has full corporate power and authority to conduct its business as described in the Prospectus; (B) has full power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby; and (C) is duly licensed or qualified to do business as a foreign corporation and in good standing in each jurisdiction where the Company is required to be qualified or licensed or in good standing, except where the failure to be so qualified or licensed or to be in good standing would not result in a material adverse effect upon the financial condition, business or operations of the Company and its subsidiaries, taken as a whole (“Material Adverse Effect”).
(vii) The Company is not, or with the giving of notice or lapse of time or both would not be, in default or violation with respect to its charter or bylaws or governing documents. The Company is not, or with the giving of notice or lapse of time or both would not be, in default in the performance or observance of any obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which the Company is a party or by which the Company is bound or to which any of the properties or assets of the Company is subject, or in violation of any statutes, laws, ordinances or governmental rules or regulations or any orders or decrees to which it is subject.
(viii) The Company’s authorized capitalization is as set forth in the Prospectus; the outstanding shares of Common Stock have been duly authorized and validly issued and are fully paid and non-assessable and conform in all material respects to the description thereof in the Prospectus under the heading “Description of Capital Stock;” the Shares have been duly authorized by all requisite corporate action on the part of the Company for the issuance and sale of the Shares to the Sales Manager pursuant to this Agreement and, when the Shares are delivered and paid for pursuant to this Agreement on the Applicable Time, such Shares will have been validly issued and fully paid and non-assessable. The stockholders of the Company have no preemptive rights with respect to the Shares and none of the outstanding shares of capital stock of the Company have been issued in violation of any preemptive rights of any security holder.
(ix) Except as set forth in the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, (A) the Company and its subsidiaries have not incurred any liabilities or obligations, direct or contingent, or entered into any transactions, other than in the ordinary course of business, that are material to the Company and its subsidiaries taken as a whole, (B) there has not been any material change in the capital stock of the Company, or any material adverse change, or, to the Company’s knowledge, any development involving a prospective material adverse change, in the condition (financial or otherwise), business, net worth, property or results of operations of the Company (excluding changes due to investment activities in the ordinary course of business), (C) there has been no dividend or distribution declared or paid in respect of the Company’s capital stock and (D) the Company and its subsidiaries have not incurred any short-term debt or long-term debt that is, in either case, material with respect to the Company and its subsidiaries taken as a whole (excluding debt resulting from a draw down on the Company’s credit facilities).
(x) There is no pending or, to the knowledge of the Company, threatened action, suit or proceeding, legal or governmental, to which the Company or any of its subsidiaries is a party, before or by any court or governmental agency or body, that is required to be described in the Prospectus and is not so described.
(xi) There are no contracts, agreements or understandings of the Company or any of its subsidiaries that are required to be filed as exhibits to the Registration Statement by the Securities Act or by the Securities Act Rules and Regulations that have not been so filed or incorporated by reference therein as permitted by the Securities Act Rules and Regulations.
(xii) This Agreement has been duly authorized, executed and delivered by the Company.
(xiii) The execution, delivery and performance of this Agreement, the issuance and sale of the Shares and the consummation of the transactions contemplated herein and the Prospectus (including the issuance and sale of the Shares and the use of the proceeds from the sale of the Shares as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or result in a breach or violation of any of the terms and provisions of, constitute a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any of its subsidiaries pursuant to, any agreement, indenture, mortgage, lease or other instrument to which the Company or any of its subsidiaries is a party or by which it or any of its properties or assets may be bound nor will such action result in any violation of the Company’s or any of its subsidiaries’ charter, bylaws or other organizational documents, or any order, law, statute, rule, regulation, judgment, order, writ or decree of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Company or any of its subsidiaries or any of their respective assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its subsidiaries.
Appears in 1 contract
Sources: Equity Distribution Agreement (Newtek Business Services Corp.)
Representations and Warranties by the Company. The Company represents and warrants to each Underwriter named in the Sales Manager applicable Underwriting Agreement, as of the date hereof and as of each Representation Date Pricing Effective Time (as defined hereinbelow), as of the Closing Time (as defined below) on which a certificate is required to be delivered pursuant to Section 7(n) of this Agreement and as of the time of each sale of any Shares or any securities pursuant Option Closing Time (as defined below) with respect to this Agreement (the “Applicable Time”), and agrees with the Sales Manager, Designated Securities as follows:
(i1) The each document filed by the Company meets pursuant to the requirements for use of Form N-2 under the Securities 1934 Act and the Securities Act Rules and Regulations. At the time which is incorporated by reference in the Registration Statement became effectiveStatement, the Registration Statement Prospectus or the Pricing Disclosure Material (as defined below) complied when so filed in all material respects with the requirements of the Securities 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 in all material respects 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 the 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 Rules complied when so filed in all material respects with the 1933 Act and Regulations and did the 1933 Act Regulations;
(i) at the Effective Time, the Registration Statement will not include any contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) at the Prospectus complied, as of its date, in all material respects, with the requirements of the Securities Act and the Securities Act Rules and Regulations as of the Applicable Pricing Effective Time, the Pricing Disclosure Material (as defined below) did not contain any 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; and (iii) the Prospectus, Prospectus as of the date of the Prospectus Supplement, Pricing Supplement will comply in all material respects with the requirements of the Securities Act and the Securities Act Rules and Regulationsnot, and the ProspectusProspectus (as amended or supplemented, other than as to supplements relating only to securities other than the Designated Securities) as of the date of the Prospectus Supplement and the Applicable TimeClosing Time will not, did not and will not contain any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, except that the these representations and warranties in this subsection shall do not apply to (a) statements in or omissions from in the Registration Statement or Prospectus or Statement, any Preliminary Prospectus, the Prospectus, any amendments or supplements thereto made in reliance upon and in conformity with information relating to the Sales Manager foregoing, or in the Pricing Disclosure Material, based upon information furnished to the Company in writing by the Sales Manager any Underwriter expressly for use in the Registration therein and (b) any Form T-1 Statement or Prospectus, it being understood of Eligibility and agreed that the only such information furnished by the Sales Manager consists of the following information in the Prospectus Supplement furnished on behalf the Sales Manager: the last paragraph under the caption “Plan of Distribution.” The Shares have been duly registered under the Securities Act pursuant Qualification included as an exhibit to the Registration Statement. Each ;
(5) the Registration Statement constitutes an “automatic shelf registration statement” (as defined in Rule 405 under the ▇▇▇▇ ▇▇▇) filed within three years of the Registration Statement, any Rule 462(b) Registration Statement and any post-effective amendments thereto has become effective, and date hereof; no order suspending notice of objection of the effectiveness Commission with respect to the use of the Registration Statement pursuant to Rule 401(g)(2) under the 1933 Act has been issued received by the Commission.
(ii) The Registration Statement has become effective; the Commission has not issued, and is not, to the knowledge of the Company, threatening to issue, any stop order under the Securities Act or other order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto, and no proceedings for such purpose have been instituted or are pending or, to the best knowledge of the Company are contemplated or threatened by the Commission.
(iii) The Company has elected to be regulated by the Commission as a business development company under the Investment Company Act of 1940, as amended (the “Investment Company Act”), and has not withdrawn that election, and the Commission has not ordered that such election be withdrawn nor to the best of the Company’s knowledge have proceedings to effectuate such withdrawal been initiated or threatened by the Commission.
(iv) To the Company’s knowledge, PricewaterhouseCoopers LLP, the accounting firm that audited the financial statements of the Company set forth in the Registration Statement and Prospectus, were and are independent registered accounting firms as required by the Securities Act and the Securities Act Rules and Regulations and the rules and regulations of the Public Company Accounting Oversight Board.
(v) The financial statements, together with the related schedules and notes thereto, of the Company set forth in the Registration Statement and the Prospectus fairly present in all material respects the results of operations and financial condition of the Company and its subsidiaries as of the dates indicated and the results of their operations for the respective periods specified, and are prepared in conformity with U.S. generally accepted accounting principles and the selected financial information and data included in the Registration Statement and the Prospectus have been prepared on a basis consistent with that of the books and records of the Company.
(vi) The Company (A) has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland, has full corporate power and authority to conduct its business as described in the Prospectus; (B) has full power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby; and (C) is duly licensed or qualified to do business as a foreign corporation and in good standing in each jurisdiction where the Company is required to be qualified or licensed or in good standing, except where the failure to be so qualified or licensed or to be in good standing would not result in a material adverse effect upon the financial condition, business or operations of the Company and its subsidiaries, taken as a whole (“Material Adverse Effect”).
(vii) The Company is not, or with the giving of notice or lapse of time or both would not be, in default or violation with respect to its charter or bylaws or governing documents. The Company is not, or with the giving of notice or lapse of time or both would not be, in default in the performance or observance of any obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which the Company is a party or by which “well-known seasoned issuer” and is not an ineligible issuer in each case as defined in Rule 405 at the Company is bound or to which any of the properties or assets of the Company is subject, or in violation of any statutes, laws, ordinances or governmental rules or regulations or any orders or decrees to which it is subject.
(viii) The Company’s authorized capitalization is as set forth in the Prospectus; the outstanding shares of Common Stock have been duly authorized and validly issued and are fully paid and non-assessable and conform in all material respects “determination dates” relevant to the description thereof in the Prospectus under the heading “Description of Capital Stock;” the Shares have been duly authorized by all requisite corporate action on the part of the Company for the issuance offering and sale of the Shares to the Sales Manager pursuant to this Agreement and, when the Shares are delivered and paid for pursuant to this Agreement on the Applicable Time, such Shares will have been validly issued and fully paid and non-assessable. The stockholders of the Company have no preemptive rights with respect to the Shares and none of the outstanding shares of capital stock of the Company have been issued in violation of any preemptive rights of any security holder.
(ix) Except as set forth in the Prospectus, subsequent to the respective dates as of which information is given in Designated Securities under the Registration Statement and the Prospectus, (Aas described in such definition); and
(6) the Company and its subsidiaries have has not incurred used any liabilities or obligations, direct or contingent, or entered into any transactions, free writing prospectus other than a Permitted Free Writing Prospectus or used a Permitted Free Writing Prospectus except in the ordinary course of business, that are material to the Company and its subsidiaries taken as a whole, (B) there has not been any material change in the capital stock of the Company, or any material adverse change, or, to the Company’s knowledge, any development involving a prospective material adverse change, in the condition (financial or otherwise), business, net worth, property or results of operations of the Company (excluding changes due to investment activities in the ordinary course of business), (C) there has been no dividend or distribution declared or paid in respect of the Company’s capital stock and (D) the Company and its subsidiaries have not incurred any short-term debt or long-term debt that is, in either case, material compliance with respect to the Company and its subsidiaries taken as a whole (excluding debt resulting from a draw down on the Company’s credit facilities).
(x) There is no pending or, to the knowledge of the Company, threatened action, suit or proceeding, legal or governmental, to which the Company or any of its subsidiaries is a party, before or by any court or governmental agency or body, that is required to be described in the Prospectus and is not so described.
(xi) There are no contracts, agreements or understandings of the Company or any of its subsidiaries that are required to be filed as exhibits to the Registration Statement by the Securities Act or by the Securities Act Rules and Regulations that have not been so filed or incorporated by reference therein as permitted by the Securities Act Rules and Regulations.
(xii) This Agreement has been duly authorized, executed and delivered by the Company.
(xiii) The execution, delivery and performance of this Agreement, the issuance and sale of the Shares and the consummation of the transactions contemplated herein and the Prospectus (including the issuance and sale of the Shares and the use of the proceeds from the sale of the Shares as described in the Prospectus Rule 433 under the caption “Use of Proceeds”) 1933 Act and otherwise in compliance by with the Company with its obligations hereunder do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or result in a breach or violation of any of the terms and provisions of, constitute a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any of its subsidiaries pursuant to, any agreement, indenture, mortgage, lease or other instrument to which the Company or any of its subsidiaries is a party or by which it or any of its properties or assets may be bound nor will such action result in any violation of the Company’s or any of its subsidiaries’ charter, bylaws or other organizational documents, or any order, law, statute, rule, regulation, judgment, order, writ or decree of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Company or any of its subsidiaries or any of their respective assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its subsidiaries1933 Act.
Appears in 1 contract
Sources: Underwriting Agreement
Representations and Warranties by the Company. The Company represents and warrants to the Sales Manager each Underwriter as of the date hereof hereof, as of the Closing Time (as defined in Section 2(c) hereof, and as of each Representation Date of Delivery (as defined hereinif any) on which a certificate is required referred to be delivered pursuant to in Section 7(n2(b) of this Agreement and as of the time of each sale of any Shares or any securities pursuant to this Agreement (the “Applicable Time”hereof), and agrees with the Sales Manager, each Underwriter as follows:
(i) The Company meets the requirements for use of Form N-2 S-3 under the Securities Act. The Registration Statement has become effective under the Act and no stop order suspending the Securities effectiveness of the Registration Statement has been issued under the Act Rules and Regulationsno 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. At the time respective times the Registration Statement and any post-effective amendments thereto became effectiveeffective and at the Closing Time (and, if any Option Securities are purchased, at the Date of Delivery), the Registration Statement and any amendments and supplements thereto complied and will comply in all material respects with the requirements of the Securities Act and the Securities 1933 Act Rules and Regulations and did not include any 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; . Neither the Prospectus compliednor any amendments or supplements thereto, as at the time the Prospectus or any such amendment or supplement was issued and at the Closing Time (and, if any Option Securities are purchased, at the Date of its dateDelivery), in all material respects, with the requirements of the Securities Act and the Securities Act Rules and Regulations as of the Applicable Time, did not contain any 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 Prospectus, as of the date of the Prospectus Supplement, will comply in all material respects with the requirements of the Securities Act and the Securities Act Rules and Regulations, and the Prospectus, as of the date of the Prospectus Supplement and the Applicable Time, did not and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the . The representations and warranties in this subsection shall not apply to statements in or omissions from the Registration Statement or Prospectus or any amendments or supplements thereto made in reliance upon and in conformity with information relating to the Sales Manager furnished to the Company in writing by the Sales Manager any Underwriter through expressly for use in the Registration Statement or Prospectus. The Prospectus, it being understood when filed pursuant to Rule 424(b) under the Act, will comply in all material respects with the 1933 Act Regulations and agreed that the only such information furnished by the Sales Manager consists of the following information in the Prospectus Supplement furnished on behalf delivered to the Sales Manager: Underwriters for use in connection with this offering was substantially identical to the last paragraph under electronically transmitted copies thereof filed with the caption “Plan of Distribution.” The Shares have been duly registered under the Securities Act Commission pursuant to ▇▇▇▇▇, except to the Registration Statement. Each of the Registration Statement, any Rule 462(b) Registration Statement and any postextent permitted by Regulation S-effective amendments thereto has become effective, and no order suspending the effectiveness of the Registration Statement has been issued by the Commission.T.
(ii) The Registration Statement has become effective; the Commission has not issued, and is not, to the knowledge of the Company, threatening to issue, any stop order under the Securities Act documents incorporated or other order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto, and no proceedings for such purpose have been instituted or are pending or, to the best knowledge of the Company are contemplated or threatened by the Commission.
(iii) The Company has elected deemed to be regulated incorporated by the Commission as a business development company under the Investment Company Act of 1940, as amended (the “Investment Company Act”), and has not withdrawn that election, and the Commission has not ordered that such election be withdrawn nor to the best of the Company’s knowledge have proceedings to effectuate such withdrawal been initiated or threatened by the Commission.
(iv) To the Company’s knowledge, PricewaterhouseCoopers LLP, the accounting firm that audited the financial statements of the Company set forth reference in the Registration Statement and the Prospectus, at the time they were or hereafter are filed with the Commission, complied and are independent registered accounting firms as required by will comply in all material respects with the Securities requirements of the Act and the 1933 Act Regulations or the Securities Exchange Act Rules and Regulations of 1934 (the "Exchange Act") and the rules and regulations of the Public Company Accounting Oversight BoardCommission thereunder (the "Exchange Act Regulations"), as applicable, and, when read together with the other information in the Prospectus, at the time the Registration Statement became effective, at the time the Prospectus was issued and at the Closing Time, 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.
(viii) The financial statements, together with the related schedules and notes thereto, of the Company set forth in the Registration Statement and the Prospectus fairly present in all material respects the results of operations and financial condition Each of the Company and its subsidiaries each "significant subsidiary" (as defined in Section 210.1-02 of Regulation S-X) of the dates indicated and the results of their operations for the respective periods specified, and are prepared in conformity with U.S. generally accepted accounting principles and the selected financial information and data included in the Registration Statement and the Prospectus have been prepared on a basis consistent with that of the books and records of the Company.
(vi) The Company (Aeach a "Subsidiary" and collectively, the "Subsidiaries") has been duly incorporated organized and is validly existing as a corporation and in good standing under the laws of its jurisdiction of organization, with all requisite power and authority under such laws, and all necessary authorizations, approvals, orders, licenses, certificates and permits of and from regulatory or governmental officials, bodies and tribunals, (a) to own, lease and operate their respective properties and to conduct their respective businesses as now conducted and as described in the State Prospectus and (b), in the case of Marylandthe Company, to enter into, deliver and perform its obligations under this Agreement, [the Indenture] and the Securities, except, in the case of the foregoing subclause (a) for authorizations, approvals, orders, leases, certificates and permits, the failure of which to possess could not reasonably be expected to have a Material Adverse Effect (as defined below); and are all duly qualified to do business and in good standing in all other jurisdictions where the ownership or leasing of their respective properties or the conduct of their respective businesses requires such qualification, except where the failure to be so qualified could not reasonably be expected to have a material adverse effect (i) on the business, condition (financial or otherwise), results of operations, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business or (ii) on the ability of the Company to perform any of its obligations under this Agreement or to consummate any of the transactions contemplated hereby (a "Material Adverse Effect").
(iv) The Securities have been duly authorized by the Company, and the Company has full all requisite corporate power and authority to conduct execute, issue and deliver the Securities, and to incur and perform its business obligations provided for therein.
(v) The Securities, when executed, authenticated and issued in accordance with the terms of the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee) and when delivered against payment of the purchase price therefor as described provided in this Agreement, will constitute valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with the terms thereof; subject, in the Prospectus; case of each of the foregoing, to (Ba) applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors' rights and remedies generally, (b) general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and (c) the discretion of the court before which any proceeding therefor may be brought (clauses (a), (b) and (c) being referred to herein as the "Enforceability Limitations").]
(vi) The Company has full all requisite corporate power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby; and (C) is duly licensed or qualified to do business as a foreign corporation and in good standing in each jurisdiction where the Company is required to be qualified or licensed or in good standing, except where the failure to be so qualified or licensed or to be in good standing would not result in a material adverse effect upon the financial condition, business or operations of the Company and its subsidiaries, taken as a whole (“Material Adverse Effect”).
(vii) The Company is not, or with the giving of notice or lapse of time or both would not be, in default or violation with respect to its charter or bylaws or governing documents. The Company is not, or with the giving of notice or lapse of time or both would not be, in default in the performance or observance of any obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which the Company is a party or by which the Company is bound or to which any of the properties or assets of the Company is subject, or in violation of any statutes, laws, ordinances or governmental rules or regulations or any orders or decrees to which it is subject.
(viii) The Company’s authorized capitalization is as set forth in the Prospectus; the outstanding shares of Common Stock have been duly authorized and validly issued and are fully paid and non-assessable and conform in all material respects to the description thereof in the Prospectus under the heading “Description of Capital Stock;” the Shares have been duly authorized by all requisite corporate action on the part of the Company for the issuance and sale of the Shares to the Sales Manager pursuant to this Agreement and, when the Shares are delivered and paid for pursuant to this Agreement on the Applicable Time, such Shares will have been validly issued and fully paid and non-assessable. The stockholders of the Company have no preemptive rights with respect to the Shares and none of the outstanding shares of capital stock of the Company have been issued in violation of any preemptive rights of any security holder.
(ix) Except as set forth in the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement [and the Prospectus, (A) the Company Indenture] and perform its subsidiaries have not incurred any liabilities or obligations, direct or contingent, or entered into any transactions, other than in the ordinary course of business, that are material to the Company and its subsidiaries taken as a whole, (B) there has not been any material change in the capital stock of the Company, or any material adverse change, or, to the Company’s knowledge, any development involving a prospective material adverse change, in the condition (financial or otherwise), business, net worth, property or results of operations of the Company (excluding changes due to investment activities in the ordinary course of business), (C) there has been no dividend or distribution declared or paid in respect of the Company’s capital stock and (D) the Company and its subsidiaries have not incurred any short-term debt or long-term debt that is, in either case, material with respect to the Company and its subsidiaries taken as a whole (excluding debt resulting from a draw down on the Company’s credit facilities).
(x) There is no pending or, to the knowledge of the Company, threatened action, suit or proceeding, legal or governmental, to which the Company or any of its subsidiaries is a party, before or by any court or governmental agency or body, that is required to be described in the Prospectus and is not so described.
(xi) There are no contracts, agreements or understandings of the Company or any of its subsidiaries that are required to be filed as exhibits to the Registration Statement by the Securities Act or by the Securities Act Rules and Regulations that have not been so filed or incorporated by reference therein as permitted by the Securities Act Rules and Regulations.
(xii) obligations provided for therein. This Agreement has been been[, and, as of the Closing Date, the Indenture will have been,] duly authorized, executed and delivered by the Company [and upon such execution by the Company (assuming the due authorization, execution and delivery by parties thereto other than the Company) and, as of the Closing Date, the Indenture will constitute, the valid and binding obligation of the Company, enforceable against the Company in accordance with the terms hereof or thereof, subject only to the Enforceability Limitations.]
(vii) No consent, waiver, authorization, approval, license, qualification or order of, or filing or registration with, any court or governmental or regulatory agency or body, is required for the performance by the Company of its obligations hereunder in connection with the offering, issuance or sale of the Securities under this Agreement, or for the consummation of any of the transactions contemplated to be taken by the Company pursuant to this Agreement [or the Indenture,] except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus.
(xiiiviii) The issuance, sale and delivery of the Securities, the execution, delivery and performance by the Company of this Agreement, [the issuance Indenture and sale of the Shares Securities] and the consummation by the Company of the transactions contemplated herein hereby and in the Prospectus (including the issuance and sale of the Shares and the use of the proceeds from the sale of the Shares Securities as described in the Prospectus under the caption “"Use of Proceeds”") and the compliance by the Company with its obligations hereunder the terms of the foregoing do not and will not, whether and, at the Closing Time, will not conflict with or without the giving of notice or passage of time or both, conflict with constitute or result in a breach or violation by the Company or any of the Subsidiaries of (A) any of the terms and or provisions of, or constitute a default (or Repayment Event (as defined belowan event which, with notice or lapse of time or both, would constitute a default) by any of the Company or the Subsidiaries or give rise to any right to accelerate the maturity or require the prepayment of any indebtedness under, or result in the creation or imposition of any lien, charge or encumbrance upon any properties property or assets of the Company or the Subsidiaries under any of its subsidiaries pursuant to, any agreementcontract, indenture, mortgage, lease deed of trust, loan agreement, note, lease, license, franchise agreement, authorization, permit, certificate or other instrument agreement or document to which any of the Company or any of its subsidiaries the Subsidiaries is a party or by which it any of them may be bound, or to which any of them or any of its properties their respective assets or assets may be bound nor will businesses is subject (collectively, "Contracts") (and the Company has no knowledge of any conflict, breach or violation of such action result terms or provisions or of any such default, in any such case, which has occurred or will so result), except for any such conflict, breach or violation which would not, individually or in the aggregate, have a Material Adverse Effect, (B) the articles of incorporation, by-laws or similar organizational documents (each, an "Organizational Document") of each of the Company’s Company or the Subsidiaries or (C) any of its subsidiaries’ charter, bylaws or other organizational documents, or any order, law, statute, rule, rule or regulation, or any judgment, decree or order, writ or decree in any such case, of any domestic or foreign court or governmental or regulatory agency or body, domestic or foreign, other body having jurisdiction over the Company or any of its subsidiaries the Subsidiaries or any of their respective assets, properties or operationsassets.
(ix) The Securities and the Indenture will conform in all material respects to the respective statements relating thereto contained in the Prospectus and will be in substantially the respective forms filed or incorporated by reference, as the case may be, as exhibits to the Registration Statement. As used hereinThe Indenture has been qualified under the Trust Indenture Act of 1939, a “Repayment Event” means any event or condition which gives as amended (the "TIA") and complies in all material respects with the requirements of the Trust Indenture Act.]
(x) The Common [Preferred] Stock conforms to all statements relating thereto contained in the Prospectus and such description conforms to the rights set forth in the instruments defining the same. The shares of Common Stock issuable hereunder have been duly authorized by all necessary corporate action and such shares, when issued hereunder will be validly issued and will be fully paid and non-assessable; no holder of any note, debenture such shares will be subject to personal liability by reason of being such a holder; and the issuance of such shares will not be subject to the preemptive or other evidence similar rights of indebtedness any security holder of the Company.]
(xi) The audited and unaudited consolidated financial statements of the Company included in the Registration Statement and the Prospectus, including the notes thereto, present fairly in all material respects the financial position of the Company and its consolidated subsidiaries at the dates indicated, and the statement of operations, stockholders' equity and cash flows of the Company and its consolidated subsidiaries for the periods have been prepared in conformity with United States generally accepted accounting principles ("GAAP") applied on a consistent basis throughout the periods involved. Coopers & ▇▇▇▇▇▇▇ L.L.P., which certified the financial statements included in the Registration Statement and Prospectus, is an independent public accounting firm as required by the Act and the 1933 Act Regulations. The selected financial data and the summary financial information included in the Prospectus present fairly in all material respects the information shown therein and have been compiled on a basis consistent with that of the financial statements included in the Prospectus.
(xii) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, except as otherwise specifically stated therein, there has been no (A) material adverse change in the business, condition (financial or any person acting on such holder’s behalfotherwise), results of operations, business affairs or business prospects of the Company and the Subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business (a "Material Adverse Change"), (B) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness transaction entered into by the Company or the Subsidiaries, other than in the ordinary course of business, that is material to the Company and the Subsidiaries considered as one enterprise, or (C) dividend or distribution of any kind declared, paid or made by the Company on its capital stock.
(xiii) The Company has the authorized, issued and outstanding capitalization set forth in the Prospectus under the column entitled "Actual" under the caption "Capitalization"; all of the outstanding capital stock of the Company has been duly authorized and validly issued, is fully paid and nonassessable and was not issued in violation of any preemptive or similar rights (whether provided contractually or pursuant to any Organizational Document). Except as set forth in the Prospectus, the Company does not own, directly or indirectly, any material amount of shares, or any other material amount of equity or long-term debt securities or have any material equity interest in any firm, partnership, joint venture or other entity. Except as set forth in the Prospectus, no holder of any securities of the Company is entitled to have such securities under the Registration Statement or otherwise registered by the Company under the Act. All of the outstanding capital stock of each of the Subsidiaries has been duly authorized and validly issued, is fully paid and nonassessable and is owned by the Company, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity.
(xiv) Neither the Company nor any of the Subsidiaries is (A) in violation of its subsidiariesrespective Organizational Documents, (B) in default (or, with notice or lapse of time or both, would be in default) in the performance or observance of any obligation, agreement, covenant or condition contained in any Contract or (C) in violation of any law, statute, judgment, decree, order, rule or regulation of any domestic or foreign court with jurisdiction over the Company or the Subsidiaries or any of their respective assets or properties, or other governmental or regulatory authority, agency or other body, other than, in the case of clause (B) or (C), such defaults or violations which could not, individually or in the aggregate, reasonably be expected to have or result in a Material Adverse Effect; and any real property and buildings held under lease by the Company or the Subsidiaries are held by the Company or such Subsidiary, as the case may be, under valid, subsisting and enforceable leases with such exceptions which could not, individually or in the aggregate, reasonably be expected to have or result in a Material Adverse Effect.
(xv) Except as described in the Prospectus, each of the Company and the Subsidiaries has obtained all consents, approvals, orders, certificates, licenses, permits, franchises and other authorizations, in each case material to the operations of the Company (collectively, the "Licenses") of and from, and has made all declarations and filings with, all governmental and regulatory authorities, all self-regulatory organizations and all courts and other tribunals necessary to own, lease, license and use its properties and assets and to conduct its businesses in the manner described in the Prospectus, except where the failure to do so could not, singly or in the aggregate, reasonably be expected to have or result in a Material Adverse Effect.
(xvi) Except as described in the Prospectus, there is no legal action, suit, proceeding inquiry or investigation before or by any court or governmental body or agency, domestic or foreign, now pending or, to the best knowledge of the Company, threatened agains
Appears in 1 contract
Sources: Underwriting Agreement (Commonwealth Telephone Enterprises Inc /New/)
Representations and Warranties by the Company. The Company represents and warrants to the Sales Manager each Underwriter as of the date hereof and as of each Representation Date the Closing Time referred to in Section 2(c) hereof (as defined herein) on which a certificate is required to be delivered pursuant to Section 7(n) of this Agreement and as of the time of each sale of any Shares or any securities pursuant to this Agreement (the “Applicable Time”unless otherwise specified), and agrees with the Sales Managereach Underwriter, as follows:
(i) The Company meets Registration Statement has become effective; no stop order suspending the requirements for use effectiveness of Form N-2 under the Securities Act and the Securities Act Rules and Regulations. At the time the Registration Statement is in effect, and no proceedings for such purpose are pending before or threatened by the Commission. The Company is a well-known seasoned issuer (as defined in Rule 405 under the ▇▇▇▇ ▇▇▇) eligible to use the Registration Statement as an automatic shelf registration statement and the Company has not received notice that the Commission objects to the use of the Registration Statement as an automatic shelf registration statement.
(a) The Registration Statement, when it became effective, the Registration Statement complied in all material respects with the requirements of the Securities Act and the Securities Act Rules and Regulations and did not include contain, and as amended or supplemented, if applicable, will not contain 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; , (b) the Registration Statement as of the date hereof does not contain 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, (c) the Registration Statement and the Prospectus compliedcomply, and as of its dateamended or supplemented, if applicable, will comply in all material respects, respects with the requirements of the Securities 1933 Act and the Securities Act Rules applicable rules and Regulations as regulations of the Applicable Commission thereunder, (d) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Time, did the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (e) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; misleading and (f) the ProspectusProspectus does not contain and, as of the date of the Prospectus Supplementamended or supplemented, will comply in all material respects with the requirements of the Securities Act and the Securities Act Rules and Regulationsif applicable, and the Prospectus, as of the date of the Prospectus Supplement and the Applicable Time, did not and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the . The representations and warranties in this subsection shall not apply to statements in or omissions from the Registration Statement or Statement, the Time of Sale Prospectus or any amendments or supplements thereto the Prospectus made in reliance upon and in conformity with information relating to the Sales Manager furnished to the Company in writing by the Sales Manager any Underwriter expressly for use in the Registration Statement or Prospectus, it being understood and agreed that the only such information furnished by the Sales Manager consists of the following information in the Prospectus Supplement furnished on behalf the Sales Manager: the last paragraph under the caption “Plan of Distributiontherein.” The Shares have been duly registered under the Securities Act pursuant to the Registration Statement. Each of the Registration Statement, any Rule 462(b) Registration Statement and any post-effective amendments thereto has become effective, and no order suspending the effectiveness of the Registration Statement has been issued by the Commission.
(ii) The Registration Statement has become effective; the Commission has not issued, and is not, to the knowledge of the Company, threatening to issue, any stop order under the Securities Act or other order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto, and no proceedings for such purpose have been instituted or are pending or, to the best knowledge of the Company are contemplated or threatened by the Commission.
(iii) The Company has elected to be regulated by the Commission as a business development company under the Investment Company Act of 1940, as amended (the “Investment Company Act”), and has not withdrawn that election, and the Commission has not ordered that such election be withdrawn nor to the best of the Company’s knowledge have proceedings to effectuate such withdrawal been initiated or threatened by the Commission.
(iv) To the Company’s knowledge, PricewaterhouseCoopers LLP, the accounting firm that audited the financial statements of the Company set forth in the Registration Statement and Prospectus, were and are independent registered accounting firms as required by the Securities Act and the Securities Act Rules and Regulations and the rules and regulations of the Public Company Accounting Oversight Board.
(v) The financial statements, together with the related schedules and notes thereto, of the Company set forth in the Registration Statement and the Prospectus fairly present in all material respects the results of operations and financial condition of the Company and its subsidiaries as of the dates indicated and the results of their operations for the respective periods specified, and are prepared in conformity with U.S. generally accepted accounting principles and the selected financial information and data included in the Registration Statement and the Prospectus have been prepared on a basis consistent with that of the books and records of the Company.
(vi) The Company (A) has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland, has full corporate power and authority to conduct its business as described in the Prospectus; (B) has full power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby; and (C) is duly licensed or qualified to do business as a foreign corporation and in good standing in each jurisdiction where the Company is required to be qualified or licensed or in good standing, except where the failure to be so qualified or licensed or to be in good standing would not result in a material adverse effect upon the financial condition, business or operations of the Company and its subsidiaries, taken as a whole (“Material Adverse Effect”).
(vii) The Company is not, or with the giving of notice or lapse of time or both would not be, in default or violation with respect to its charter or bylaws or governing documents. The Company is not, or with the giving of notice or lapse of time or both would not be, in default in the performance or observance of any obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which the Company is a party or by which the Company is bound or to which any of the properties or assets of the Company is subject, or in violation of any statutes, laws, ordinances or governmental rules or regulations or any orders or decrees to which it is subject.
(viii) The Company’s authorized capitalization is as set forth in the Prospectus; the outstanding shares of Common Stock have been duly authorized and validly issued and are fully paid and non-assessable and conform in all material respects to the description thereof in the Prospectus under the heading “Description of Capital Stock;” the Shares have been duly authorized by all requisite corporate action on the part of the Company for the issuance and sale of the Shares to the Sales Manager pursuant to this Agreement and, when the Shares are delivered and paid for pursuant to this Agreement on the Applicable Time, such Shares will have been validly issued and fully paid and non-assessable. The stockholders of the Company have no preemptive rights with respect to the Shares and none of the outstanding shares of capital stock of the Company have been issued in violation of any preemptive rights of any security holder.
(ix) Except as set forth in the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, (A) the Company and its subsidiaries have not incurred any liabilities or obligations, direct or contingent, or entered into any transactions, other than in the ordinary course of business, that are material to the Company and its subsidiaries taken as a whole, (B) there has not been any material change in the capital stock of the Company, or any material adverse change, or, to the Company’s knowledge, any development involving a prospective material adverse change, in the condition (financial or otherwise), business, net worth, property or results of operations of the Company (excluding changes due to investment activities in the ordinary course of business), (C) there has been no dividend or distribution declared or paid in respect of the Company’s capital stock and (D) the Company and its subsidiaries have not incurred any short-term debt or long-term debt that is, in either case, material with respect to the Company and its subsidiaries taken as a whole (excluding debt resulting from a draw down on the Company’s credit facilities).
(x) There is no pending or, to the knowledge of the Company, threatened action, suit or proceeding, legal or governmental, to which the Company or any of its subsidiaries is a party, before or by any court or governmental agency or body, that is required to be described in the Prospectus and is not so described.
(xi) There are no contracts, agreements or understandings of the Company or any of its subsidiaries that are required to be filed as exhibits to the Registration Statement by the Securities Act or by the Securities Act Rules and Regulations that have not been so filed or incorporated by reference therein as permitted by the Securities Act Rules and Regulations.
(xii) This Agreement has been duly authorized, executed and delivered by the Company.
(xiii) The execution, delivery and performance of this Agreement, the issuance and sale of the Shares and the consummation of the transactions contemplated herein and the Prospectus (including the issuance and sale of the Shares and the use of the proceeds from the sale of the Shares as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or result in a breach or violation of any of the terms and provisions of, constitute a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any of its subsidiaries pursuant to, any agreement, indenture, mortgage, lease or other instrument to which the Company or any of its subsidiaries is a party or by which it or any of its properties or assets may be bound nor will such action result in any violation of the Company’s or any of its subsidiaries’ charter, bylaws or other organizational documents, or any order, law, statute, rule, regulation, judgment, order, writ or decree of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Company or any of its subsidiaries or any of their respective assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its subsidiaries.
Appears in 1 contract
Representations and Warranties by the Company. The Company represents and warrants to the Sales Manager to, and agrees with, each holder of Registrable Securities that:
(a) each registration statement, as supplemented or amended, covering Registrable Securities at its effective date and each prospectus (including any preliminary prospectus) as of the date hereof and as of each Representation Date (as defined herein) on which a certificate is required to be delivered pursuant to Section 7(n) such prospectus, or, in the case of this Agreement and as an underwritten offering of Registrable Securities, at the time of each sale of any Shares or any securities pursuant to this Agreement (the “Applicable Time”), and agrees with the Sales Manager, as follows:
(i) The Company meets the requirements for use of Form N-2 closing under the Securities Act and the Securities Act Rules and Regulations. At the time the Registration Statement became effectiveunderwriting agreement related thereto, the Registration Statement complied will conform in all material respects with to the requirements of the Securities Act and the Securities Act Rules and Regulations and did will not include any contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and at all times subsequent to the Prospectus compliedeffective date of such registration statement when a prospectus would be required to be delivered under the Securities Act, other than from such time as the Company has delivered a Suspension Notice to such holder of Registrable Securities pursuant to Section 1(c) until such time as the Company has delivered a notice withdrawing such Suspension Notice to such holder of Registrable Securities, each such registration statement and each prospectus contained therein, as of its datethen amended or supplemented, will conform in all material respects, with respects to the requirements of the Securities Act and the Securities Act Rules and Regulations as of the Applicable Time, did will not contain any an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; the Prospectus, as of the date of the Prospectus Supplement, will comply in all material respects with the requirements of the Securities Act and the Securities Act Rules and Regulations, and the Prospectus, as of the date of the Prospectus Supplement and the Applicable Time, did not and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, therein not misleading; provided, however, that the representations this representation and warranties in this subsection warranty shall not apply to any statements in or omissions from the Registration Statement or Prospectus or any amendments or supplements thereto made in reliance upon and in conformity with information relating to the Sales Manager furnished in writing to the Company in writing by the Sales Manager a holder of Registrable Securities expressly for use in therein;
(b) the Registration Statement or Prospectus, it being understood and agreed that the only such information furnished compliance by the Sales Manager consists Company with all of the following information in the Prospectus Supplement furnished on behalf the Sales Manager: the last paragraph under the caption “Plan provisions of Distribution.” The Shares have been duly registered under the Securities Act pursuant to the Registration Statement. Each of the Registration Statement, any Rule 462(b) Registration Statement and any post-effective amendments thereto has become effective, and no order suspending the effectiveness of the Registration Statement has been issued by the Commission.
(ii) The Registration Statement has become effective; the Commission has not issued, and is not, to the knowledge of the Company, threatening to issue, any stop order under the Securities Act or other order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto, and no proceedings for such purpose have been instituted or are pending or, to the best knowledge of the Company are contemplated or threatened by the Commission.
(iii) The Company has elected to be regulated by the Commission as a business development company under the Investment Company Act of 1940, as amended (the “Investment Company Act”), and has not withdrawn that election, and the Commission has not ordered that such election be withdrawn nor to the best of the Company’s knowledge have proceedings to effectuate such withdrawal been initiated or threatened by the Commission.
(iv) To the Company’s knowledge, PricewaterhouseCoopers LLP, the accounting firm that audited the financial statements of the Company set forth in the Registration Statement and Prospectus, were and are independent registered accounting firms as required by the Securities Act and the Securities Act Rules and Regulations and the rules and regulations of the Public Company Accounting Oversight Board.
(v) The financial statements, together with the related schedules and notes thereto, of the Company set forth in the Registration Statement and the Prospectus fairly present in all material respects the results of operations and financial condition of the Company and its subsidiaries as of the dates indicated and the results of their operations for the respective periods specified, and are prepared in conformity with U.S. generally accepted accounting principles and the selected financial information and data included in the Registration Statement and the Prospectus have been prepared on a basis consistent with that of the books and records of the Company.
(vi) The Company (A) has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland, has full corporate power and authority to conduct its business as described in the Prospectus; (B) has full power and authority to execute and deliver this Agreement and to consummate the consummation of the transactions herein contemplated hereby; and will not (Ci) is duly licensed conflict with or qualified to do business as a foreign corporation and in good standing in each jurisdiction where the Company is required to be qualified or licensed or in good standing, except where the failure to be so qualified or licensed or to be in good standing would not result in a material adverse effect upon the financial condition, business or operations breach of any of the Company and its subsidiaries, taken as a whole (“Material Adverse Effect”).
(vii) The Company is notterms or provisions of, or with the giving of notice or lapse of time or both would not beconstitute a default under, in default or violation with respect to its charter or bylaws or governing documents. The Company is not, or with the giving of notice or lapse of time or both would not be, in default in the performance or observance of any obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease agreement or other agreement or instrument to which the Company or any subsidiary is a party or by which the Company or any subsidiary is bound or to which any of the properties or assets of the Company is subject, or in violation of any statutes, laws, ordinances or governmental rules or regulations or any orders or decrees to which it is subject.
(viii) The Company’s authorized capitalization is as set forth in the Prospectus; the outstanding shares of Common Stock have been duly authorized and validly issued and are fully paid and non-assessable and conform in all material respects to the description thereof in the Prospectus under the heading “Description of Capital Stock;” the Shares have been duly authorized by all requisite corporate action on the part of the Company for the issuance and sale of the Shares to the Sales Manager pursuant to this Agreement and, when the Shares are delivered and paid for pursuant to this Agreement on the Applicable Time, such Shares will have been validly issued and fully paid and non-assessable. The stockholders of the Company have no preemptive rights with respect to the Shares and none of the outstanding shares of capital stock of the Company have been issued in violation of any preemptive rights of any security holder.
(ix) Except as set forth in the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, (A) the Company and its subsidiaries have not incurred any liabilities or obligations, direct or contingent, or entered into any transactions, other than in the ordinary course of business, that are material to the Company and its subsidiaries taken as a whole, (B) there has not been any material change in the capital stock of the Company, or any material adverse change, or, to the Company’s knowledge, any development involving a prospective material adverse change, in the condition (financial or otherwise), business, net worth, property or results of operations of the Company (excluding changes due to investment activities in the ordinary course of business), (C) there has been no dividend or distribution declared or paid in respect of the Company’s capital stock and (D) the Company and its subsidiaries have not incurred any short-term debt or long-term debt that is, in either case, material with respect to the Company and its subsidiaries taken as a whole (excluding debt resulting from a draw down on the Company’s credit facilities).
(x) There is no pending or, to the knowledge of the Company, threatened action, suit or proceeding, legal or governmental, to which the Company or any of its subsidiaries is a party, before or by any court or governmental agency or body, that is required to be described in the Prospectus and is not so described.
(xi) There are no contracts, agreements or understandings of the Company or any of its subsidiaries that are required to be filed as exhibits to the Registration Statement by the Securities Act or by the Securities Act Rules and Regulations that have not been so filed or incorporated by reference therein as permitted by the Securities Act Rules and Regulations.
(xii) This Agreement has been duly authorized, executed and delivered by the Company.
(xiii) The execution, delivery and performance of this Agreement, the issuance and sale of the Shares and the consummation of the transactions contemplated herein and the Prospectus (including the issuance and sale of the Shares and the use of the proceeds from the sale of the Shares as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or result in a breach or violation of any of the terms and provisions of, constitute a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any of its subsidiaries pursuant tosubsidiary is subject, any agreement, indenture, mortgage, lease or other instrument to which the Company or any of its subsidiaries is a party or by which it or any of its properties or assets may be bound nor will such action (ii) result in any violation of the Company’s provisions of the Articles of Incorporation or By-Laws of the Company as currently in effect or any of its subsidiaries’ charter, bylaws or other organizational documents, statute or any order, law, statute, rule, regulation, judgment, order, writ rule or decree regulation of any court or governmental agency or body, domestic or foreign, body having jurisdiction over the Company or any of its subsidiaries subsidiary or any of their respective assetsproperties; and no consent, properties approval, authorization, order, registration or operations. As used herein, a “Repayment Event” means qualification of or with any event such court or condition which gives governmental agency or body is required for the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness consummation by the Company of the transactions contemplated by this Agreement, except the registration under the Securities Act of the Registrable Securities and such consents, approvals, authorizations, registrations or any qualifications as may be required under state securities or blue sky laws in connection with the offering and distribution of its subsidiariesthe Registrable Securities.
Appears in 1 contract
Sources: Registration Rights Agreement (Terra Industries Inc)
Representations and Warranties by the Company. The Company represents and warrants to the Sales Manager Underwriter as of the date hereof and hereof, as of each Representation Date (as defined hereinthe Closing Time referred to in Section 2(c) on which a certificate is required to be delivered pursuant to Section 7(n) of this Agreement hereof, and as of the time Date of each sale of any Shares or any securities pursuant Delivery (if any) referred to this Agreement (the “Applicable Time”)in Section 2(b) hereof, and agrees with the Sales ManagerUnderwriter, as follows:
(i) The Company meets the requirements for use of Form N-2 S-3 under the Securities 1933 Act. Each of the Registration Statement and any Rule 462(b) Registration Statement has become effective under the 1933 Act and no stop order suspending the Securities effectiveness of the Registration Statement or any Rule 462(b) Registration Statement has been issued under the 1933 Act Rules and Regulationsno 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. At the time respective times the Registration Statement or any Rule 462(b) Registration Statement or any post-effective amendments thereto became effective, at the time the Company’s most recent Annual Report on Form 10-K was filed with the Commission and at the Closing Time (and, if any Option Securities are purchased, at the Date of Delivery), the Registration Statement, the 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 1933 Act and the Securities 1933 Act Rules Regulations and Regulations the Trust Indenture Act of 1939, as amended (the “1939 Act”), and the rules and regulations of the Commission under the 1939 Act (the “1939 Act Regulations”) and did not include any and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; , and neither the Prospectus compliednor any amendments or supplements thereto, as at the time the Prospectus or any such amendment or supplement was issued or at the Closing Time (and, if any Option Securities are purchased, at the Date of its dateDelivery), in all material respects, with the requirements of the Securities Act and the Securities Act Rules and Regulations as of the Applicable Time, did not contain included or will include any untrue statement of a material fact or omitted or will omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; the Prospectus, as of the date of the Prospectus Supplement, will comply in all material respects with the requirements of the Securities Act and the Securities Act Rules and Regulations, and the Prospectus, as of the date of the Prospectus Supplement and the Applicable Time, did not and will not contain any untrue statement of a material fact or omit to state a material fact necessary order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the representations and warranties in this subsection paragraph shall not apply to statements in or omissions from the Registration Statement or Prospectus or any amendments or supplements thereto made in reliance upon and in conformity with information relating to the Sales Manager furnished to the Company in writing by the Sales Manager Underwriter expressly for use in the Registration Statement or Prospectus, it being understood and agreed that the only such information furnished by the Sales Manager consists of the following information in the Prospectus Supplement furnished on behalf the Sales Manager: the last paragraph under the caption “Plan of Distribution.” The Shares have been duly registered under the Securities Act pursuant to the Registration Statement. Each of preliminary prospectus and the Registration Statement, any Rule 462(b) Registration Statement and any post-effective amendments thereto has become effective, and no 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 under the 1933 Act, complied when so filed in all material respects with the 1933 Act and the 1933 Act Regulations and, if applicable, each preliminary prospectus and the Prospectus delivered to the Underwriter for use in connection with this offering was identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by the Commission.Regulation S-T.
(ii) The documents filed with the Commission subsequent to December 31, 2003 and incorporated or deemed to be incorporated by reference in the Registration Statement has become effective; and the Prospectus, at the time they were or hereafter are filed with the Commission, complied and will comply in all material respects with the requirements of the 1934 Act and the rules and regulations of the Commission has not issuedthereunder (the “1934 Act Regulations”), and is notand, to when read together with the knowledge of other information in the CompanyProspectus, threatening to issue, at the respective times the Registration Statement or any stop order under the Securities Act or other order suspending the effectiveness of the Rule 462(b) Registration Statement or any post-effective amendment theretoamendments thereto became effective, and no proceedings for such purpose have been instituted or are pending or, to at the best knowledge of time the Company are contemplated or threatened by Company’s most recent Annual Report on Form 10-K was filed with the Commission, at the time the Prospectus was issued and at the Closing Time (and if any Option Securities are purchased, at the Date of Delivery), 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.
(iii) The Company has elected to be regulated by the Commission as a business development company under the Investment Company Act of 1940, as amended (the “Investment Company Act”), and has not withdrawn that election, and the Commission has not ordered that such election be withdrawn nor to the best of the Company’s knowledge have proceedings to effectuate such withdrawal been initiated or threatened by the Commission.
(iv) To the Company’s knowledge, PricewaterhouseCoopers LLP, the accounting firm that audited the financial statements of the Company set forth in the Registration Statement and Prospectus, were and are independent registered accounting firms as required by the Securities Act and the Securities Act Rules and Regulations and the rules and regulations of the Public Company Accounting Oversight Board.
(v) The financial statements, together with the related schedules and notes thereto, of the Company set forth in the Registration Statement and the Prospectus fairly present in all material respects the results of operations and financial condition of the Company and its subsidiaries as of the dates indicated and the results of their operations for the respective periods specified, and are prepared in conformity with U.S. generally accepted accounting principles and the selected financial information and data included in the Registration Statement and the Prospectus have been prepared on a basis consistent with that of the books and records of the Company.
(vi) The Company (A) has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of MarylandDelaware, has full corporate power and authority to conduct its business as described in the Prospectus; (B) has full power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby; and (C) is duly licensed or qualified to do business and is in good standing as a foreign corporation and in good standing in each jurisdiction where in which its ownership or lease of property or the Company is required to be qualified or licensed or in good standing, conduct of its businesses requires such qualification (except for where the failure to be so qualified or licensed or to be in good standing would not result in have a material adverse effect upon on the affairs, management, business, properties, financial condition, business results of operations or operations prospects of the Company and its subsidiariessubsidiaries considered as one enterprise, taken as whether or not arising in the ordinary course of business (a whole (“Material Adverse Effect”)), and has all power and authority necessary to own or hold its properties and to conduct the businesses in which it is engaged, as described in the Prospectus.
(viiiv) The Company is not, or with the giving of notice or lapse of time or both would not be, in default or violation with respect to its charter or bylaws or governing documents. The Company is not, or with the giving of notice or lapse of time or both would not be, in default in the performance or observance of any obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which the Company is a party or by which the Company is bound or to which any of the properties or assets Each subsidiary of the Company has been duly incorporated and is subjectvalidly existing as a corporation in good standing under the laws of its jurisdiction of incorporation, is duly qualified to do business and is in good standing as a foreign corporation in each jurisdiction in which its ownership or lease of property or the conduct of its businesses requires such qualification (except for where the failure to be so qualified would not have a Material Adverse Effect) and has all power and authority necessary to own or hold its properties and to conduct the businesses in violation of any statutes, laws, ordinances or governmental rules or regulations or any orders or decrees to which it is subject.
(viii) The Company’s authorized capitalization is engaged, as set forth described in the Prospectus; except as otherwise disclosed in the Prospectus, all of the issued and outstanding shares capital stock of Common Stock have each subsidiary of the Company has been duly authorized and validly issued and are issued, is fully paid and non-assessable and conform is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity; and none of the outstanding shares of capital stock of any such subsidiary was issued in all material respects to violation of the description thereof preemptive or similar rights of any securityholder of such subsidiary.
(v) The authorized, issued and outstanding capital stock of the Company, as of December 31, 2003, is as set forth in the Company’s audited consolidated balance sheet as of December 31, 2003 incorporated by reference into the Prospectus under from its Annual Report on Form 10-K for the heading “Description of Capital Stock;” the Shares have been duly authorized by year ended December 31, 2003 and all requisite corporate action on the part of the Company for the issuance and sale of the Shares to the Sales Manager pursuant to this Agreement and, when the Shares are delivered and paid for pursuant to this Agreement on the Applicable Time, such Shares will have been validly issued and fully paid and non-assessable. The stockholders outstanding shares of capital stock of the Company have no preemptive rights with respect to the Shares been duly and validly authorized and issued and are fully paid and nonassessable; none of the outstanding shares of capital stock of the Company have been was issued in violation of any the preemptive or other similar rights of any security holder.
(ix) Except as securityholder of the Company; the Common Stock and the other capital stock of the Company conform to the descriptions thereof contained in the Prospectus and the Registration Statement and such descriptions conform to the rights set forth in the Prospectus, subsequent instruments defining the same; the Securities have been duly and validly authorized for issuance and sale to the respective dates as of which information is given in the Registration Statement and the ProspectusUnderwriter pursuant to this Agreement and, (A) the Company and its subsidiaries have not incurred any liabilities or obligations, direct or contingent, or entered into any transactions, other than in the ordinary course of business, that are material to the Company and its subsidiaries taken as a whole, (B) there has not been any material change in the capital stock of the Company, or any material adverse change, or, to the Company’s knowledge, any development involving a prospective material adverse change, in the condition (financial or otherwise), business, net worth, property or results of operations of the Company (excluding changes due to investment activities in the ordinary course of business), (C) there has been no dividend or distribution declared or paid in respect of the Company’s capital stock and (D) the Company and its subsidiaries have not incurred any short-term debt or long-term debt that is, in either case, material with respect to the Company and its subsidiaries taken as a whole (excluding debt resulting from a draw down on the Company’s credit facilities).
(x) There is no pending or, to the knowledge of the Company, threatened action, suit or proceeding, legal or governmental, to which the Company or any of its subsidiaries is a party, before or by any court or governmental agency or body, that is required to be described in the Prospectus and is not so described.
(xi) There are no contracts, agreements or understandings of the Company or any of its subsidiaries that are required to be filed as exhibits to the Registration Statement by the Securities Act or by the Securities Act Rules and Regulations that have not been so filed or incorporated by reference therein as permitted by the Securities Act Rules and Regulations.
(xii) This Agreement has been duly authorized, executed when issued and delivered by the Company pursuant to this Agreement against payment of the consideration set forth herein, will be validly issued, fully paid and non-assessable; and the issuance of the Securities is not and will not be subject to the preemptive or other similar rights of any securityholder of the Company.
(xiiivi) The execution, delivery and performance of this Agreement, Agreement by the Company and the issuance and sale of the Shares Securities and the consummation of the transactions contemplated herein hereby and the Prospectus (including the issuance and sale of the Shares and the use of the proceeds from the sale of the Shares as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder do not and Supplement will not, whether with or without the giving of notice or passage of time or both, conflict with or result in a breach or violation of any of the terms and provisions of, constitute a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any of its subsidiaries pursuant to, any agreement, indenture, mortgage, lease or other instrument to which the Company or any of its subsidiaries is a party or by which it or any of its properties or assets may be bound nor will such action result in any violation of the Company’s or any of its subsidiaries’ charter, bylaws or other organizational documents, or any order, law, statute, rule, regulation, judgment, order, writ or decree of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Company or any of its subsidiaries or any of their respective assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its subsidiaries.
Appears in 1 contract
Representations and Warranties by the Company. The Company represents and warrants to the Sales Manager Representative, as of the date hereof and as of each Representation Date (as defined herein) on which a certificate is required to be delivered pursuant to Section 7(n) of this Agreement and hereof, as of the time of each sale acceptance by the Company of any Shares or any securities pursuant to this Agreement an offer for the purchase of Underwritten Securities (the “each such time being an "Applicable Time”" and to each Underwriter named in the applicable Terms Agreement, as of the date thereof, the relevant Applicable Time and as of the relevant Closing Time (as defined below) (in each case, a "Representation Date"), and agrees with the Sales Manager, as follows:
(i1) Registration Statement, Prospectus and Disclosure at Time of Sale. The Company meets Original Registration Statement and any post-effective amendments thereto have been declared effective by the requirements for use Commission. No stop order suspending the effectiveness of Form N-2 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 Securities Act Rules knowledge of the Company, are contemplated by the Commission, and Regulationsany request on the part of the Commission for additional information has been complied with. In addition, each relevant Trust Agreement in effect as of each Representation Date has been duly qualified under the 1939 Act. At the time respective times the Original Registration Statement and each amendment thereto became effective, at each deemed effective date pursuant to Rule 430B(f)(2) of the 1933 Act Regulations and at each Representation Date, the Registration Statement complied and will comply in all material respects with the requirements of the Securities 1933 Act and the Securities 1933 Act Rules and Regulations Regulations, and did not include any 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; . At the date of the Prospectus complied, as of its date, in all material respects, with and at the requirements of Closing Time the Securities Act Prospectus and the Securities Act Rules any amendments and Regulations as of the Applicable Time, supplements thereto did not contain any and will not 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 Prospectus, as . The representations and warranties in this subsection shall not apply to that part of the date Registration Statement that constitutes the Statement of Eligibility on Form T-1 (the "Form T-1") under the 1939 Act of the Prospectus Supplement, will comply relevant Trustee. Each preliminary prospectus complied when filed with the Commission in all material respects with the requirements of the Securities 1933 Act Regulations and each preliminary prospectus and the Prospectus delivered to the Underwriters for use in connection with the offering of Underwritten Securities Act Rules and Regulationswill, and at the Prospectustime of such delivery, as be identical to any electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T. As of the date of the Prospectus Supplement and the an Applicable Time, did not neither (x) the Issuer General Use Free Writing Prospectus(es) (as defined below) issued at or prior to the Applicable Time (as defined below) and will not contain the Statutory Prospectus (as defined below), all considered together (collectively, the "General Disclosure Package"), nor (y) any individual Issuer Limited Use Free Writing Prospectus, when considered together with the General Disclosure Package, included any untrue statement of a material fact or omit omitted 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; provided, however, that the representations and warranties . As used in this subsection shall not apply to statements and elsewhere in or omissions from the Registration Statement or Prospectus or any amendments or supplements thereto made in reliance upon and in conformity with information relating to the Sales Manager furnished to the Company in writing by the Sales Manager expressly for use in the Registration Statement or Prospectus, it being understood and agreed that the only such information furnished by the Sales Manager consists of the following information in the Prospectus Supplement furnished on behalf the Sales Manager: the last paragraph under the caption “Plan of Distribution.” The Shares have been duly registered under the Securities Act pursuant to the Registration Statement. Each of the Registration Statement, any Rule 462(b) Registration Statement and any post-effective amendments thereto has become effective, and no order suspending the effectiveness of the Registration Statement has been issued by the Commission.
(ii) The Registration Statement has become effective; the Commission has not issued, and is not, to the knowledge of the Company, threatening to issue, any stop order under the Securities Act or other order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto, and no proceedings for such purpose have been instituted or are pending or, to the best knowledge of the Company are contemplated or threatened by the Commission.
(iii) The Company has elected to be regulated by the Commission as a business development company under the Investment Company Act of 1940, as amended (the “Investment Company Act”), and has not withdrawn that election, and the Commission has not ordered that such election be withdrawn nor to the best of the Company’s knowledge have proceedings to effectuate such withdrawal been initiated or threatened by the Commission.
(iv) To the Company’s knowledge, PricewaterhouseCoopers LLP, the accounting firm that audited the financial statements of the Company set forth in the Registration Statement and Prospectus, were and are independent registered accounting firms as required by the Securities Act and the Securities Act Rules and Regulations and the rules and regulations of the Public Company Accounting Oversight Board.
(v) The financial statements, together with the related schedules and notes thereto, of the Company set forth in the Registration Statement and the Prospectus fairly present in all material respects the results of operations and financial condition of the Company and its subsidiaries as of the dates indicated and the results of their operations for the respective periods specified, and are prepared in conformity with U.S. generally accepted accounting principles and the selected financial information and data included in the Registration Statement and the Prospectus have been prepared on a basis consistent with that of the books and records of the Company.
(vi) The Company (A) has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland, has full corporate power and authority to conduct its business as described in the Prospectus; (B) has full power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby; and (C) is duly licensed or qualified to do business as a foreign corporation and in good standing in each jurisdiction where the Company is required to be qualified or licensed or in good standing, except where the failure to be so qualified or licensed or to be in good standing would not result in a material adverse effect upon the financial condition, business or operations of the Company and its subsidiaries, taken as a whole (“Material Adverse Effect”).
(vii) The Company is not, or with the giving of notice or lapse of time or both would not be, in default or violation with respect to its charter or bylaws or governing documents. The Company is not, or with the giving of notice or lapse of time or both would not be, in default in the performance or observance of any obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which the Company is a party or by which the Company is bound or to which any of the properties or assets of the Company is subject, or in violation of any statutes, laws, ordinances or governmental rules or regulations or any orders or decrees to which it is subject.
(viii) The Company’s authorized capitalization is as set forth in the Prospectus; the outstanding shares of Common Stock have been duly authorized and validly issued and are fully paid and non-assessable and conform in all material respects to the description thereof in the Prospectus under the heading “Description of Capital Stock;” the Shares have been duly authorized by all requisite corporate action on the part of the Company for the issuance and sale of the Shares to the Sales Manager pursuant to this Agreement and, when the Shares are delivered and paid for pursuant to this Agreement on the Applicable Time, such Shares will have been validly issued and fully paid and non-assessable. The stockholders of the Company have no preemptive rights with respect to the Shares and none of the outstanding shares of capital stock of the Company have been issued in violation of any preemptive rights of any security holder.
(ix) Except as set forth in the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, (A) the Company and its subsidiaries have not incurred any liabilities or obligations, direct or contingent, or entered into any transactions, other than in the ordinary course of business, that are material to the Company and its subsidiaries taken as a whole, (B) there has not been any material change in the capital stock of the Company, or any material adverse change, or, to the Company’s knowledge, any development involving a prospective material adverse change, in the condition (financial or otherwise), business, net worth, property or results of operations of the Company (excluding changes due to investment activities in the ordinary course of business), (C) there has been no dividend or distribution declared or paid in respect of the Company’s capital stock and (D) the Company and its subsidiaries have not incurred any short-term debt or long-term debt that is, in either case, material with respect to the Company and its subsidiaries taken as a whole (excluding debt resulting from a draw down on the Company’s credit facilities).
(x) There is no pending or, to the knowledge of the Company, threatened action, suit or proceeding, legal or governmental, to which the Company or any of its subsidiaries is a party, before or by any court or governmental agency or body, that is required to be described in the Prospectus and is not so described.
(xi) There are no contracts, agreements or understandings of the Company or any of its subsidiaries that are required to be filed as exhibits to the Registration Statement by the Securities Act or by the Securities Act Rules and Regulations that have not been so filed or incorporated by reference therein as permitted by the Securities Act Rules and Regulations.
(xii) This Agreement has been duly authorized, executed and delivered by the Company.
(xiii) The execution, delivery and performance of this Agreement, the issuance and sale of the Shares and the consummation of the transactions contemplated herein and the Prospectus (including the issuance and sale of the Shares and the use of the proceeds from the sale of the Shares as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or result in a breach or violation of any of the terms and provisions of, constitute a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any of its subsidiaries pursuant to, any agreement, indenture, mortgage, lease or other instrument to which the Company or any of its subsidiaries is a party or by which it or any of its properties or assets may be bound nor will such action result in any violation of the Company’s or any of its subsidiaries’ charter, bylaws or other organizational documents, or any order, law, statute, rule, regulation, judgment, order, writ or decree of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Company or any of its subsidiaries or any of their respective assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its subsidiaries.:
Appears in 1 contract
Sources: Underwriting Agreement (Merrill Lynch Depositor Inc)
Representations and Warranties by the Company. The Company represents and warrants to the Sales Manager as of the date hereof and as of each Representation Date (as defined herein) on which a certificate is required to be delivered pursuant to Section 7(n) of this Agreement and as of the time of each sale of any Shares or any securities pursuant to this Agreement (the “Applicable Time”), and agrees with the Sales Manager, as follows:
(i) The Company meets the requirements for use of Form N-2 under the Securities Act and the Securities Act Rules and Regulations. At the time the Registration Statement became effective, the Registration Statement complied in all material respects with the requirements of the Securities Act and the Securities Act Rules and Regulations and did not include 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 Prospectus complied, as of its date, in all material respects, with the requirements of the Securities Act and the Securities Act Rules and Regulations as of the Applicable Time, did not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; the Prospectus, as of the date of the Prospectus Supplement, will comply in all material respects with the requirements of the Securities Act and the Securities Act Rules and Regulations, and the Prospectus, as of the date of the Prospectus Supplement and the Applicable Time, did not and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the representations and warranties in this subsection shall not apply to statements in or omissions from the Registration Statement or Prospectus or any amendments or supplements thereto made in reliance upon and in conformity with information relating to the Sales Manager furnished to the Company in writing by the Sales Manager expressly for use in the Registration Statement or Prospectus, it being understood and agreed that the only such information furnished by the Sales Manager consists of the following information in the Prospectus Supplement furnished on behalf the Sales Manager: the first sentence of the last paragraph under the caption “Plan of Distribution.” The Shares have been duly registered under the Securities Act pursuant to the Registration Statement. Each of the Registration Statement, any Rule 462(b) Registration Statement and any post-effective amendments thereto has become effective, and no order suspending the effectiveness of the Registration Statement has been issued by the Commission.
(ii) The Registration Statement has become effective; the Commission has not issued, and is not, to the knowledge of the Company, threatening to issue, any stop order under the Securities Act or other order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto, and no proceedings for such purpose have been instituted or are pending or, to the best knowledge of the Company are contemplated or threatened by the Commission.
(iii) The Company has elected to be regulated by the Commission as a business development company under the Investment Company Act of 1940, as amended (the “Investment Company Act”), and has not withdrawn that election, and the Commission has not ordered that such election be withdrawn nor to the best of the Company’s knowledge have proceedings to effectuate such withdrawal been initiated or threatened by the Commission.
(iv) To the Company’s knowledge, PricewaterhouseCoopers LLP, the accounting firm that audited the financial statements of the Company set forth in the Registration Statement and Prospectus, were and are independent registered accounting firms as required by the Securities Act and the Securities Act Rules and Regulations and the rules and regulations of the Public Company Accounting Oversight Board.
(v) The financial statements, together with the related schedules and notes thereto, of the Company set forth in the Registration Statement and the Prospectus fairly present in all material respects the results of operations and financial condition of the Company and its subsidiaries as of the dates indicated and the results of their operations for the respective periods specified, and are prepared in conformity with U.S. generally accepted accounting principles and the selected financial information and data included in the Registration Statement and the Prospectus have been prepared on a basis consistent with that of the books and records of the Company.
(vi) The Company (A) has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland, has full corporate power and authority to conduct its business as described in the Prospectus; (B) has full power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby; and (C) is duly licensed or qualified to do business as a foreign corporation and in good standing in each jurisdiction where the Company is required to be qualified or licensed or in good standing, except where the failure to be so qualified or licensed or to be in good standing would not result in a material adverse effect upon the financial condition, business or operations of the Company and its subsidiaries, taken as a whole (“Material Adverse Effect”).
(vii) The Company is not, or with the giving of notice or lapse of time or both would not be, in default or violation with respect to its charter or bylaws or governing documents. The Company is not, or with the giving of notice or lapse of time or both would not be, in default in the performance or observance of any obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which the Company is a party or by which the Company is bound or to which any of the properties or assets of the Company is subject, or in violation of any statutes, laws, ordinances or governmental rules or regulations or any orders or decrees to which it is subject.
(viii) The Company’s authorized capitalization is as set forth in the Prospectus; the outstanding shares of Common Stock have been duly authorized and validly issued and are fully paid and non-assessable and conform in all material respects to the description thereof in the Prospectus under the heading “Description of Capital Stock;” the Shares have been duly authorized by all requisite corporate action on the part of the Company for the issuance and sale of the Shares to the Sales Manager pursuant to this Agreement and, when the Shares are delivered and paid for pursuant to this Agreement on the Applicable Time, such Shares will have been validly issued and fully paid and non-assessable. The stockholders of the Company have no preemptive rights with respect to the Shares and none of the outstanding shares of capital stock of the Company have been issued in violation of any preemptive rights of any security holder.
(ix) Except as set forth in the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, (A) the Company and its subsidiaries have not incurred any liabilities or obligations, direct or contingent, or entered into any transactions, other than in the ordinary course of business, that are material to the Company and its subsidiaries taken as a whole, (B) there has not been any material change in the capital stock of the Company, or any material adverse change, or, to the Company’s knowledge, any development involving a prospective material adverse change, in the condition (financial or otherwise), business, net worth, property or results of operations of the Company (excluding changes due to investment activities in the ordinary course of business), (C) there has been no dividend or distribution declared or paid in respect of the Company’s capital stock and (D) the Company and its subsidiaries have not incurred any short-term debt or long-term debt that is, in either case, material with respect to the Company and its subsidiaries taken as a whole (excluding debt resulting from a draw down on the Company’s credit facilities).
(x) There is no pending or, to the knowledge of the Company, threatened action, suit or proceeding, legal or governmental, to which the Company or any of its subsidiaries is a party, before or by any court or governmental agency or body, that is required to be described in the Prospectus and is not so described.
(xi) There Notwithstanding this Agreement, the [Name of Other Sales Manager] Agreement or the [Name of Other Sales Manager] Agreement, there are no contracts, agreements or understandings of the Company or any of its subsidiaries that are required to be filed as exhibits to the Registration Statement by the Securities Act or by the Securities Act Rules and Regulations that have not been so filed or incorporated by reference therein as permitted by the Securities Act Rules and Regulations.
(xii) This Agreement has been duly authorized, executed and delivered by the Company.
(xiii) The execution, delivery and performance of this Agreement, the issuance and sale of the Shares and the consummation of the transactions contemplated herein and the Prospectus (including the issuance and sale of the Shares and the use of the proceeds from the sale of the Shares as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or result in a breach or violation of any of the terms and provisions of, constitute a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any of its subsidiaries pursuant to, any agreement, indenture, mortgage, lease or other instrument to which the Company or any of its subsidiaries is a party or by which it or any of its properties or assets may be bound nor will such action result in any violation of the Company’s or any of its subsidiaries’ charter, bylaws or other organizational documents, or any order, law, statute, rule, regulation, judgment, order, writ or decree of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Company or any of its subsidiaries or any of their respective assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its subsidiaries.
Appears in 1 contract
Sources: Equity Distribution Agreement (Hercules Capital, Inc.)
Representations and Warranties by the Company. The Company represents and warrants to the Sales Manager each Underwriter as of the date hereof, as of the Closing Time referred to in Section 2(c) hereof and as of each Representation Date of Delivery (as defined hereinif any) on which a certificate is required referred to be delivered pursuant to in Section 7(n2(b) of this Agreement and as of the time of each sale of any Shares or any securities pursuant to this Agreement (the “Applicable Time”)hereof, and agrees with the Sales Managereach Underwriter, as follows:
(i) The Company meets the requirements for use of Form N-2 under the Securities Act and the Securities Act Rules and Regulations. At the time respective times the Registration Statement, any Rule 462(b) Registration Statement and any post- effective amendments thereto became effective, and at the Closing Time (and, if any Option Securities are purchased, at the Date of Delivery), the Registration Statement, the 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 1933 Act and the Securities 1933 Act Rules and Regulations and did not include and will not (taking into account any applicable prospectus supplement) 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; . Neither the Prospectus compliednor any amendments or supplements thereto, as at the time the Prospectus or any such amendment or supplement was issued and at the Closing Time (and, if any Option Securities are purchased, at the Date of its dateDelivery), in all material respects, with the requirements of the Securities Act and the Securities Act Rules and Regulations as of the Applicable Time, did not contain any included or will 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 Prospectus, as of the date of the Prospectus Supplement, will comply in all material respects with the requirements of the Securities Act and the Securities Act Rules and Regulations, and the Prospectus, as of the date of the Prospectus Supplement and the Applicable Time, did not and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the . The representations and warranties in this subsection shall not apply to statements in or omissions from the Registration Statement or Prospectus or any amendments or supplements thereto made in reliance upon and in conformity with information relating to contained in the Sales Manager last paragraph of the cover page of the Prospectus, the last paragraph on the inside cover page of the Prospectus and the second paragraph under the heading "Underwriting" in the Prospectus and furnished to the Company in writing by the Sales Manager expressly any Underwriter through Merr▇▇▇ ▇▇▇c▇ ▇▇▇ressly for use in the Registration Statement or Prospectus, it being understood and agreed that the only such information furnished by the Sales Manager consists of the following information in the . The Prospectus Supplement furnished on behalf the Sales Manager: the last paragraph under the caption “Plan of Distribution.” The Shares have been duly registered under the Securities Act pursuant to the Registration Statement. Each of the Registration Statement, any Rule 462(b) Registration Statement and any post-effective amendments thereto has become effective, and no order suspending the effectiveness filed as part of the Registration Statement has been issued by the Commission.
(ii) The Registration Statement has become effective; the Commission has not issued, and is not, to the knowledge as originally filed or as part of the Company, threatening to issue, any stop order under the Securities Act or other order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto, and no proceedings for such purpose have been instituted or are pending or, filed pursuant to the best knowledge of the Company are contemplated or threatened by the Commission.
(iii) The Company has elected to be regulated by the Commission as a business development company Rule 424 under the Investment Company Act of 19401933 Act, as amended (the “Investment Company Act”), and has not withdrawn that election, and the Commission has not ordered that such election be withdrawn nor to the best of the Company’s knowledge have proceedings to effectuate such withdrawal been initiated or threatened by the Commission.
(iv) To the Company’s knowledge, PricewaterhouseCoopers LLP, the accounting firm that audited the financial statements of the Company set forth in the Registration Statement and Prospectus, were and are independent registered accounting firms as required by the Securities Act and the Securities Act Rules and Regulations and the rules and regulations of the Public Company Accounting Oversight Board.
(v) The financial statements, together with the related schedules and notes thereto, of the Company set forth in the Registration Statement and the Prospectus fairly present complied when so filed in all material respects with the results of operations and financial condition of the Company and its subsidiaries as of the dates indicated and the results of their operations for the respective periods specified1933 Act Regulations and, and are prepared in conformity with U.S. generally accepted accounting principles and the selected financial information and data included in the Registration Statement and if applicable, the Prospectus have been prepared on a basis consistent delivered to the Underwriters for use in connection with that of this offering was identical to the books and records of the Company.
(vi) The Company (A) has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland, has full corporate power and authority to conduct its business as described in the Prospectus; (B) has full power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby; and (C) is duly licensed or qualified to do business as a foreign corporation and in good standing in each jurisdiction where the Company is required to be qualified or licensed or in good standing, except where the failure to be so qualified or licensed or to be in good standing would not result in a material adverse effect upon the financial condition, business or operations of the Company and its subsidiaries, taken as a whole (“Material Adverse Effect”).
(vii) The Company is not, or electronically transmitted copies thereof filed with the giving of notice or lapse of time or both would not be, in default or violation with respect to its charter or bylaws or governing documents. The Company is not, or with the giving of notice or lapse of time or both would not be, in default in the performance or observance of any obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which the Company is a party or by which the Company is bound or to which any of the properties or assets of the Company is subject, or in violation of any statutes, laws, ordinances or governmental rules or regulations or any orders or decrees to which it is subject.
(viii) The Company’s authorized capitalization is as set forth in the Prospectus; the outstanding shares of Common Stock have been duly authorized and validly issued and are fully paid and non-assessable and conform in all material respects to the description thereof in the Prospectus under the heading “Description of Capital Stock;” the Shares have been duly authorized by all requisite corporate action on the part of the Company for the issuance and sale of the Shares to the Sales Manager pursuant to this Agreement and, when the Shares are delivered and paid for pursuant to this Agreement on the Applicable Time, such Shares will have been validly issued and fully paid and non-assessable. The stockholders of the Company have no preemptive rights with respect to the Shares and none of the outstanding shares of capital stock of the Company have been issued in violation of any preemptive rights of any security holder.
(ix) Except as set forth in the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, (A) the Company and its subsidiaries have not incurred any liabilities or obligations, direct or contingent, or entered into any transactions, other than in the ordinary course of business, that are material to the Company and its subsidiaries taken as a whole, (B) there has not been any material change in the capital stock of the Company, or any material adverse change, or, to the Company’s knowledge, any development involving a prospective material adverse change, in the condition (financial or otherwise), business, net worth, property or results of operations of the Company (excluding changes due to investment activities in the ordinary course of business), (C) there has been no dividend or distribution declared or paid in respect of the Company’s capital stock and (D) the Company and its subsidiaries have not incurred any short-term debt or long-term debt that is, in either case, material with respect to the Company and its subsidiaries taken as a whole (excluding debt resulting from a draw down on the Company’s credit facilities).
(x) There is no pending or, to the knowledge of the Company, threatened action, suit or proceeding, legal or governmental, to which the Company or any of its subsidiaries is a party, before or by any court or governmental agency or body, that is required to be described in the Prospectus and is not so described.
(xi) There are no contracts, agreements or understandings of the Company or any of its subsidiaries that are required to be filed as exhibits to the Registration Statement by the Securities Act or by the Securities Act Rules and Regulations that have not been so filed or incorporated by reference therein as permitted by the Securities Act Rules and Regulations.
(xii) This Agreement has been duly authorized, executed and delivered by the Company.
(xiii) The execution, delivery and performance of this Agreement, the issuance and sale of the Shares and the consummation of the transactions contemplated herein and the Prospectus (including the issuance and sale of the Shares and the use of the proceeds from the sale of the Shares as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or result in a breach or violation of any of the terms and provisions of, constitute a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any of its subsidiaries Commission pursuant to, any agreement, indenture, mortgage, lease or other instrument to which the Company or any of its subsidiaries is a party or by which it or any of its properties or assets may be bound nor will such action result in any violation of the Company’s or any of its subsidiaries’ charter, bylaws or other organizational documents, or any order, law, statute, rule, regulation, judgment, order, writ or decree of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Company or any of its subsidiaries or any of their respective assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its subsidiaries.
Appears in 1 contract
Sources: Purchase Agreement (Price Reit Inc)
Representations and Warranties by the Company. The Company represents and warrants to the Sales Manager each Underwriter as of the date hereof and as of each Representation Date (as defined herein) on which a certificate is required to be delivered pursuant to Section 7(n) of this Agreement and hereof, as of the time of each sale of any Shares or any securities pursuant Closing Time referred to this Agreement (the “Applicable Time”)in Section 2(b) hereof, and agrees with the Sales Managereach Underwriter, as follows:
(i) The Company meets Each of the requirements for use of Form N-2 Registration Statement and any Rule 462(b) Registration Statement has become effective under the Securities 1933 Act and no stop order suspending the Securities effectiveness of the Registration Statement or any Rule 462(b) Registration Statement has been issued under the 1933 Act Rules and Regulationsno 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. At the time respective times the Registration Statement, any Rule 462(b) Registration Statement and any post-effective amendments thereto became effectiveeffective and at the Closing Time, the Registration Statement, the 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 1933 Act and the Securities 1933 Act Rules and Regulations and did not include any and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; , and the Prospectus compliedProspectus, as any preliminary prospectus and any supplement thereto or prospectus wrapper prepared in connection therewith, at their respective times of its dateissuance and at the Closing Time, complied and will comply in all material respectsrespects with any applicable laws or regulations of foreign jurisdictions in which the Prospectus and such preliminary prospectus, as amended or supplemented, if applicable, are distributed in connection with the requirements offer and sale of Reserved Securities. Neither the Securities Act Prospectus nor any amendments or supplements thereto (including any prospectus wrapper), at the time the Prospectus or any such amendment or supplement was issued and at the Securities Act Rules and Regulations as of the Applicable Closing Time, did not contain any 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; . If Rule 434 is used, the Prospectus, as of the date of the Prospectus Supplement, Company will comply in all material respects with the requirements of the Securities Act Rule 434 and the Securities Act Rules and RegulationsProspectus shall not be "materially different," as such term is used in Rule 434, and from the Prospectus, as of the date of the Prospectus Supplement and the Applicable Time, did not and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, prospectus included in the light of Registration Statement at the circumstances under which they were made, not misleading; provided, however, that the time it became effective. The representations and warranties in this subsection shall not apply to statements in or omissions from the Registration Statement or Prospectus or any amendments or supplements thereto made in reliance upon and in conformity with information relating to the Sales Manager furnished to the Company in writing by the Sales Manager any Underwriter through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use in the Registration Statement or Prospectus, it being understood and agreed that the only such information furnished by the Sales Manager consists of the following information in the Prospectus Supplement furnished on behalf the Sales Manager: the last paragraph under the caption “Plan of Distribution.” The Shares have been duly registered under the Securities Act pursuant to the Registration Statement. Each of the Registration Statement, any Rule 462(b) Registration Statement and any post-effective amendments thereto has become effective, and no order suspending the effectiveness of the Registration Statement has been issued by the Commission.
(ii) The Registration Statement has become effective; Each preliminary prospectus and the Commission has not issued, and is not, to the knowledge of the Company, threatening to issue, any stop order under the Securities Act or other order suspending the effectiveness prospectus filed as part of the Registration Statement as originally filed or as part of any post-effective amendment thereto, or filed pursuant to Rule 424 under the 1933 Act, complied when so filed in all material respects with the 1933 Act Regulations, and no proceedings for such purpose have been instituted or are pending or, each preliminary prospectus and the Prospectus delivered to the best knowledge of Underwriters for use in connection with the Company are contemplated or threatened Offering were identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by the Commission.Regulation S-T.
(iii) The Company No action has elected to be regulated been taken and no local, state or Federal law, statute, ordinance, rules, regulation, requirement, judgment or court decree has been enacted, adopted or issued by any governmental agency that prevents the Commission as a business development company under the Investment Company Act of 1940, as amended (the “Investment Company Act”), and has not withdrawn that election, and the Commission has not ordered that such election be withdrawn nor to the best issuance of the Company’s knowledge have proceedings Securities or prevents or suspends the use of the Prospectus; no judgment, restraining order or order of any nature by a Federal or state court of competent jurisdiction has been issued that prevents the issuance of the Securities or prevents or suspends the sale of the Units in any jurisdiction referred to effectuate such withdrawal in Section 3(f) hereof; and every request of any securities authority or agency of any jurisdiction for additional information has been initiated or threatened by the Commissioncomplied with in all material respects.
(iv) To the Company’s knowledge, PricewaterhouseCoopers LLP, the accounting firm that audited the financial statements of the Company set forth in the Registration Statement and Prospectus, were and There are independent registered accounting firms as required by the Securities Act and the Securities Act Rules and Regulations and the rules and regulations of the Public Company Accounting Oversight Board.
(v) The financial statements, together with the related schedules and notes thereto, of the Company set forth in the Registration Statement and the Prospectus fairly present in all material respects the results of operations and financial condition of the Company and its subsidiaries as of the dates indicated and the results of their operations for the respective periods specified, and are prepared in conformity with U.S. generally accepted accounting principles and the selected financial information and data included in the Registration Statement and the Prospectus have been prepared on a basis consistent with that of the books and records of the Company.
(vi) The Company (A) has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland, has full corporate power and authority to conduct its business as described in the Prospectus; (B) has full power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby; and (C) is duly licensed or qualified to do business as a foreign corporation and in good standing in each jurisdiction where the Company is required to be qualified or licensed or in good standing, except where the failure to be so qualified or licensed or to be in good standing would not result in a material adverse effect upon the financial condition, business or operations of the Company and its subsidiaries, taken as a whole (“Material Adverse Effect”).
(vii) The Company is not, or with the giving of notice or lapse of time or both would not be, in default or violation with respect to its charter or bylaws or governing documents. The Company is not, or with the giving of notice or lapse of time or both would not be, in default in the performance or observance of any obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease no contracts or other agreement or instrument to which the Company is a party or by which the Company is bound or to which any of the properties or assets of the Company is subject, or in violation of any statutes, laws, ordinances or governmental rules or regulations or any orders or decrees to which it is subject.
(viii) The Company’s authorized capitalization is as set forth in the Prospectus; the outstanding shares of Common Stock have been duly authorized and validly issued and are fully paid and non-assessable and conform in all material respects to the description thereof in the Prospectus under the heading “Description of Capital Stock;” the Shares have been duly authorized by all requisite corporate action on the part of the Company for the issuance and sale of the Shares to the Sales Manager pursuant to this Agreement and, when the Shares are delivered and paid for pursuant to this Agreement on the Applicable Time, such Shares will have been validly issued and fully paid and non-assessable. The stockholders of the Company have no preemptive rights with respect to the Shares and none of the outstanding shares of capital stock of the Company have been issued in violation of any preemptive rights of any security holder.
(ix) Except as set forth in the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, (A) the Company and its subsidiaries have not incurred any liabilities or obligations, direct or contingent, or entered into any transactions, other than in the ordinary course of business, that are material to the Company and its subsidiaries taken as a whole, (B) there has not been any material change in the capital stock of the Company, or any material adverse change, or, to the Company’s knowledge, any development involving a prospective material adverse change, in the condition (financial or otherwise), business, net worth, property or results of operations of the Company (excluding changes due to investment activities in the ordinary course of business), (C) there has been no dividend or distribution declared or paid in respect of the Company’s capital stock and (D) the Company and its subsidiaries have not incurred any short-term debt or long-term debt that is, in either case, material with respect to the Company and its subsidiaries taken as a whole (excluding debt resulting from a draw down on the Company’s credit facilities).
(x) There is no pending or, to the knowledge of the Company, threatened action, suit or proceeding, legal or governmental, to which the Company or any of its subsidiaries is a party, before or by any court or governmental agency or body, that is documents required to be described in the Prospectus and is not so described.
(xi) There are no contracts, agreements Registration Statement or understandings of the Company or any of its subsidiaries that are required to be filed as exhibits to the Registration Statement by the Securities 1933 Act or by the Securities 1933 Act Rules and Regulations that which have not been described or filed as required. The contracts so filed described in the Prospectus are accurate and complete in all material respects, and all such contracts described as being in full force and effect on the date hereof are in full force and effect on the date hereof. Neither the Company nor any of its subsidiaries or, to the best of the Company's knowledge, any other party is in breach of or incorporated by reference therein as permitted by the Securities Act Rules and Regulationsdefault under any such contract.
(xiiv) This Agreement Each of the Company and ART Licensing has been duly authorizedformed as a corporation and is validly existing in good standing under the laws of its jurisdiction of incorporation and has all requisite corporate power and authority to own, executed lease and delivered by the Company.
(xiii) The execution, delivery operate its properties and performance of this Agreement, the issuance and sale of the Shares and the consummation of the transactions contemplated herein and the Prospectus (including the issuance and sale of the Shares and the use of the proceeds from the sale of the Shares to conduct its business as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or result in a breach or violation of any of the terms and provisions of, constitute a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any properties or assets Prospectus. Each of the Company or any and ART Licensing is duly qualified to do business and is in good standing as a foreign corporation in each jurisdiction in which the nature of its subsidiaries pursuant tobusiness or its ownership or leasing of property requires such qualification, any agreementexcept where the failure to be so qualified would not have, indentureeither individually or in the aggregate, mortgagea material adverse effect on the assets, lease properties, business, management, earnings, net worth, results of operations, condition (financial or other instrument to which otherwise) or business prospects of the Company or any of and its subsidiaries is subsidiaries, taken as a party or by which it or any of its properties or assets may be bound nor will such action result whole. No proceeding has been instituted in any violation of the Company’s such jurisdiction, revoking, limiting or any of its subsidiaries’ charter, bylaws or other organizational documentscurtailing, or any orderseeking to revoke, lawlimit or curtail, statute, rule, regulation, judgment, order, writ such power and authority or decree of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Company or any of its subsidiaries or any of their respective assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its subsidiariesqualification.
Appears in 1 contract
Representations and Warranties by the Company. The Company represents and warrants to, and agrees with, each Shareholder that:
(a) each registration statement covering Registrable Securities and each prospectus (including any preliminary prospectus) and any further amendments of supplements to any such registration statement or in the Sales Manager as case of the date hereof and as an underwritten offering of each Representation Date (as defined herein) on which a certificate is required to be delivered pursuant to Section 7(n) of this Agreement and as of Registrable Securities, at the time of each sale of any Shares or any securities pursuant to this Agreement (the “Applicable Time”), and agrees with the Sales Manager, as follows:
(i) The Company meets the requirements for use of Form N-2 closing under the Securities Act and the Securities Act Rules and Regulations. At the time the Registration Statement became effectiveunderwriting agreement relating thereto, the Registration Statement complied will conform in all material respects with to the requirements of the Securities Act and the Securities Act Rules and Regulations and did will not include any contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and at all times subsequent to the Prospectus compliedeffective date of such registration statement when a prospectus would be required to be delivered under the Securities Act, other than from such time as the Company has delivered a Suspension Notice to the Shareholders and the Purchasers pursuant to clause (B) of Section 1(c)(i) until such time as the Company has delivered a Suspension Withdrawal to the Shareholders and the Purchasers, each such registration statement and each prospectus contained therein, as of its datethen amended or supplemented, will conform in all material respects, with respects to the requirements of the Securities Act and the Securities Act Rules and Regulations as of the Applicable Time, did will not contain any an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; the Prospectus, as of the date of the Prospectus Supplement, will comply in all material respects with the requirements of the Securities Act and the Securities Act Rules and Regulations, and the Prospectus, as of the date of the Prospectus Supplement and the Applicable Time, did not and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, therein not misleading; provided, however, that the representations this representation and warranties in this subsection warranty shall not apply to any statements in or omissions from the Registration Statement or Prospectus or any amendments or supplements thereto made in reliance upon and in conformity with information relating to the Sales Manager furnished in writing to the Company in writing by a Purchaser or the Sales Manager Shareholders expressly for use therein;
(b) any documents incorporated by reference in any prospectus referred to in Section 3, when they become or became effective or are or were filed with the Registration Statement Commission, as the case may be, as then amended or Prospectussupplemented, it being understood and agreed that the only such information furnished by the Sales Manager consists of the following information will conform or conformed in the Prospectus Supplement furnished on behalf the Sales Manager: the last paragraph under the caption “Plan of Distribution.” The Shares have been duly registered under the Securities Act pursuant all material respects to the Registration Statement. Each requirements of the Registration Statement, any Rule 462(b) Registration Statement and any post-effective amendments thereto has become effective, and no order suspending the effectiveness of the Registration Statement has been issued by the Commission.
(ii) The Registration Statement has become effective; the Commission has not issued, and is not, to the knowledge of the Company, threatening to issue, any stop order under the Securities Act or other order suspending the effectiveness United States Securities Exchange Act of the Registration Statement or any post-effective amendment thereto1934, as amended, as applicable, and no proceedings for none of such purpose have been instituted documents will contain an untrue statement of a material fact or are pending or, will omit to the best knowledge of the Company are contemplated or threatened by the Commission.
(iii) The Company has elected state a material fact required to be regulated by stated therein or necessary to make the Commission as a business development company under the Investment Company Act of 1940statements therein not misleading; provided, as amended (the “Investment Company Act”)however, that this representation and has warranty shall not withdrawn that election, apply to any statements or omissions made in reliance upon and the Commission has not ordered that such election be withdrawn nor to the best of the Company’s knowledge have proceedings to effectuate such withdrawal been initiated or threatened by the Commission.
(iv) To the Company’s knowledge, PricewaterhouseCoopers LLP, the accounting firm that audited the financial statements of the Company set forth in the Registration Statement and Prospectus, were and are independent registered accounting firms as required by the Securities Act and the Securities Act Rules and Regulations and the rules and regulations of the Public Company Accounting Oversight Board.
(v) The financial statements, together with the related schedules and notes thereto, of the Company set forth in the Registration Statement and the Prospectus fairly present in all material respects the results of operations and financial condition of the Company and its subsidiaries as of the dates indicated and the results of their operations for the respective periods specified, and are prepared in conformity with U.S. generally accepted accounting principles and information furnished in writing to the selected financial information and data included in Company by a Purchaser or the Registration Statement and Shareholders expressly for use therein;
(c) the Prospectus have been prepared on a basis consistent compliance by the Company with that all of the books and records provisions of the Company.
(vi) The Company (A) has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland, has full corporate power and authority to conduct its business as described in the Prospectus; (B) has full power and authority to execute and deliver this Agreement and to consummate the consummation of the transactions herein contemplated hereby; and will not (Ci) is duly licensed conflict with or qualified to do business as a foreign corporation and in good standing in each jurisdiction where the Company is required to be qualified or licensed or in good standing, except where the failure to be so qualified or licensed or to be in good standing would not result in a material adverse effect upon the financial condition, business or operations breach of any of the Company and its subsidiaries, taken as a whole (“Material Adverse Effect”).
(vii) The Company is notterms or provisions of, or with the giving of notice or lapse of time or both would not beconstitute a default under, in default or violation with respect to its charter or bylaws or governing documents. The Company is not, or with the giving of notice or lapse of time or both would not be, in default in the performance or observance of any obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease agreement or other agreement or instrument to which the Company or any subsidiary is a party or by which the Company or any subsidiary is bound or to which any of the properties or assets of the Company is subject, or in violation of any statutes, laws, ordinances or governmental rules or regulations or any orders or decrees to which it is subject.
(viii) The Company’s authorized capitalization is as set forth in the Prospectus; the outstanding shares of Common Stock have been duly authorized and validly issued and are fully paid and non-assessable and conform in all material respects to the description thereof in the Prospectus under the heading “Description of Capital Stock;” the Shares have been duly authorized by all requisite corporate action on the part of the Company for the issuance and sale of the Shares to the Sales Manager pursuant to this Agreement and, when the Shares are delivered and paid for pursuant to this Agreement on the Applicable Time, such Shares will have been validly issued and fully paid and non-assessable. The stockholders of the Company have no preemptive rights with respect to the Shares and none of the outstanding shares of capital stock of the Company have been issued in violation of any preemptive rights of any security holder.
(ix) Except as set forth in the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, (A) the Company and its subsidiaries have not incurred any liabilities or obligations, direct or contingent, or entered into any transactions, other than in the ordinary course of business, that are material to the Company and its subsidiaries taken as a whole, (B) there has not been any material change in the capital stock of the Company, or any material adverse change, or, to the Company’s knowledge, any development involving a prospective material adverse change, in the condition (financial or otherwise), business, net worth, property or results of operations of the Company (excluding changes due to investment activities in the ordinary course of business), (C) there has been no dividend or distribution declared or paid in respect of the Company’s capital stock and (D) the Company and its subsidiaries have not incurred any short-term debt or long-term debt that is, in either case, material with respect to the Company and its subsidiaries taken as a whole (excluding debt resulting from a draw down on the Company’s credit facilities).
(x) There is no pending or, to the knowledge of the Company, threatened action, suit or proceeding, legal or governmental, to which the Company or any of its subsidiaries is a party, before or by any court or governmental agency or body, that is required to be described in the Prospectus and is not so described.
(xi) There are no contracts, agreements or understandings of the Company or any of its subsidiaries that are required to be filed as exhibits to the Registration Statement by the Securities Act or by the Securities Act Rules and Regulations that have not been so filed or incorporated by reference therein as permitted by the Securities Act Rules and Regulations.
(xii) This Agreement has been duly authorized, executed and delivered by the Company.
(xiii) The execution, delivery and performance of this Agreement, the issuance and sale of the Shares and the consummation of the transactions contemplated herein and the Prospectus (including the issuance and sale of the Shares and the use of the proceeds from the sale of the Shares as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or result in a breach or violation of any of the terms and provisions of, constitute a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any of its subsidiaries pursuant tosubsidiary is subject, any agreement, indenture, mortgage, lease or other instrument to which the Company or any of its subsidiaries is a party or by which it or any of its properties or assets may be bound nor will such action (ii) result in any violation of the Company’s provisions of the Articles of Incorporation or By-Laws of the Company as currently in effect or any of its subsidiaries’ charter, bylaws or other organizational documents, statute or any order, law, statute, rule, regulation, judgment, order, writ rule or decree regulation of any court or governmental agency or body, domestic or foreign, body having jurisdiction over the Company or any of its subsidiaries subsidiary or any of their respective assetsproperties; and no consent, properties approval, authorization, order, registration or operations. As used herein, a “Repayment Event” means qualification of or with any event such court or condition which gives governmental agency or body is required for the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness consummation by the Company of the transactions contemplated by this Agreement, except the registration under the Securities Act of the Registrable Securities and such consents, approvals, authorizations, registrations or any qualifications as may be required under State Securities or blue sky laws in connection with the offering and distribution of its subsidiariesthe Registrable Securities.
Appears in 1 contract
Sources: Registration Rights Agreement (Terra Industries Inc)
Representations and Warranties by the Company. The Company hereby represents and warrants to the Sales Manager Underwriters as of the date hereof, as of the Initial Sale Time (as defined below), as of the Closing Date referred to in Section 3(c) hereof and as of each Representation Option Closing Date (as defined hereinif any) on which a certificate is required referred to be delivered pursuant to in Section 7(n3(b) of this Agreement and as of the time of each sale of any Shares or any securities pursuant to this Agreement (the “Applicable Time”)hereof, and agrees with the Sales ManagerUnderwriters, as follows:
(i1) The Company meets the requirements for use of Form N-2 S-3 under the Securities Act. The Registration Statement and any post-effective amendments thereto have become effective under the Securities Act. 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 Rules have been instituted or are pending or, to the knowledge of the Company, are contemplated by the Commission, and Regulations. any request on the part of the Commission for additional information has been complied with.
(2) At the time respective times the Registration Statement and any post-effective amendments thereto became or become effective, at each deemed effective date of the Registration Statement with respect to the Underwriters pursuant to Rule 430B(f)(2) of the Securities Act and at the Closing Date (and, if any Option Securities are purchased, at the applicable Option Closing Date), the Registration Statement complied and will comply in all material respects with the requirements of the Securities Act and the Securities Act Rules and Regulations and did not include any 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; .
(3) The Prospectus and any amendments or supplements thereto, at the time the Prospectus compliedor any such amendment or supplement was issued and at the Closing Date (and, as of its dateif any Option Securities are purchased, at the applicable Option Closing Date), complied and will comply in all material respects, respects with the requirements of the Securities Act and the Securities Act Rules and Regulations as of the Applicable Time, did not contain any and will not 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 Prospectus, .
(4) Each preliminary prospectus (including any prospectus or prospectuses filed as part of the date of Registration Statement at the Prospectus Supplementtime it originally became effective or any amendment thereto), will comply 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 Securities Act was identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(5) As of the Initial Sale Time, neither (x) the Issuer General Use Free Writing Prospectus(es) (as defined below) issued at or prior to the Initial Sale Time (as defined below), each preliminary prospectus issued at or prior to the Initial Sale Time and the Securities Act Rules and Regulationsinformation included on Schedule III hereto all considered together (collectively, and the Prospectus“ Disclosure Package”), nor (y) any individual Issuer Limited Use Free Writing Prospectus (as of defined below), when considered together with the date of the Prospectus Supplement and the Applicable TimeDisclosure Package, did not and will not contain included any untrue statement of a material fact or omit omitted 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; provided, however, that the representations and warranties . As used in this subsection shall not apply to statements and elsewhere in or omissions from the Registration Statement or Prospectus or any amendments or supplements thereto made in reliance upon and in conformity with information relating to the Sales Manager furnished to the Company in writing by the Sales Manager expressly for use in the Registration Statement or Prospectus, it being understood and agreed that the only such information furnished by the Sales Manager consists of the following information in the Prospectus Supplement furnished on behalf the Sales Manager: the last paragraph under the caption “Plan of Distribution.” The Shares have been duly registered under the Securities Act pursuant to the Registration Statement. Each of the Registration Statement, any Rule 462(b) Registration Statement and any post-effective amendments thereto has become effective, and no order suspending the effectiveness of the Registration Statement has been issued by the Commission.
(ii) The Registration Statement has become effective; the Commission has not issued, and is not, to the knowledge of the Company, threatening to issue, any stop order under the Securities Act or other order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto, and no proceedings for such purpose have been instituted or are pending or, to the best knowledge of the Company are contemplated or threatened by the Commission.
(iii) The Company has elected to be regulated by the Commission as a business development company under the Investment Company Act of 1940, as amended (the “Investment Company Act”), and has not withdrawn that election, and the Commission has not ordered that such election be withdrawn nor to the best of the Company’s knowledge have proceedings to effectuate such withdrawal been initiated or threatened by the Commission.
(iv) To the Company’s knowledge, PricewaterhouseCoopers LLP, the accounting firm that audited the financial statements of the Company set forth in the Registration Statement and Prospectus, were and are independent registered accounting firms as required by the Securities Act and the Securities Act Rules and Regulations and the rules and regulations of the Public Company Accounting Oversight Board.
(v) The financial statements, together with the related schedules and notes thereto, of the Company set forth in the Registration Statement and the Prospectus fairly present in all material respects the results of operations and financial condition of the Company and its subsidiaries as of the dates indicated and the results of their operations for the respective periods specified, and are prepared in conformity with U.S. generally accepted accounting principles and the selected financial information and data included in the Registration Statement and the Prospectus have been prepared on a basis consistent with that of the books and records of the Company.
(vi) The Company (A) has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland, has full corporate power and authority to conduct its business as described in the Prospectus; (B) has full power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby; and (C) is duly licensed or qualified to do business as a foreign corporation and in good standing in each jurisdiction where the Company is required to be qualified or licensed or in good standing, except where the failure to be so qualified or licensed or to be in good standing would not result in a material adverse effect upon the financial condition, business or operations of the Company and its subsidiaries, taken as a whole (“Material Adverse Effect”).
(vii) The Company is not, or with the giving of notice or lapse of time or both would not be, in default or violation with respect to its charter or bylaws or governing documents. The Company is not, or with the giving of notice or lapse of time or both would not be, in default in the performance or observance of any obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which the Company is a party or by which the Company is bound or to which any of the properties or assets of the Company is subject, or in violation of any statutes, laws, ordinances or governmental rules or regulations or any orders or decrees to which it is subject.
(viii) The Company’s authorized capitalization is as set forth in the Prospectus; the outstanding shares of Common Stock have been duly authorized and validly issued and are fully paid and non-assessable and conform in all material respects to the description thereof in the Prospectus under the heading “Description of Capital Stock;” the Shares have been duly authorized by all requisite corporate action on the part of the Company for the issuance and sale of the Shares to the Sales Manager pursuant to this Agreement and, when the Shares are delivered and paid for pursuant to this Agreement on the Applicable Time, such Shares will have been validly issued and fully paid and non-assessable. The stockholders of the Company have no preemptive rights with respect to the Shares and none of the outstanding shares of capital stock of the Company have been issued in violation of any preemptive rights of any security holder.
(ix) Except as set forth in the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, (A) the Company and its subsidiaries have not incurred any liabilities or obligations, direct or contingent, or entered into any transactions, other than in the ordinary course of business, that are material to the Company and its subsidiaries taken as a whole, (B) there has not been any material change in the capital stock of the Company, or any material adverse change, or, to the Company’s knowledge, any development involving a prospective material adverse change, in the condition (financial or otherwise), business, net worth, property or results of operations of the Company (excluding changes due to investment activities in the ordinary course of business), (C) there has been no dividend or distribution declared or paid in respect of the Company’s capital stock and (D) the Company and its subsidiaries have not incurred any short-term debt or long-term debt that is, in either case, material with respect to the Company and its subsidiaries taken as a whole (excluding debt resulting from a draw down on the Company’s credit facilities).
(x) There is no pending or, to the knowledge of the Company, threatened action, suit or proceeding, legal or governmental, to which the Company or any of its subsidiaries is a party, before or by any court or governmental agency or body, that is required to be described in the Prospectus and is not so described.
(xi) There are no contracts, agreements or understandings of the Company or any of its subsidiaries that are required to be filed as exhibits to the Registration Statement by the Securities Act or by the Securities Act Rules and Regulations that have not been so filed or incorporated by reference therein as permitted by the Securities Act Rules and Regulations.
(xii) This Agreement has been duly authorized, executed and delivered by the Company.
(xiii) The execution, delivery and performance of this Agreement, the issuance and sale of the Shares and the consummation of the transactions contemplated herein and the Prospectus (including the issuance and sale of the Shares and the use of the proceeds from the sale of the Shares as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or result in a breach or violation of any of the terms and provisions of, constitute a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any of its subsidiaries pursuant to, any agreement, indenture, mortgage, lease or other instrument to which the Company or any of its subsidiaries is a party or by which it or any of its properties or assets may be bound nor will such action result in any violation of the Company’s or any of its subsidiaries’ charter, bylaws or other organizational documents, or any order, law, statute, rule, regulation, judgment, order, writ or decree of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Company or any of its subsidiaries or any of their respective assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its subsidiaries.:
Appears in 1 contract
Representations and Warranties by the Company. The Company represents and warrants to the Sales Manager Placement Agent as of the date hereof and as of each Representation Date (as defined herein) on which a certificate is required to be delivered pursuant to Section 7(n) of this Agreement hereof, and as of the time of each sale of any Shares or any securities pursuant Closing Time referred to this Agreement (the “Applicable Time”)in Section 2(b) hereof, and agrees with the Sales ManagerPlacement Agent, as follows:
(i) The Registration Statement has been prepared by the Company meets in conformity with the requirements for use of Form N-2 under the Securities 1933 Act and the Securities 1933 Act Rules Regulations and has been filed with the Commission under the 1933 Act. The Registration Statement has been declared effective by the Commission.
(ii) At the time the Registration Statement became effective, and at each time thereafter at which an Annual Report on Form 10-K was filed by the Company with the Commission, the Registration Statement and the Prospectus conformed, and as of the Closing Time (as defined in Section 2(b) of this Agreement) will conform, in all material respects to the requirements of the 1933 Act and the 1933 Act Regulations. At the time the Registration Statement became effectiveeffective and at each time thereafter at which an Annual Report on Form 10-K was filed by the Company with the Commission, the Registration Statement complied in all material respects with the requirements did not, and as of the Securities Act and the Securities Act Rules and Regulations and did not include any Closing Time, 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 Prospectus complied. The Prospectus, as of its datethe date hereof does not, in all material respects, with the requirements of the Securities Act and the Securities Act Rules and Regulations as of the Applicable TimeClosing Time will not, did not contain any include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; the Prospectus, as of the date of the Prospectus Supplement, will comply in all material respects with the requirements of the Securities Act and the Securities Act Rules and Regulations, and the Prospectus, as of the date of the Prospectus Supplement and the Applicable Time, did not and will not contain any untrue statement of a material fact or omit to state a material fact necessary order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the foregoing representations and warranties in this subsection shall not apply to statements information contained in or omissions omitted from the Registration Statement or the Prospectus or any amendments or supplements thereto made in reliance upon upon, and in conformity with with, written information relating to the Sales Manager furnished to the Company in writing by the Sales Manager expressly directly or through ▇▇▇▇▇▇▇ ▇▇▇▇▇, specifically for use in the Registration Statement or Prospectus, it being understood and agreed that the only such information furnished by the Sales Manager consists of the following information in the Prospectus Supplement furnished on behalf the Sales Manager: the last paragraph under the caption “Plan of Distribution.” The Shares have been duly registered under the Securities Act pursuant to the Registration Statement. Each of the Registration Statement, any Rule 462(b) Registration Statement and any post-effective amendments thereto has become effective, and no order suspending the effectiveness of the Registration Statement has been issued by the Commission.
(ii) The Registration Statement has become effective; the Commission has not issued, and is not, to the knowledge of the Company, threatening to issue, any stop order under the Securities Act or other order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto, and no proceedings for such purpose have been instituted or are pending or, to the best knowledge of the Company are contemplated or threatened by the Commissionpreparation thereof.
(iii) The Company has elected documents incorporated or deemed to be regulated incorporated by reference in the Commission as a business development company Prospectus pursuant to Item 12 of Form S-3 under the Investment Company Act of 19401933 Act, as amended (at the “Investment Company Act”)time they were or hereafter are filed with the Commission, complied and has not withdrawn that election, and will comply in all material respects with the Commission has not ordered that such election be withdrawn nor to the best requirements of the Company’s knowledge have proceedings to effectuate such withdrawal been initiated or threatened by the Commission.
(iv) To the Company’s knowledge1934 Act, PricewaterhouseCoopers LLP, the accounting firm that audited the financial statements of the Company set forth in the Registration Statement and Prospectus, were and are independent registered accounting firms as required by the Securities Act and the Securities Act Rules and Regulations and the rules and regulations of the Public Company Accounting Oversight Board.
Commission under the 1934 Act (v) The financial statementsthe "1934 Act Regulations"), and, when read together with the related schedules and notes thereto, of the Company set forth in the Registration Statement and the Prospectus fairly present in all material respects the results of operations and financial condition of the Company and its subsidiaries as of the dates indicated and the results of their operations for the respective periods specified, and are prepared in conformity with U.S. generally accepted accounting principles and the selected financial other information and data included in the Registration Statement and the Prospectus have been prepared on a basis consistent with that of the books and records of the Company.
(vi) The Company (A) has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland, has full corporate power and authority to conduct its business as described in the Prospectus; (B) has full power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby; and (C) is duly licensed or qualified to do business as a foreign corporation and in good standing in each jurisdiction where the Company is required to be qualified or licensed or in good standing, except where the failure to be so qualified or licensed or to be in good standing would not result in a material adverse effect upon the financial condition, business or operations of the Company and its subsidiaries, taken as a whole (“Material Adverse Effect”).
(vii) The Company is not, or with the giving of notice or lapse of time or both would not be, in default or violation with respect to its charter or bylaws or governing documents. The Company is not, or with the giving of notice or lapse of time or both would not be, in default in the performance or observance of any obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which the Company is a party or by which the Company is bound or to which any of the properties or assets of the Company is subject, or in violation of any statutes, laws, ordinances or governmental rules or regulations or any orders or decrees to which it is subject.
(viii) The Company’s authorized capitalization is as set forth in the Prospectus; the outstanding shares of Common Stock have been duly authorized and validly issued and are fully paid and non-assessable and conform in all material respects to the description thereof in the Prospectus under the heading “Description of Capital Stock;” the Shares have been duly authorized by all requisite corporate action on the part of the Company for the issuance and sale of the Shares to the Sales Manager pursuant to this Agreement and, when the Shares are delivered and paid for pursuant to this Agreement on the Applicable Time, such Shares will have been validly issued and fully paid and non-assessable. The stockholders of the Company have no preemptive rights with respect to the Shares and none of the outstanding shares of capital stock of the Company have been issued in violation of any preemptive rights of any security holder.
(ix) Except as set forth in the Prospectus, subsequent at the time the Registration Statement became effective and as of the Closing Time, did not and will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(iv) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, except as otherwise stated therein, (A) there has not occurred any material adverse change or any development that is reasonably likely to involve a material adverse change in the condition, financial or otherwise, or in the earnings, business or business prospects of the Company and its subsidiaries have not incurred any liabilities or obligations, direct or contingent, or entered into any transactions, other than Subsidiaries considered as one enterprise from that set forth in the ordinary course Prospectus (exclusive of business, that are material any amendments or supplements thereto subsequent to the Company and its subsidiaries taken as a wholedate of this Agreement), (B) there has not have been any material change in the capital stock of the Company, or any material adverse change, or, to the Company’s knowledge, any development involving a prospective material adverse change, in the condition (financial or otherwise), business, net worth, property or results of operations of no transactions entered into by the Company (excluding changes due to investment activities in the ordinary course of business), (C) there has been no dividend or distribution declared or paid in respect of the Company’s capital stock and (D) the Company and its subsidiaries have not incurred any short-term debt or long-term debt that is, in either case, Subsidiaries which are material with respect to the Company and its subsidiaries taken Subsidiaries considered as a whole one enterprise other than those in the ordinary course of business and (excluding debt resulting from a draw down C) except for regular quarterly distributions on the Company’s credit facilities)'s common shares, and regular distributions declared, paid or made in accordance with the terms of any class or series of the Company's preferred shares, there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock.
(v) The consolidated financial statements and supporting schedules of the Company included in, or incorporated by reference into, the Registration Statement and the Prospectus present fairly the financial position of the Company and its consolidated Subsidiaries as of the dates indicated and the results of their operations for the periods specified; except as otherwise stated in the Registration Statement and the Prospectus, said financial statements have been prepared in conformity with generally accepted accounting principles applied on a consistent basis; and the supporting schedules included or incorporated by reference in the Registration Statement and the Prospectus present fairly in all material respects the information required to be stated therein.
(vi) PricewaterhouseCoopers LLP, who have expressed their opinion on the audited financial statements and related schedules included in, or incorporated by reference into, the Registration Statement, are independent public accountants within the meaning of the 1933 Act and the applicable 1933 Act Regulations.
(vii) The Company has been duly organized and is validly existing and in good standing as a corporation under the laws of the State of Ohio, with power and authority (corporate and other) to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus; the Company is in possession of and operating in compliance with all material franchises, grants, authorizations, licenses, permits, easements, consents, certificates and orders required for the conduct of its business, all of which are valid and in full force and effect; and the Company is duly qualified to do business and in good standing as a foreign corporation in all other jurisdictions where its ownership or leasing of properties or the conduct of its business requires such qualification, except where failure to qualify and be in good standing would not have a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its Subsidiaries considered as one enterprise.
(viii) Each Significant Subsidiary, as defined in Rule 405 of the 1933 Act, has been duly incorporated or formed and is validly existing as a corporation, partnership or limited liability company in good standing or in full force and effect under the laws of the jurisdiction of its incorporation or formation, has corporate, partnership or limited liability company power and authority to own, lease and operate its properties and to conduct its business and is duly qualified as a foreign corporation, partnership or limited liability company to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify would not have a material adverse effect on the condition, financial or otherwise, or the earnings, business affairs or business prospects of the Company and its Subsidiaries considered as one enterprise.
(ix) If applicable, the capitalization of the Company is as set forth in the Prospectus under "Capitalization;" the issued and outstanding capital stock of the Company has been duly authorized and validly issued and is fully paid and non-assessable and is not subject to preemptive or other similar rights; and all of the issued and outstanding capital stock of the Company's Subsidiaries has been duly authorized and validly issued, is fully paid and non-assessable and is owned directly by the Company, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity.
(x) The Securities to be purchased by the Fund from the Company have been duly authorized by the Company and such Securities have been duly authorized by the Company for issuance and sale and, when issued and delivered against payment of the consideration set forth in the Purchase Agreement between the Company and the Fund dated the date hereof (the "Purchase Agreement"), will be validly issued, fully paid and non-assessable. The Common Shares being sold pursuant to the Purchase Agreement conform in all material respects to all statements relating thereto contained in the Prospectus; and the issuance of the Common Shares is not subject to preemptive or other similar rights.
(xi) There is no pending or, to the knowledge of the Company, threatened action, suit or proceeding, legal or governmental, to which the Company or any of its subsidiaries is a party, proceeding before or by any court or governmental agency or body, that domestic or foreign, now pending, or, to the knowledge of the Company, threatened against or affecting the Company or its Subsidiaries, which is required to be described disclosed in the Prospectus (other than as disclosed therein), or which might result in any material adverse change in the condition, financial or otherwise, business affairs or business prospects of the Company and is not so described.
(xi) There are no contractsits Subsidiaries considered as one enterprise, agreements or understandings might materially and adversely affect the properties or assets thereof or which might materially and adversely affect the consummation of this Agreement, or the transactions contemplated herein; all pending legal or governmental proceedings to which the Company or any of its subsidiaries that Subsidiaries is a party or of which any of their respective property is the subject which are not described in the Prospectus, including routine litigation incidental to the business, are, considered in the aggregate, not material; and there are no material contracts or documents of the Company or its Subsidiaries which are required to be filed as exhibits to the Registration Statement by the Securities 1933 Act or by the Securities 1933 Act Rules and Regulations that which have not been so filed or incorporated by reference therein as permitted by the Securities Act Rules and Regulationsfiled.
(xii) This Agreement has been duly authorizedNeither the Company nor any of its Subsidiaries is in violation of its respective Articles of Incorporation or other organizational document, executed or its Code of Regulations or bylaws, as the case may be (the "Code of Regulations"), or in default in the performance or observance of any material obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which it is a party or by which it or its properties may be bound, where such defaults in the aggregate would have a material adverse effect on the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and delivered by its Subsidiaries considered as one enterprise; and the Company.
(xiii) The execution, execution and delivery and performance of this Agreement, the issuance and sale of the Shares and the consummation of the transactions contemplated herein and the Prospectus (including the issuance and sale of the Shares and the use of the proceeds from the sale of the Shares as described in the Prospectus under the caption “Use of Proceeds”) have been duly authorized by all necessary corporate action, and compliance by the Company with its obligations hereunder do will not and will not, whether with or without the giving of notice or passage of time or both, conflict with or result in constitute a breach or violation of any of the terms and provisions of, constitute a or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any properties property or assets of the Company or any of its subsidiaries Subsidiaries pursuant to, any agreementcontract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company or any of its subsidiaries Subsidiaries is a party or by which it may be bound or to which any of the property or assets of the Company or any of its properties or assets may be bound Subsidiaries is subject, nor will such action result in any violation of the Company’s provisions of the Articles of Incorporation or any Code of Regulations or, to the best of its subsidiaries’ charterknowledge, bylaws or other organizational documents, or any order, law, statuteadministrative regulation or administrative or court order or decree; and no consent, ruleapproval, regulation, judgment, order, writ authorization or decree order of any court or governmental authority or agency is required for the consummation by the Company of the transactions contemplated by this Agreement, except such as has been obtained or bodyas may be required under the 1933 Act, domestic the 1934 Act, state securities or foreignBlue Sky laws or real estate syndication laws in connection with the distribution of the Securities as contemplated in this Agreement.
(xiii) The Company has full right, having jurisdiction over power and authority to enter into this Agreement, and this Agreement, as of the Closing Time, will have been duly authorized, executed and delivered by the Company.
(xiv) With respect to its taxable year ended December 31, 1993, and its taxable years ending thereafter, the Company has operated and will continue to operate so as to qualify as a real estate investment trust ("REIT"), the Company qualified as a REIT for its taxable years ended December 31, 1993, 1994, 1995, 1996, 1997, 1998, 1999, 2000 and 2001 and the Company intends to make a timely election to be taxed as a REIT with respect to its current taxable year.
(xv) Neither the Company nor any of its Subsidiaries is required to be registered as an investment company under the Investment Company Act of 1940, as amended (the "1940 Act").
(xvi) Neither the Company nor any of its Subsidiaries is required to own or possess any trademarks, service marks, trade names or copyrights in order to conduct the business now operated by them.
(xvii) There are no persons with registration or other similar rights to have any securities registered pursuant to the Registration Statement.
(xviii) None of the Company or any of its subsidiaries Subsidiaries or any of their respective assetsthe officers, directors, trustees or partners thereof has taken nor will any of them take, directly or indirectly, any action resulting in a violation of Regulation M under the 1934 Act or designed to cause or result in, or which has constituted or which reasonably might be expected to constitute, the stabilization or manipulation of the price of the Securities.
(xix) The Securities will be approved for listing on the New York Stock Exchange ("NYSE") as of the Closing Time.
(xx) (A) The Company or its Subsidiaries have good and marketable title or leasehold interest, as the case may be, to the portfolio properties or operations. As used herein, a “Repayment Event” means any event or condition which gives (the holder of any note, debenture or other evidence of indebtedness "Portfolio Properties") described in the Prospectus (or any person acting on such holder’s behalfdocuments incorporated by reference therein) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness as being owned by the Company or its Subsidiaries (except with respect to properties described in the Prospectus or documents incorporated by reference therein) as being held by the Company through joint ventures, in each case free and clear of all liens, encumbrances, claims, security interests and defects (collectively, the "Defects"), except such as do not materially adversely affect the value of such property or interests and do not materially interfere with the use made and proposed to be made of such property or interests by the Company or such Subsidiaries, as the case may be; (B) the joint venture interest in each property described in the Prospectus (or documents incorporated by reference therein), as being held by the Company through a joint venture, is owned free and clear of all Defects except for such Defects that will not have a material adverse effect on the business, earnings or business prospects of the Company and its Subsidiaries considered as one enterprise; (C) all liens, charges, encumbrances, claims, or restrictions on or affecting the properties and assets of the Company or its Subsidiaries which are required to be disclosed in the Prospectus are disclosed therein; (D) none of the Company, its Subsidiaries or, to the best of the Company's knowledge, any lessee of any of the Portfolio Properties is in default under any of the leases governing the Portfolio Properties and the Company does not know of any event which, but for the passage of time or the giving of notice, or both, would constitute a default under any of such leases, except such defaults that would not have a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its subsidiaries.Subsidiaries considered as one enterprise; (E) no tenant under any of the leases pursuant to which the Company or its Subsidiaries leases any of the Portfolio Properties has an option or right of first refusal to purchase the premises demised under such lease except for (i) Kmart Corporation, (ii) the tenants at the Portfolio Property located in Solon, Ohio, (iii) as otherwise described in the Prospectus (or documents incorporated by reference therein), and (iv) such other options or rights of first refusal that, if exercised, would not have a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its Subsidiaries considered as one enterprise; (F) each of the Portfolio Properties complies with all applicable codes and zoning laws and regulations, except for such failures to comply which would not individually
Appears in 1 contract
Sources: Placement Agency Agreement (Developers Diversified Realty Corp)
Representations and Warranties by the Company. The Company hereby represents and warrants to the Sales Manager Underwriters as of the date hereof, as of the Initial Sale Time (as defined below), as of the Closing Date referred to in Section 3(c) hereof and as of each Representation Option Closing Date (as defined hereinif any) on which a certificate is required referred to be delivered pursuant to in Section 7(n3(b) of this Agreement and as of the time of each sale of any Shares or any securities pursuant to this Agreement (the “Applicable Time”)hereof, and agrees with the Sales ManagerUnderwriters, as follows:
(i1) The Company meets the requirements for use of Form N-2 S-3 under the Securities Act. The Registration Statement and any post-effective amendments thereto have become effective under the Securities Act. No stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Company, are contemplated by the Commission, and any request on the part of the Commission for additional information has been complied with.
(2) At the respective times the Registration Statement and any post-effective amendments thereto became or become effective, at each deemed effective date of the Registration Statement with respect to the Underwriters pursuant to Rule 430B(f)(2) of the Securities Act Rules and Regulations. At at the time Closing Date (and, if any Option Securities are purchased, at the Registration Statement became effectiveapplicable Option Closing Date), the Registration Statement complied and will comply in all material respects with the requirements of the Securities Act and the Securities Act Rules and Regulations and did not include any 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; .
(3) The Prospectus and any amendments or supplements thereto, at the time the Prospectus compliedor any such amendment or supplement was issued and at the Closing Date (and, as of its dateif any Option Securities are purchased, at the applicable Option Closing Date), complied and will comply in all material respects, respects with the requirements of the Securities Act and the Securities Act Rules and Regulations as of the Applicable Time, did not contain any and will not 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 Prospectus, .
(4) Each preliminary prospectus (including any prospectus or prospectuses filed as part of the date of Registration Statement at the Prospectus Supplementtime it originally became effective or any amendment thereto), will comply 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 Securities Act was identical to the electronically transmitted copies thereof filed with the Commission pursuant to E▇▇▇▇, except to the extent permitted by Regulation S-T.
(5) As of the Initial Sale Time, neither (x) the Issuer General Use Free Writing Prospectus(es) (as defined below) issued at or prior to the Initial Sale Time (as defined below), each preliminary prospectus issued at or prior to the Initial Sale Time and the Securities Act Rules and Regulationsinformation included on Schedule III hereto all considered together (collectively, and the Prospectus“ Disclosure Package”), nor (y) any individual Issuer Limited Use Free Writing Prospectus (as of defined below), when considered together with the date of the Prospectus Supplement and the Applicable TimeDisclosure Package, did not and will not contain included any untrue statement of a material fact or omit omitted 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; provided, however, that the representations and warranties . As used in this subsection shall not apply to statements and elsewhere in or omissions from the Registration Statement or Prospectus or any amendments or supplements thereto made in reliance upon and in conformity with information relating to the Sales Manager furnished to the Company in writing by the Sales Manager expressly for use in the Registration Statement or Prospectus, it being understood and agreed that the only such information furnished by the Sales Manager consists of the following information in the Prospectus Supplement furnished on behalf the Sales Manager: the last paragraph under the caption “Plan of Distribution.” The Shares have been duly registered under the Securities Act pursuant to the Registration Statement. Each of the Registration Statement, any Rule 462(b) Registration Statement and any post-effective amendments thereto has become effective, and no order suspending the effectiveness of the Registration Statement has been issued by the Commission.
(ii) The Registration Statement has become effective; the Commission has not issued, and is not, to the knowledge of the Company, threatening to issue, any stop order under the Securities Act or other order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto, and no proceedings for such purpose have been instituted or are pending or, to the best knowledge of the Company are contemplated or threatened by the Commission.
(iii) The Company has elected to be regulated by the Commission as a business development company under the Investment Company Act of 1940, as amended (the “Investment Company Act”), and has not withdrawn that election, and the Commission has not ordered that such election be withdrawn nor to the best of the Company’s knowledge have proceedings to effectuate such withdrawal been initiated or threatened by the Commission.
(iv) To the Company’s knowledge, PricewaterhouseCoopers LLP, the accounting firm that audited the financial statements of the Company set forth in the Registration Statement and Prospectus, were and are independent registered accounting firms as required by the Securities Act and the Securities Act Rules and Regulations and the rules and regulations of the Public Company Accounting Oversight Board.
(v) The financial statements, together with the related schedules and notes thereto, of the Company set forth in the Registration Statement and the Prospectus fairly present in all material respects the results of operations and financial condition of the Company and its subsidiaries as of the dates indicated and the results of their operations for the respective periods specified, and are prepared in conformity with U.S. generally accepted accounting principles and the selected financial information and data included in the Registration Statement and the Prospectus have been prepared on a basis consistent with that of the books and records of the Company.
(vi) The Company (A) has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland, has full corporate power and authority to conduct its business as described in the Prospectus; (B) has full power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby; and (C) is duly licensed or qualified to do business as a foreign corporation and in good standing in each jurisdiction where the Company is required to be qualified or licensed or in good standing, except where the failure to be so qualified or licensed or to be in good standing would not result in a material adverse effect upon the financial condition, business or operations of the Company and its subsidiaries, taken as a whole (“Material Adverse Effect”).
(vii) The Company is not, or with the giving of notice or lapse of time or both would not be, in default or violation with respect to its charter or bylaws or governing documents. The Company is not, or with the giving of notice or lapse of time or both would not be, in default in the performance or observance of any obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which the Company is a party or by which the Company is bound or to which any of the properties or assets of the Company is subject, or in violation of any statutes, laws, ordinances or governmental rules or regulations or any orders or decrees to which it is subject.
(viii) The Company’s authorized capitalization is as set forth in the Prospectus; the outstanding shares of Common Stock have been duly authorized and validly issued and are fully paid and non-assessable and conform in all material respects to the description thereof in the Prospectus under the heading “Description of Capital Stock;” the Shares have been duly authorized by all requisite corporate action on the part of the Company for the issuance and sale of the Shares to the Sales Manager pursuant to this Agreement and, when the Shares are delivered and paid for pursuant to this Agreement on the Applicable Time, such Shares will have been validly issued and fully paid and non-assessable. The stockholders of the Company have no preemptive rights with respect to the Shares and none of the outstanding shares of capital stock of the Company have been issued in violation of any preemptive rights of any security holder.
(ix) Except as set forth in the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, (A) the Company and its subsidiaries have not incurred any liabilities or obligations, direct or contingent, or entered into any transactions, other than in the ordinary course of business, that are material to the Company and its subsidiaries taken as a whole, (B) there has not been any material change in the capital stock of the Company, or any material adverse change, or, to the Company’s knowledge, any development involving a prospective material adverse change, in the condition (financial or otherwise), business, net worth, property or results of operations of the Company (excluding changes due to investment activities in the ordinary course of business), (C) there has been no dividend or distribution declared or paid in respect of the Company’s capital stock and (D) the Company and its subsidiaries have not incurred any short-term debt or long-term debt that is, in either case, material with respect to the Company and its subsidiaries taken as a whole (excluding debt resulting from a draw down on the Company’s credit facilities).
(x) There is no pending or, to the knowledge of the Company, threatened action, suit or proceeding, legal or governmental, to which the Company or any of its subsidiaries is a party, before or by any court or governmental agency or body, that is required to be described in the Prospectus and is not so described.
(xi) There are no contracts, agreements or understandings of the Company or any of its subsidiaries that are required to be filed as exhibits to the Registration Statement by the Securities Act or by the Securities Act Rules and Regulations that have not been so filed or incorporated by reference therein as permitted by the Securities Act Rules and Regulations.
(xii) This Agreement has been duly authorized, executed and delivered by the Company.
(xiii) The execution, delivery and performance of this Agreement, the issuance and sale of the Shares and the consummation of the transactions contemplated herein and the Prospectus (including the issuance and sale of the Shares and the use of the proceeds from the sale of the Shares as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or result in a breach or violation of any of the terms and provisions of, constitute a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any of its subsidiaries pursuant to, any agreement, indenture, mortgage, lease or other instrument to which the Company or any of its subsidiaries is a party or by which it or any of its properties or assets may be bound nor will such action result in any violation of the Company’s or any of its subsidiaries’ charter, bylaws or other organizational documents, or any order, law, statute, rule, regulation, judgment, order, writ or decree of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Company or any of its subsidiaries or any of their respective assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its subsidiaries.:
Appears in 1 contract
Representations and Warranties by the Company. The Company represents and warrants to the Sales Manager as of the date hereof and as of each Representation Date (as defined herein) on which a certificate is required to be delivered pursuant to Section 7(n) of this Agreement and as of the time of each sale of any Shares or any securities pursuant to this Agreement (the “Applicable Time”), and agrees with the Sales Manager, as followsUnderwriter that:
(i) The Company meets Registration Statement has become effective; no stop order suspending the requirements for use effectiveness of Form N-2 under the Securities Act and the Securities Act Rules and Regulations. At the time the Registration Statement became effectiveis in effect, and no proceedings for such purpose are pending before or, to the Registration Statement Company’s knowledge, threatened by the Commission.
(ii) (A) Each document, if any, filed or to be filed pursuant to the 1934 Act and incorporated by reference in the General Disclosure Package or the Prospectus complied or will comply when so filed in all material respects with the requirements of the Securities 1934 Act and the Securities Act Rules applicable rules and Regulations and regulations of the Commission thereunder; (B) each part of the Registration Statement, when such part became effective, did not include contain, and each such part, as amended or supplemented, if applicable, will not contain, as of the date of such amendment or supplement, any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; (C) the Prospectus complied, as of its date, in all material respects, with the requirements of the Securities Act and the Securities Act Rules and Regulations Registration Statement as of the Applicable Time, did date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; (D) the Registration Statement and the Prospectus comply and, as amended or supplemented, if applicable, will, as of the date of such amendment or supplement, comply in all material respects with the 1933 Act and the applicable rules and regulations of the Commission thereunder; (E) the General Disclosure Package does not, and at the time of each sale of the Securities in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Time (as defined in Section 2), the General Disclosure Package, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; the Prospectus(F) each broadly available road show, as of the date of the Prospectus Supplementif any, will comply in all material respects when considered together with the requirements of the Securities Act and the Securities Act Rules and RegulationsGeneral Disclosure Package, and the Prospectus, as of the date of the Prospectus Supplement and the Applicable Time, did not and will does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading and (G) the Prospectus, as of its date, does not contain and, as amended or supplemented, if applicable, will not contain, as of its date and as of the Closing Time and each Date of Delivery (as defined in Section 2), any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, except that the representations and warranties set forth in this subsection shall paragraph do not apply to statements in or omissions from in the Registration Statement Statement, the General Disclosure Package or the Prospectus or any amendments or supplements thereto made in reliance based upon and in conformity with information relating to the Sales Manager any Underwriter furnished to the Company in writing by the Sales Manager such Underwriter through you expressly for use in the Registration Statement or Prospectus, it being understood and agreed that the only such information furnished by the Sales Manager consists of the following information in the Prospectus Supplement furnished on behalf the Sales Manager: the last paragraph under the caption “Plan of Distribution.” The Shares have been duly registered under the Securities Act pursuant to the Registration Statement. Each of the Registration Statement, any Rule 462(b) Registration Statement and any post-effective amendments thereto has become effective, and no order suspending the effectiveness of the Registration Statement has been issued by the Commission.
(ii) The Registration Statement has become effective; the Commission has not issued, and is not, to the knowledge of the Company, threatening to issue, any stop order under the Securities Act or other order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto, and no proceedings for such purpose have been instituted or are pending or, to the best knowledge of the Company are contemplated or threatened by the Commissiontherein.
(iii) The Company is not an “ineligible issuer” in connection with the offering pursuant to Rules 164, 405 and 433 under the 1933 Act. Any free writing prospectus that the Company is required to file pursuant to Rule 433(d) under the 1933 Act has elected been, or will be, filed with the Commission in accordance with the requirements of the 1933 Act and the applicable rules and regulations of the Commission thereunder. Each free writing prospectus that the Company has filed, or is required to be regulated file, pursuant to Rule 433(d) under the 1933 Act or that was prepared by or on behalf of or used or referred to by the Commission as a business development company under the Investment Company Act of 1940complies or will, as amended (of the “Investment Company Act”)time of such filing, comply in all material respects with the requirements of the 1933 Act and the applicable rules and regulations of the Commission thereunder. Except for the Issuer Free Writing Prospectuses, if any, identified in Schedule B-2 hereto, and electronic road shows, if any, each furnished to you before first use, the Company has not withdrawn that electionprepared, used or referred to, and the Commission has not ordered that such election be withdrawn nor to the best of the Company’s knowledge have proceedings to effectuate such withdrawal been initiated will not, without your prior consent, prepare, use or threatened by the Commissionrefer to, any Issuer Free Writing Prospectus.
(iv) To the Company’s knowledge, PricewaterhouseCoopers LLP, the accounting firm that audited the financial statements of the Company set forth in the Registration Statement and Prospectus, were and are independent registered accounting firms as required by the Securities Act and the Securities Act Rules and Regulations and the rules and regulations of the Public Company Accounting Oversight Board.
(v) The financial statements, together with the related schedules and notes thereto, of the Company set forth in the Registration Statement and the Prospectus fairly present in all material respects the results of operations and financial condition of the Company and its subsidiaries as of the dates indicated and the results of their operations for the respective periods specified, and are prepared in conformity with U.S. generally accepted accounting principles and the selected financial information and data included in the Registration Statement and the Prospectus have been prepared on a basis consistent with that of the books and records of the Company.
(vi) The Company (A) has been duly incorporated and incorporated, is validly existing as a corporation in good standing under the laws of the State jurisdiction of Marylandits incorporation, has full the corporate power and authority to own its property and to conduct its business as described in the Prospectus; (B) has full power General Disclosure Package and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby; and (C) is duly licensed or qualified to do transact business as a foreign corporation and is in good standing in each jurisdiction where in which the Company is required to be qualified conduct of its business or licensed its ownership or in good standingleasing of property requires such qualification, except where to the extent that the failure to be so qualified or licensed or to be in good standing would not result in have a material adverse effect upon on the financial condition, business or operations of the Company. The Company and its does not have any subsidiaries, taken as a whole (“Material Adverse Effect”).
(vii) The Company is not, or with the giving of notice or lapse of time or both would not be, in default or violation with respect to its charter or bylaws or governing documents. The Company is not, or with the giving of notice or lapse of time or both would not be, in default in the performance or observance of any obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which the Company is a party or by which the Company is bound or to which any of the properties or assets of the Company is subject, or in violation of any statutes, laws, ordinances or governmental rules or regulations or any orders or decrees to which it is subject.
(viii) The Company’s authorized capitalization is as set forth in the Prospectus; the outstanding shares of Common Stock have been duly authorized and validly issued and are fully paid and non-assessable and conform in all material respects to the description thereof in the Prospectus under the heading “Description of Capital Stock;” the Shares have been duly authorized by all requisite corporate action on the part of the Company for the issuance and sale of the Shares to the Sales Manager pursuant to this Agreement and, when the Shares are delivered and paid for pursuant to this Agreement on the Applicable Time, such Shares will have been validly issued and fully paid and non-assessable. The stockholders of the Company have no preemptive rights with respect to the Shares and none of the outstanding shares of capital stock of the Company have been issued in violation of any preemptive rights of any security holder.
(ix) Except as set forth in the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, (A) the Company and its subsidiaries have not incurred any liabilities or obligations, direct or contingent, or entered into any transactions, other than in the ordinary course of business, that are material to the Company and its subsidiaries taken as a whole, (B) there has not been any material change in the capital stock of the Company, or any material adverse change, or, to the Company’s knowledge, any development involving a prospective material adverse change, in the condition (financial or otherwise), business, net worth, property or results of operations of the Company (excluding changes due to investment activities in the ordinary course of business), (C) there has been no dividend or distribution declared or paid in respect of the Company’s capital stock and (D) the Company and its subsidiaries have not incurred any short-term debt or long-term debt that is, in either case, material with respect to the Company and its subsidiaries taken as a whole (excluding debt resulting from a draw down on the Company’s credit facilities).
(x) There is no pending or, to the knowledge of the Company, threatened action, suit or proceeding, legal or governmental, to which the Company or any of its subsidiaries is a party, before or by any court or governmental agency or body, that is required to be described in the Prospectus and is not so described.
(xi) There are no contracts, agreements or understandings of the Company or any of its subsidiaries that are required to be filed as exhibits to the Registration Statement by the Securities Act or by the Securities Act Rules and Regulations that have not been so filed or incorporated by reference therein as permitted by the Securities Act Rules and Regulations.
(xiiv) This Agreement has been duly authorized, executed and delivered by the Company.
(xiiivi) As of the Closing Time and each Date of Delivery, the authorized capital stock of the Company will conform as to legal matters to the description thereof contained in each of the General Disclosure Package and the Prospectus.
(vii) The executionshares of Common Stock outstanding prior to the issuance of the Securities have been duly authorized and are validly issued, delivery fully paid and performance non-assessable.
(viii) The Securities have been duly authorized and, when issued and delivered in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Securities will not be subject to any preemptive or similar rights.
(ix) The execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement will not contravene any provision of (i) applicable law, (ii) the certificate of incorporation or by-laws of the Company, (iii) any agreement or other instrument binding upon the Company that is material to the Company or (iv) any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Company, except that in the case of clauses (i), (iii) and (iv) as would not, individually or in the aggregate, have a material adverse effect on the Company or on the power and ability of the Company to perform its obligations under this Agreement, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Company of its obligations under this Agreement, except such as may have been previously obtained or may be required by the securities or Blue Sky laws of the various states or foreign jurisdictions or the rules and regulations of the Financial Industry Regulatory Authority, Inc. (“FINRA”) in connection with the offer and sale of the Shares and Securities.
(x) There has not occurred any material adverse change, or, any development reasonably likely to result in a prospective material adverse change, in the consummation condition, financial or otherwise, or in the earnings, business or operations of the Company from that set forth in the General Disclosure Package.
(xi) There are no legal or governmental proceedings pending or, to the Company’s knowledge, threatened to which the Company is a party or to which any of the properties of the Company is subject (i) other than proceedings accurately described in all material respects in the General Disclosure Package or proceedings that would not reasonably be expected to have a material adverse effect on the Company or on the power or ability of the Company to perform its obligations under this Agreement or to consummate the transactions contemplated herein by the General Disclosure Package or (ii) that are required to be described in the Registration Statement or the Prospectus and are not so described in all material respects; and there are no statutes, regulations, contracts or other documents that are required to be described in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement that are not described in all material respects or filed as required.
(xii) Each preliminary prospectus filed as part of the Registration Statement as originally filed or as part of any amendment thereto, or filed pursuant to Rule 424 under the 1933 Act, complied when so filed in all material respects with the 1933 Act and the Prospectus applicable rules and regulations of the Commission thereunder.
(including xiii) The Company is not, and after giving effect to the issuance offering and sale of the Shares Securities and the use application of the proceeds from the sale of the Shares thereof as described in the Prospectus will not be, required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(xiv) The Company (i) is in compliance with any and all applicable foreign, 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) has received all permits, licenses or other approvals required of them under the caption “Use of Proceeds”applicable Environmental Laws to conduct their respective businesses and (iii) is in compliance with all terms and compliance by the Company with its obligations hereunder do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or result in a breach or violation conditions of any of such permit, license or approval, except where such noncompliance with Environmental Laws, failure to receive required permits, licenses or other approvals or failure to comply with the terms and provisions ofconditions of such permits, constitute a default licenses or Repayment Event (as defined below) underapprovals would not, singly or result in the creation aggregate, reasonably be expected to have a material adverse effect on the Company.
(xv) There are no costs or imposition liabilities associated with Environmental Laws (including, without limitation, any capital or operating expenditures required for clean-up, closure of any lien, charge or encumbrance upon any properties or assets of compliance with Environmental Laws or any permit, license or approval, any related constraints on operating activities and any potential liabilities to third parties) which would, singly or in the aggregate, reasonably be expected to have a material adverse effect on the Company.
(xvi) Except as described in the General Disclosure Package and the Prospectus, there are no contracts, agreements or understandings between the Company or any of its subsidiaries pursuant to, any agreement, indenture, mortgage, lease or other instrument to which the Company or any of its subsidiaries is a party or by which it or any of its properties or assets may be bound nor will such action result in any violation of the Company’s or any of its subsidiaries’ charter, bylaws or other organizational documents, or any order, law, statute, rule, regulation, judgment, order, writ or decree of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Company or any of its subsidiaries or any of their respective assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or and any person acting on granting such holder’s behalf) person the right to require the repurchase, redemption or repayment Company to file a registration statement under the 1933 Act with respect to any securities of all or a portion of such indebtedness by the Company or to require the Company to include such securities with the Securities registered pursuant to the Registration Statement.
(xvii) Neither the Company nor, to the Company’s knowledge, any director, officer, employee, agent, affiliate or representative thereof, has taken (or has any plans to take) any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment or giving of money, property, gifts or anything else of value, directly or indirectly, to any “government official” (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) to illegally influence official action or secure an improper advantage for the Company; and the Company has conducted its subsidiariesbusiness in compliance with applicable anti-corruption laws and has instituted and maintains (and has no intent to discontinue) policies and procedures designed to promote and achieve compliance with such laws.
(xviii) The operations of the Company are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements, including those of the Bank Secrecy Act, as amended by Title III of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), and the applicable anti-money laundering statutes of jurisdictions where the Company conducts business, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Anti-Money Laundering Laws”), and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Company, threatened.
(xix) (A) Neither the Company nor, to the Company’s knowledge, any director, officer, employee, agent, affiliate or representative thereof, is an individual or entity (“Person”) that is, or is owned or controlled by a Person that is:
(a) the subject of any sanctions administered or enforced by the U.S. Department of Treasury’s Office of Foreign Assets Control (“OFAC”), the United Nations Security Council (“UNSC”), the European Union (“EU”), Her Majesty’s Treasury (“HMT”), or other relevant sanctions authority (collectively, “Sanctions”), nor
(b) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Cuba, Iran, North Korea, Sudan and Syria).
Appears in 1 contract
Representations and Warranties by the Company. The Company represents and warrants to the Sales Manager each Underwriter as of the date hereof and as of each Representation Date (as defined herein) on which a certificate is required to be delivered pursuant to Section 7(n) of this Agreement and hereof, as of the time of each sale of any Shares or any securities pursuant Closing Time referred to this Agreement (the “Applicable Time”)in Section 2(b) hereof, and agrees with the Sales Managereach Underwriter, as follows:
(i) The Company meets Each of the requirements for use of Form N-2 Registration Statement and any Rule 462(b) Registration Statement has become effective under the Securities 1933 Act and no stop order suspending the Securities effectiveness of the Registration Statement or any Rule 462(b) Registration Statement has been issued under the 1933 Act Rules and Regulationsno 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. At the time respective times the Registration Statement, any Rule 462(b) Registration Statement and any post-effective amendments thereto became effectiveeffective and at the Closing Time, the Registration Statement, the 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 1933 Act and the Securities 1933 Act Rules and Regulations and did not include any and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; , and the Prospectus compliedProspectus, as any preliminary prospectus and any supplement thereto or prospectus wrapper prepared in connection therewith, at their respective times of its dateissuance and at the Closing Time, complied and will comply in all material respectsrespects with any applicable laws or regulations of foreign jurisdictions in which the Prospectus and such preliminary prospectus, as amended or supplemented, if applicable, are distributed in connection with the requirements offer and sale of Reserved Securities. Neither the Securities Act Prospectus nor any amendments or supplements thereto (including any prospectus wrapper), at the time the Prospectus or any such amendment or supplement was issued and at the Securities Act Rules and Regulations as of the Applicable Closing Time, did not contain any 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; . If Rule 434 is used, the Prospectus, as of the date of the Prospectus Supplement, Company will comply in all material respects with the requirements of the Securities Act Rule 434 and the Securities Act Rules and RegulationsProspectus shall not be "materially different," as such term is used in Rule 434, and from the Prospectus, as of the date of the Prospectus Supplement and the Applicable Time, did not and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, prospectus included in the light of Registration Statement at the circumstances under which they were made, not misleading; provided, however, that the time it became effective. The representations and warranties in this subsection shall not apply to statements in or omissions from the Registration Statement or Prospectus or any amendments or supplements thereto made in reliance upon and in conformity with information relating to the Sales Manager furnished to the Company in writing by the Sales Manager any Underwriter through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use in the Registration Statement or Prospectus, it being understood and agreed that the only such information furnished by the Sales Manager consists of the following information in the Prospectus Supplement furnished on behalf the Sales Manager: the last paragraph under the caption “Plan of Distribution.” The Shares have been duly registered under the Securities Act pursuant to the Registration Statement. Each of the Registration Statement, any Rule 462(b) Registration Statement and any post-effective amendments thereto has become effective, and no order suspending the effectiveness of the Registration Statement has been issued by the Commission.
(ii) The Registration Statement has become effective; Each preliminary prospectus and the Commission has not issued, and is not, to the knowledge of the Company, threatening to issue, any stop order under the Securities Act or other order suspending the effectiveness prospectus filed as part of the Registration Statement as originally filed or as part of any post-effective amendment thereto, or filed pursuant to Rule 424 under the 1933 Act, complied when so filed in all material respects with the 1933 Act Regulations, and no proceedings for such purpose have been instituted or are pending or, each preliminary prospectus and the Prospectus delivered to the best knowledge of Underwriters for use in connection with the Company are contemplated or threatened Offering were identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by the Commission.Regulation S-T.
(iii) The Company No action has elected to be regulated been taken and no local, state or Federal law, statute, ordinance, rules, regulation, requirement, judgment or court decree has been enacted, adopted or issued by any governmental agency that prevents the Commission as a business development company under the Investment Company Act of 1940, as amended (the “Investment Company Act”), and has not withdrawn that election, and the Commission has not ordered that such election be withdrawn nor to the best issuance of the Company’s knowledge have proceedings Units or prevents or suspends the use of the Prospectus; no judgment, restraining order or order of any nature by a Federal or state court of competent jurisdiction has been issued that prevents the issuance of the Units or prevents or suspends the sale of the Units in any jurisdiction referred to effectuate such withdrawal in Section 3(f) hereof; and every request of any securities authority or agency of any jurisdiction for additional information has been initiated or threatened by the Commissioncomplied with in all material respects.
(iv) To the Company’s knowledge, PricewaterhouseCoopers LLP, the accounting firm that audited the financial statements of the Company set forth in the Registration Statement and Prospectus, were and There are independent registered accounting firms as required by the Securities Act and the Securities Act Rules and Regulations and the rules and regulations of the Public Company Accounting Oversight Board.
(v) The financial statements, together with the related schedules and notes thereto, of the Company set forth in the Registration Statement and the Prospectus fairly present in all material respects the results of operations and financial condition of the Company and its subsidiaries as of the dates indicated and the results of their operations for the respective periods specified, and are prepared in conformity with U.S. generally accepted accounting principles and the selected financial information and data included in the Registration Statement and the Prospectus have been prepared on a basis consistent with that of the books and records of the Company.
(vi) The Company (A) has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland, has full corporate power and authority to conduct its business as described in the Prospectus; (B) has full power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby; and (C) is duly licensed or qualified to do business as a foreign corporation and in good standing in each jurisdiction where the Company is required to be qualified or licensed or in good standing, except where the failure to be so qualified or licensed or to be in good standing would not result in a material adverse effect upon the financial condition, business or operations of the Company and its subsidiaries, taken as a whole (“Material Adverse Effect”).
(vii) The Company is not, or with the giving of notice or lapse of time or both would not be, in default or violation with respect to its charter or bylaws or governing documents. The Company is not, or with the giving of notice or lapse of time or both would not be, in default in the performance or observance of any obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease no contracts or other agreement or instrument to which the Company is a party or by which the Company is bound or to which any of the properties or assets of the Company is subject, or in violation of any statutes, laws, ordinances or governmental rules or regulations or any orders or decrees to which it is subject.
(viii) The Company’s authorized capitalization is as set forth in the Prospectus; the outstanding shares of Common Stock have been duly authorized and validly issued and are fully paid and non-assessable and conform in all material respects to the description thereof in the Prospectus under the heading “Description of Capital Stock;” the Shares have been duly authorized by all requisite corporate action on the part of the Company for the issuance and sale of the Shares to the Sales Manager pursuant to this Agreement and, when the Shares are delivered and paid for pursuant to this Agreement on the Applicable Time, such Shares will have been validly issued and fully paid and non-assessable. The stockholders of the Company have no preemptive rights with respect to the Shares and none of the outstanding shares of capital stock of the Company have been issued in violation of any preemptive rights of any security holder.
(ix) Except as set forth in the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, (A) the Company and its subsidiaries have not incurred any liabilities or obligations, direct or contingent, or entered into any transactions, other than in the ordinary course of business, that are material to the Company and its subsidiaries taken as a whole, (B) there has not been any material change in the capital stock of the Company, or any material adverse change, or, to the Company’s knowledge, any development involving a prospective material adverse change, in the condition (financial or otherwise), business, net worth, property or results of operations of the Company (excluding changes due to investment activities in the ordinary course of business), (C) there has been no dividend or distribution declared or paid in respect of the Company’s capital stock and (D) the Company and its subsidiaries have not incurred any short-term debt or long-term debt that is, in either case, material with respect to the Company and its subsidiaries taken as a whole (excluding debt resulting from a draw down on the Company’s credit facilities).
(x) There is no pending or, to the knowledge of the Company, threatened action, suit or proceeding, legal or governmental, to which the Company or any of its subsidiaries is a party, before or by any court or governmental agency or body, that is documents required to be described in the Prospectus and is not so described.
(xi) There are no contracts, agreements Registration Statement or understandings of the Company or any of its subsidiaries that are required to be filed as exhibits to the Registration Statement by the Securities 1933 Act or by the Securities 1933 Act Rules and Regulations that which have not been described or filed as required. The contracts so filed described in the Prospectus are accurate and complete in all material respects, and all such contracts described as being in full force and effect on the date hereof are in full force and effect on the date hereof. Neither the Company nor any of its subsidiaries or, to the best of the Company's knowledge, any other party is in breach of or incorporated by reference therein as permitted by the Securities Act Rules and Regulationsdefault under any such contract.
(xiiv) This Agreement Each of the Company and ART Licensing Corp., a Delaware corporation ("ART Licensing") has been duly authorizedformed as a corporation and is validly existing in good standing under the laws of its jurisdiction of incorporation and has all requisite corporate power and authority to own, executed lease and delivered by the Company.
(xiii) The execution, delivery operate its properties and performance of this Agreement, the issuance and sale of the Shares and the consummation of the transactions contemplated herein and the Prospectus (including the issuance and sale of the Shares and the use of the proceeds from the sale of the Shares to conduct its business as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or result in a breach or violation of any of the terms and provisions of, constitute a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any properties or assets Prospectus. Each of the Company or any and ART Licensing is duly qualified to do business and is in good standing as a foreign corporation in each jurisdiction in which the nature of its subsidiaries pursuant tobusiness or its ownership or leasing of property requires such qualification, any agreementexcept where the failure to be so qualified would not have, indentureeither individually or in the aggregate, mortgagea material adverse effect on the assets, lease properties, business, management, earnings, net worth, results of operations, condition (financial or other instrument to which otherwise) or business prospects of the Company or any of and its subsidiaries is subsidiaries, taken as a party or by which it or any of its properties or assets may be bound nor will such action result whole. No proceeding has been instituted in any violation of the Company’s such jurisdiction, revoking, limiting or any of its subsidiaries’ charter, bylaws or other organizational documentscurtailing, or any orderseeking to revoke, lawlimit or curtail, statute, rule, regulation, judgment, order, writ such power and authority or decree of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Company or any of its subsidiaries or any of their respective assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its subsidiariesqualification.
Appears in 1 contract
Representations and Warranties by the Company. The Company represents and warrants to the Sales Manager Reset Remarketing Agent, as of the date hereof hereof, as of the Effective Date, and as of each Representation Reset Tender Date (as defined hereineach, a "Representation Date") on which a certificate is required to be delivered pursuant to Section 7(n) of this Agreement and as of the time of each sale of any Shares or any securities pursuant to this Agreement (the “Applicable Time”), and agrees with the Sales Manager, as follows:
(ia) The Company meets It has made all the requirements for use of Form N-2 filings with the Commission that it is required to make under the Securities Exchange Act of 1934, as amended (the "1934 Act"), and the Securities rules and regulations thereunder (the "1934 Act Rules and Regulations. At the time the Registration Statement became effective") (collectively, the Registration Statement complied "1934 Act Documents"), (ii) each 1934 Act Document complies in all material respects with the requirements of the Securities 1934 Act and the Securities 1934 Act Rules Regulations, and Regulations and each 1934 Act Document did not at the time of filing with the Commission, and as of each Representation Date, as modified or superseded by any subsequently filed 1934 Act Document on or prior to such Representation Date, will not, include any 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 therein, in the light of the circumstances under which they were made, not misleading; misleading and (iii) the Prospectus compliedapplicable Reset Remarketing Materials (as defined herein), as of its dateeach Representation Date after the date hereof, in all material respectsas modified or superseded by any subsequently filed 1934 Act Document on or prior to such Representation Date (or, with if applicable, by any document filed pursuant to the requirements of the Securities 1933 Act and the Securities rules and regulations thereunder (the "1933 Act Rules and Regulations as of the Applicable TimeRegulations")), did will not contain any include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; .
(b) The Company further represents and warrants to the Prospectus, Reset Remarketing Agent as of each Representation Date as follows:
(i) The accountants who certified the date of financial statements and supporting schedules included or incorporated by reference in the Prospectus Supplement, will comply in all material respects with 1934 Act Documents are independent public accountants as required by the requirements of the Securities 1933 Act and the Securities 1933 Act Rules and Regulations, and the Prospectus, as of the date of the Prospectus Supplement and the Applicable Time, did not and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the representations and warranties in this subsection shall not apply to statements in or omissions from the Registration Statement or Prospectus or any amendments or supplements thereto made in reliance upon and in conformity with information relating to the Sales Manager furnished to the Company in writing by the Sales Manager expressly for use in the Registration Statement or Prospectus, it being understood and agreed that the only such information furnished by the Sales Manager consists of the following information in the Prospectus Supplement furnished on behalf the Sales Manager: the last paragraph under the caption “Plan of Distribution.” The Shares have been duly registered under the Securities Act pursuant to the Registration Statement. Each of the Registration Statement, any Rule 462(b) Registration Statement and any post-effective amendments thereto has become effective, and no order suspending the effectiveness of the Registration Statement has been issued by the Commission.
(ii) The Registration Statement has become effective; the Commission has not issued, and is not, to the knowledge of the Company, threatening to issue, any stop order under the Securities Act or other order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto, and no proceedings for such purpose have been instituted or are pending or, to the best knowledge of the Company are contemplated or threatened by the Commission.
(iii) The Company has elected to be regulated by the Commission as a business development company under the Investment Company Act of 1940, as amended (the “Investment Company Act”), and has not withdrawn that election, and the Commission has not ordered that such election be withdrawn nor to the best of the Company’s knowledge have proceedings to effectuate such withdrawal been initiated or threatened by the Commission.
(iv) To the Company’s knowledge, PricewaterhouseCoopers LLP, the accounting firm that audited the financial statements of the Company set forth included or incorporated by reference in the Registration Statement and Prospectus, were and are independent registered accounting firms as required by the Securities 1934 Act and the Securities Act Rules and Regulations and the rules and regulations of the Public Company Accounting Oversight Board.
(v) The financial statementsDocuments, together with the related schedules and notes, present fairly the financial position of the Company and its consolidated subsidiaries at the dates indicated and the statement of operations, stockholders' equity and cash flows of the Company and its consolidated subsidiaries for the periods specified; such financial statements have been prepared in conformity with generally accepted accounting principles ("GAAP") applied on a consistent basis throughout the periods involved. The supporting schedules, if any, included or incorporated by reference in the 1934 Act Documents present fairly in accordance with GAAP the information required to be stated therein. The pro forma financial statements and the related notes thereto, of the Company set forth if any, included or incorporated by reference in the Registration Statement 1934 Act Documents present fairly the information shown therein, have been prepared in accordance with the Commission's rules and guidelines with respect to pro forma financial statements and have been properly compiled on the bases described therein, and the Prospectus fairly present assumptions used in all the preparation thereof are reasonable and the adjustments used therein are appropriate to give effect to the transactions and circumstances referred to therein.
(iii) Since the respective dates as of which information is given in the 1934 Act Documents, except as otherwise stated therein, (A) there has been no material respects adverse change and no development which could reasonably be expected to result in a material adverse change in the results of operations and condition, financial condition or otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business (a "Material Adverse Effect"), (B) there have been no transactions entered into by the dates indicated Company or any of its subsidiaries, other than those in the ordinary course of business, which are material with respect to the Company and the results of their operations for the respective periods specifiedits subsidiaries considered as one enterprise, and (C) except for regular quarterly dividends on the Company's common stock in amounts per share that are prepared in conformity with U.S. generally accepted accounting principles and the selected financial information and data included in the Registration Statement and the Prospectus have been prepared on a basis consistent with that past practice, there has been no dividend or distribution of any kind declared, paid or made by the books and records Company on any class of the Companyits capital stock.
(viiv) The Company (A) has been duly incorporated organized and is validly existing as a corporation in good standing under the laws of the State of MarylandMichigan, has full with corporate power and authority to own, lease and operate its properties and to conduct its business as presently conducted and as described in the Prospectus; (B) has full power and authority to execute and deliver this Agreement 1934 Act Documents and to consummate the transactions contemplated herebyenter into and perform its obligations under this Agreement; and (C) the Company is duly licensed or qualified to do business as a foreign corporation to transact business and is in good standing in each other jurisdiction where in which such qualification is required, whether by reason of the Company is required to be qualified ownership or licensed leasing of property or in good standingthe conduct of business, except where the failure so to be so qualified or licensed qualify or to be in good standing would not result in a material adverse effect upon the financial condition, business or operations Material Adverse Effect.
(v) The shares of issued and outstanding capital stock of the Company and its subsidiaries, taken as a whole (“Material Adverse Effect”).
(vii) The Company is not, or with the giving of notice or lapse of time or both would not be, in default or violation with respect to its charter or bylaws or governing documents. The Company is not, or with the giving of notice or lapse of time or both would not be, in default in the performance or observance of any obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which the Company is a party or by which the Company is bound or to which any of the properties or assets of the Company is subject, or in violation of any statutes, laws, ordinances or governmental rules or regulations or any orders or decrees to which it is subject.
(viii) The Company’s authorized capitalization is as set forth in the Prospectus; the outstanding shares of Common Stock have been duly authorized and validly issued and are fully paid and non-assessable and conform in all material respects to the description thereof in the Prospectus under the heading “Description of Capital Stock;” the Shares have been duly authorized by all requisite corporate action on the part of the Company for the issuance and sale of the Shares to the Sales Manager pursuant to this Agreement and, when the Shares are delivered and paid for pursuant to this Agreement on the Applicable Time, such Shares will have been validly issued and fully paid and non-assessable. The stockholders of the Company have no preemptive rights with respect to the Shares and ; none of the outstanding shares of capital stock of the Company have been was issued in violation of any the preemptive or other similar rights arising by operation of any security holder.
(ix) Except as set forth in law, under the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, (A) the Company and its subsidiaries have not incurred any liabilities charter or obligations, direct or contingent, or entered into any transactions, other than in the ordinary course of business, that are material to the Company and its subsidiaries taken as a whole, (B) there has not been any material change in the capital stock by-laws of the Company, or under any material adverse change, or, to the Company’s knowledge, any development involving a prospective material adverse change, in the condition (financial or otherwise), business, net worth, property or results of operations of the Company (excluding changes due to investment activities in the ordinary course of business), (C) there has been no dividend or distribution declared or paid in respect of the Company’s capital stock and (D) the Company and its subsidiaries have not incurred any short-term debt or long-term debt that is, in either case, material with respect to the Company and its subsidiaries taken as a whole (excluding debt resulting from a draw down on the Company’s credit facilities).
(x) There is no pending or, to the knowledge of the Company, threatened action, suit or proceeding, legal or governmental, agreement to which the Company or any of its subsidiaries is a partyparty or otherwise.
(vi) Each subsidiary of the Company has been duly organized and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, before or by any court or governmental agency or bodywith corporate power and authority to own, that is required lease and operate its properties and to be conduct its business as presently conducted and as described in the Prospectus 1934 Act Documents and is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so to qualify or to be in good standing would not so describedresult in a Material Adverse Effect; except as otherwise disclosed in the 1934 Act Documents, all of the issued and outstanding capital stock of each such subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and is owned by the Company, as the case may be, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity; none of the outstanding shares of capital stock of any such subsidiary was issued in violation of the preemptive or similar rights of any securityholder of such subsidiary.
(xi) There are no contracts, agreements or understandings of the Company or any of its subsidiaries that are required to be filed as exhibits to the Registration Statement by the Securities Act or by the Securities Act Rules and Regulations that have not been so filed or incorporated by reference therein as permitted by the Securities Act Rules and Regulations.
(xiivii) This Reset Remarketing Agreement has and the Reset Remarketing Agreement Supplement have been duly authorized, executed and delivered by the Company.
(viii) The Indenture has been duly authorized, executed and delivered by the Company and duly qualified under the Trust Indenture Act of 1939, as amended (the "1939 Act"), and, assuming it has been duly executed and delivered by the Trustee,
constitutes a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as the enforcement thereof may be limited by bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent transfers, reorganization, moratorium or similar laws affecting enforcement of creditors' rights generally and except as enforcement thereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law)(the "Bankruptcy Exceptions").
(ix) The issuance and delivery by the Company of the Collateral Bonds to the Trustee constitute a sale by the Company of the Collateral Bonds to the Trustee as of the Closing Date or, if not a sale, the grant by the Company to the Trustee of a perfected security interest in the Collateral Bonds for the benefit of the holders of the Senior Notes.
(x) The Secured Indenture constitutes a legally valid and direct enforceable first mortgage lien, except as the same may be limited by the laws of the State of Michigan (where all of the property covered thereby is located) affecting the remedies for the enforcement of the security provided for therein, which laws do not make inadequate the remedies necessary for the realization of the benefits of such security, or as the same may be limited by the Bankruptcy Exceptions, upon substantially all of the Company's properties and franchises, now owned or hereafter acquired, free from all prior liens, charges or encumbrances, except as set forth in subparagraph (xviii) below, and except, in the case of property hereafter acquired, any thereof existing at the time of acquisition.
(xi) The Senior Notes have been duly authorized and executed by the Company and authenticated, issued and delivered in the manner provided for in the Indenture, and constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except as the enforcement thereof may be limited by bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent transfers), reorganization, moratorium or similar laws affecting enforcement of creditors' rights generally and except as enforcement thereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law), and are in the form contemplated by, and entitled to the benefits of, the Indenture.
(xii) The Collateral Bonds have been duly authorized and executed by the Company and authenticated, issued, and delivered in the manner provided for in the Secured Indenture and have been issued and delivered to the Trustee as provided for in the Thirty-Fifth Supplemental Indenture as security for the Senior Notes, and constitute legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their terms except to the extent that enforcement thereof may be limited by the Bankruptcy Exceptions. The Collateral Bonds are in the form contemplated by, and entitled to the benefits of, the Secured Indenture.
(xiii) Neither the Company nor any of its subsidiaries is in violation of its charter or by-laws or in default in the performance or observance of any material obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of its respective subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company or any subsidiary is subject (collectively, "Agreements and Instruments") or in violation of any applicable law, rule or regulation or any judgment, order, writ or decree of any government, governmental instrumentality or court, domestic or foreign, having jurisdiction over the Company or any of its subsidiaries or any of their respective properties or assets, which violation or default would, singly or in the aggregate, have a Material Adverse Effect.
(xiv) The execution, delivery and performance of the Purchase Agreement, this Agreement, the issuance Mandatory Tender Remarketing Agreement, the Indenture, the Senior Notes, the Thirty-Fifth Supplemental Indenture, the Collateral Bonds and sale of any other agreement or instrument entered into or issued or to be entered into or issued by the Shares Company in connection with the transactions contemplated hereby or thereby; and the consummation of the transactions contemplated herein and the Prospectus (including the issuance and sale of the Shares and the use of the proceeds from the sale of the Shares as described in the Prospectus under the caption “Use of Proceeds”) therein and compliance by the Company with its obligations hereunder and under the Indenture, the Secured Indenture, the Thirty-Fifth Supplemental Indenture, the Senior Notes, and the Collateral Bonds have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or result in constitute a breach or violation of any of the terms and provisions of, constitute a or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any properties property or assets of the Company or any subsidiary pursuant to (other than the lien of its subsidiaries pursuant tothe Indenture on the Collateral Bonds), any agreementthe Agreements and Instruments (except for such conflicts, indenturebreaches or defaults or liens, mortgagecharges or encumbrances that would not result in a Material Adverse Effect), lease or other instrument to which the Company or any of its subsidiaries is a party or by which it or any of its properties or assets may be bound nor will such action result in any violation of the Company’s provisions of the charter or by-laws of the Company or any of its subsidiaries’ charter, bylaws or other organizational documents, subsidiary or any order, applicable law, statute, rule, regulation, judgment, order, writ or decree of any court government, government instrumentality or governmental agency or bodycourt, domestic or foreign, having jurisdiction over the Company or any of its subsidiaries subsidiary or any of their respective assets, properties or operations. As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any subsidiary.
(xv) 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 1934 Act Documents (other than as disclosed therein), or which might reasonably be expected to result in a Material Adverse Effect, or which might reasonably be expected to materially and adversely affect the properties or assets thereof or the consummation of the transactions contemplated in this Agreement or the performance by the Company of its subsidiariesobligations hereunder; the aggregate of all pending legal or governmental proceedings to which the Company or any subsidiary is a party or of which any of their respective property or assets is the subject which are not described in the 1934 Act Documents, including ordinary routine litigation incidental to the business, could not reasonably be expected to result in a Material Adverse Effect.
(xvi) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Company of its obligations hereunder, in connection with the remarketing of the Senior Notes hereunder or the consummation of the transactions contemplated by this Agreement or for the due execution, delivery or performance of the Indenture by the Company, except such as have or shall have been already obtained.
(xvii) No labor dispute with the employees of the Company or any of its subsidiaries exists or, to the knowledge of the Company, is imminent, and neither the Company is aware of any existing or imminent labor disturbance by the employees of any of its or any of its subsidiary's principal suppliers, manufacturers, customers or contractors which, in either case, may reasonably be expected to result in a Material Adverse Effect.
(xviii) There are no contracts or documents which are required to be described in the Registration Statement, the Prospectus or the documents incorporated by reference therein or to be filed as exhibits thereto which have not been so described and/or filed as required.
(xix) The Company has good and marketable title to the properties specifically described in and conveyed by the Secured Indenture (except such property as may have been disposed of or released from the lien thereof in accordance with the terms thereof) subject only to the lien of the Secured Indenture, to permissible encumbrances, as defined in the Secured Indenture, as to property acquired by the Company subsequent to the execution of the Original Secured Indenture, to any liens existing thereon or purchase money liens placed thereon at the time of such acquisition as permitted by the Secured Indenture, and to certain other reservations, rights of grantors under revocable permits, easements, licenses, zoning laws and ordinances and re
Appears in 1 contract
Sources: Reset Remarketing Agreement (Michigan Consolidated Gas Co /Mi/)
Representations and Warranties by the Company. The Company represents and warrants to the Sales Manager as of the date hereof and as of each Representation Date (as defined herein) on which a certificate is required to be delivered pursuant to Section 7(n) of this Agreement and as of the time of each sale of any Shares or any securities pursuant to this Agreement (the “Applicable Time”), and agrees with the Sales Manager, as follows:
(i) The Company meets the requirements for use of Form N-2 under the Securities Act and the Securities Act Rules and Regulations. At the time the Registration Statement became effective, the Registration Statement complied in all material respects with the requirements of the Securities Act and the Securities Act Rules and Regulations and did not include 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 Prospectus complied, as of its date, in all material respects, with the requirements of the Securities Act and the Securities Act Rules and Regulations as of the Applicable Time, did not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; the Prospectus, as of the date of the Prospectus Supplement, will comply in all material respects with the requirements of the Securities Act and the Securities Act Rules and Regulations, and the Prospectus, as of the date of the Prospectus Supplement and the Applicable Time, did not and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the representations and warranties in this subsection shall not apply to statements in or omissions from the Registration Statement or Prospectus or any amendments or supplements thereto made in reliance upon and in conformity with information relating to the Sales Manager furnished to the Company in writing by the Sales Manager expressly for use in the Registration Statement or Prospectus, it being understood and agreed that the only such information furnished by the Sales Manager consists of the following information in the Prospectus Supplement furnished on behalf the Sales Manager: the second sentence of the last paragraph under the caption “Plan of Distribution.” The Shares have been duly registered under the Securities Act pursuant to the Registration Statement. Each of the Registration Statement, any Rule 462(b) Registration Statement and any post-effective amendments thereto has become effective, and no order suspending the effectiveness of the Registration Statement has been issued by the Commission.
(ii) The Registration Statement has become effective; the Commission has not issued, and is not, to the knowledge of the Company, threatening to issue, any stop order under the Securities Act or other order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto, and no proceedings for such purpose have been instituted or are pending or, to the best knowledge of the Company are contemplated or threatened by the Commission.
(iii) The Company has elected to be regulated by the Commission as a business development company under the Investment Company Act of 1940, as amended (the “Investment Company Act”), and has not withdrawn that election, and the Commission has not ordered that such election be withdrawn nor to the best of the Company’s knowledge have proceedings to effectuate such withdrawal been initiated or threatened by the Commission.
(iv) To the Company’s knowledge, PricewaterhouseCoopers LLP, the accounting firm that audited the financial statements of the Company set forth in the Registration Statement and Prospectus, were and are independent registered accounting firms as required by the Securities Act and the Securities Act Rules and Regulations and the rules and regulations of the Public Company Accounting Oversight Board.
(v) The financial statements, together with the related schedules and notes thereto, of the Company set forth in the Registration Statement and the Prospectus fairly present in all material respects the results of operations and financial condition of the Company and its subsidiaries as of the dates indicated and the results of their operations for the respective periods specified, and are prepared in conformity with U.S. generally accepted accounting principles and the selected financial information and data included in the Registration Statement and the Prospectus have been prepared on a basis consistent with that of the books and records of the Company.
(vi) The Company (A) has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland, has full corporate power and authority to conduct its business as described in the Prospectus; (B) has full power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby; and (C) is duly licensed or qualified to do business as a foreign corporation and in good standing in each jurisdiction where the Company is required to be qualified or licensed or in good standing, except where the failure to be so qualified or licensed or to be in good standing would not result in a material adverse effect upon the financial condition, business or operations of the Company and its subsidiaries, taken as a whole (“Material Adverse Effect”).
(vii) The Company is not, or with the giving of notice or lapse of time or both would not be, in default or violation with respect to its charter or bylaws or governing documents. The Company is not, or with the giving of notice or lapse of time or both would not be, in default in the performance or observance of any obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which the Company is a party or by which the Company is bound or to which any of the properties or assets of the Company is subject, or in violation of any statutes, laws, ordinances or governmental rules or regulations or any orders or decrees to which it is subject.
(viii) The Company’s authorized capitalization is as set forth in the Prospectus; the outstanding shares of Common Stock have been duly authorized and validly issued and are fully paid and non-assessable and conform in all material respects to the description thereof in the Prospectus under the heading “Description of Capital Stock;” the Shares have been duly authorized by all requisite corporate action on the part of the Company for the issuance and sale of the Shares to the Sales Manager pursuant to this Agreement and, when the Shares are delivered and paid for pursuant to this Agreement on the Applicable Time, such Shares will have been validly issued and fully paid and non-assessable. The stockholders of the Company have no preemptive rights with respect to the Shares and none of the outstanding shares of capital stock of the Company have been issued in violation of any preemptive rights of any security holder.
(ix) Except as set forth in the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, (A) the Company and its subsidiaries have not incurred any liabilities or obligations, direct or contingent, or entered into any transactions, other than in the ordinary course of business, that are material to the Company and its subsidiaries taken as a whole, (B) there has not been any material change in the capital stock of the Company, or any material adverse change, or, to the Company’s knowledge, any development involving a prospective material adverse change, in the condition (financial or otherwise), business, net worth, property or results of operations of the Company (excluding changes due to investment activities in the ordinary course of business), (C) there has been no dividend or distribution declared or paid in respect of the Company’s capital stock and (D) the Company and its subsidiaries have not incurred any short-term debt or long-term debt that is, in either case, material with respect to the Company and its subsidiaries taken as a whole (excluding debt resulting from a draw down on the Company’s credit facilities).
(x) There is no pending or, to the knowledge of the Company, threatened action, suit or proceeding, legal or governmental, to which the Company or any of its subsidiaries is a party, before or by any court or governmental agency or body, that is required to be described in the Prospectus and is not so described.
(xi) There Notwithstanding this Agreement or the [Name of Other Sales Manager] Agreement, there are no contracts, agreements or understandings of the Company or any of its subsidiaries that are required to be filed as exhibits to the Registration Statement by the Securities Act or by the Securities Act Rules and Regulations that have not been so filed or incorporated by reference therein as permitted by the Securities Act Rules and Regulations.
(xii) This Agreement has been duly authorized, executed and delivered by the Company.
(xiii) The execution, delivery and performance of this Agreement, the issuance and sale of the Shares and the consummation of the transactions contemplated herein and the Prospectus (including the issuance and sale of the Shares and the use of the proceeds from the sale of the Shares as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or result in a breach or violation of any of the terms and provisions of, constitute a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any of its subsidiaries pursuant to, any agreement, indenture, mortgage, lease or other instrument to which the Company or any of its subsidiaries is a party or by which it or any of its properties or assets may be bound nor will such action result in any violation of the Company’s or any of its subsidiaries’ charter, bylaws or other organizational documents, or any order, law, statute, rule, regulation, judgment, order, writ or decree of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Company or any of its subsidiaries or any of their respective assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its subsidiaries.
Appears in 1 contract
Sources: Equity Distribution Agreement (Hercules Capital, Inc.)
Representations and Warranties by the Company. The --------------------------------------------- Company represents and warrants to the Sales Manager as of the date hereof and as of each Representation Date (as defined herein) on which a certificate is required to be delivered pursuant to Section 7(n) of this Agreement and as of the time of each sale of any Shares or any securities pursuant to this Agreement (the “Applicable Time”), and agrees with the Sales Manager, Underwriters as follows:
(ia) The Company meets the requirements for use of Form N-2 under the Securities Act Registration Statement and the Securities Act Rules and Regulations. At Prospectus, at the time the Registration Statement became effectiveeffective and as of the date hereof, the Registration Statement complied in all material respects with the requirements of the Securities 1933 Act, the rules and regulations of the Commission thereunder (the "Regulations") and the Trust Indenture Act of 1939 (the "1939 Act"). The Registration Statement and the Prospectus, at the time the Registration Statement became effective and as of the date hereof, do not contain, and as of the Closing Time 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, however, that the representations and warranties in this subsection shall not apply to (i) statements in or omissions from the Registration Statement or Prospectus made in reliance upon and in conformity with information furnished to the Company in writing by any Underwriter through the Representatives expressly for use in the Registration Statement or Prospectus or (ii) that part of the Registration Statement that shall constitute the Statement of Eligibility and Qualification of the Trustee under the 1939 Act on Form T- 1.
(b) The financial statements and the supporting schedules included in the Registration Statement and Prospectus present fairly the financial position of the Company and its subsidiaries on a consolidated basis, as of the dates indicated, and the respective results of operations for the periods specified, in conformity with generally accepted accounting principles applied on a consistent basis during the periods involved.
(c) The documents incorporated by reference in the Prospectus, at the time they were or hereafter are filed with the Commission, complied and will comply, as the case may be, in all material respects with the requirements of the 1934 Act and the Securities Act Rules rules and Regulations regulations thereunder, and, when read together and with the other information in the Prospectus, at the time the Registration Statement became effective and at the time any amendments thereto become effective or hereafter during the periods specified in Section 3(b), did not include any 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 Prospectus complied, as of its date, in all material respects, with the requirements of the Securities Act and the Securities Act Rules and Regulations as of the Applicable Time, did not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were are made, not misleading; .
(d) Since the Prospectus, respective dates as of which information is given in the date of the Prospectus Supplement, will comply in all material respects with the requirements of the Securities Act and the Securities Act Rules and Regulations, Registration Statement and the Prospectus, except as of the date of the Prospectus Supplement and the Applicable Time, did not and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the representations and warranties in this subsection shall not apply to statements may otherwise be stated in or omissions from the Registration Statement or Prospectus or any amendments or supplements thereto made in reliance upon and in conformity with information relating to the Sales Manager furnished to the Company in writing contemplated by the Sales Manager expressly for use in the Registration Statement or Prospectus, it being understood and agreed that the only such information furnished by the Sales Manager consists of the following information in the Prospectus Supplement furnished on behalf the Sales Manager: the last paragraph under the caption “Plan of Distribution.” The Shares have been duly registered under the Securities Act pursuant to the Registration Statement. Each of the Registration Statement, any Rule 462(b) Registration Statement and any post-effective amendments thereto has become effective, and no order suspending the effectiveness of the Registration Statement has been issued by the Commission.
(ii) The Registration Statement has become effective; the Commission has not issued, and is not, to the knowledge of the Company, threatening to issue, any stop order under the Securities Act or other order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto, and no proceedings for such purpose have been instituted or are pending or, to the best knowledge of the Company are contemplated or threatened by the Commission.
(iii) The Company has elected to be regulated by the Commission as a business development company under the Investment Company Act of 1940, as amended (the “Investment Company Act”), and has not withdrawn that election, and the Commission has not ordered that such election be withdrawn nor to the best of the Company’s knowledge have proceedings to effectuate such withdrawal been initiated or threatened by the Commission.
(iv) To the Company’s knowledge, PricewaterhouseCoopers LLP, the accounting firm that audited the financial statements of the Company set forth in the Registration Statement and Prospectus, were and are independent registered accounting firms as required by the Securities Act and the Securities Act Rules and Regulations and the rules and regulations of the Public Company Accounting Oversight Board.
(v) The financial statements, together with the related schedules and notes thereto, of the Company set forth there has not been any material adverse change in the Registration Statement and the Prospectus fairly present in all material respects the results of operations and financial condition of the Company and its subsidiaries considered as of the dates indicated and one enterprise, or in the results of their operations for or business prospects of the respective periods specifiedCompany and its subsidiaries considered as one enterprise, and are prepared in conformity with U.S. generally accepted accounting principles and the selected financial information and data included whether or not arising in the Registration Statement and the Prospectus have been prepared on a basis consistent with that ordinary course of the books and records of the Companybusiness.
(vie) The Company (A) has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland, has full corporate Delaware with power and authority to own, lease and operate its properties and conduct its business as described in the Prospectus; (B) has full power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby; and (C) is duly licensed or qualified to do business as a foreign corporation and in good standing in each jurisdiction where the Company is required to be qualified or licensed or in good standing, except where the failure to be so qualified or licensed or to be in good standing would not result in a material adverse effect upon the financial condition, business or operations of the Company and its subsidiaries, taken as a whole (“Material Adverse Effect”)Registration Statement.
(viif) The Company is not, or with the giving execution and delivery of notice or lapse of time or both would not be, in default or violation with respect to its charter or bylaws or governing documents. The Company is not, or with the giving of notice or lapse of time or both would not be, in default in the performance or observance of any obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which the Company is a party or by which the Company is bound or to which any of the properties or assets of the Company is subject, or in violation of any statutes, laws, ordinances or governmental rules or regulations or any orders or decrees to which it is subject.
(viii) The Company’s authorized capitalization is as set forth in the Prospectus; the outstanding shares of Common Stock have been duly authorized and validly issued and are fully paid and non-assessable and conform in all material respects to the description thereof in the Prospectus under the heading “Description of Capital Stock;” the Shares have been duly authorized by all requisite corporate action on the part of the Company for the issuance and sale of the Shares to the Sales Manager pursuant to this Agreement and, when the Shares are delivered and paid for pursuant to this Agreement on the Applicable Time, such Shares will have been validly issued and fully paid and non-assessable. The stockholders of the Company have no preemptive rights with respect to the Shares and none of the outstanding shares of capital stock of the Company have been issued in violation of any preemptive rights of any security holder.
(ix) Except as set forth in the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, (A) the Company and its subsidiaries have not incurred any liabilities or obligations, direct or contingent, or entered into any transactions, other than in the ordinary course of business, that are material to the Company and its subsidiaries taken as a whole, (B) there has not been any material change in the capital stock of the Company, or any material adverse change, or, to the Company’s knowledge, any development involving a prospective material adverse change, in the condition (financial or otherwise), business, net worth, property or results of operations of the Company (excluding changes due to investment activities in the ordinary course of business), (C) there has been no dividend or distribution declared or paid in respect of the Company’s capital stock and (D) the Company and its subsidiaries have not incurred any short-term debt or long-term debt that is, in either case, material with respect to the Company and its subsidiaries taken as a whole (excluding debt resulting from a draw down on the Company’s credit facilities).
(x) There is no pending or, to the knowledge of the Company, threatened action, suit or proceeding, legal or governmental, to which the Company or any of its subsidiaries is a party, before or by any court or governmental agency or body, that is required to be described in the Prospectus and is not so described.
(xi) There are no contracts, agreements or understandings of the Company or any of its subsidiaries that are required to be filed as exhibits to the Registration Statement by the Securities Act or by the Securities Act Rules and Regulations that have not been so filed or incorporated by reference therein as permitted by the Securities Act Rules and Regulations.
(xii) This Agreement has been duly authorized, executed and delivered by the Company.
(xiii) The execution, delivery and performance of this Agreement, the issuance and sale of the Shares and the consummation of the transactions contemplated herein and the Prospectus (including the issuance and sale of the Shares and the use of the proceeds from the sale of the Shares as described in the Prospectus under the caption “Use of Proceeds”) and compliance herein, have been duly authorized by the Company with its obligations hereunder do not all necessary corporate action and will not, whether with or without the giving of notice or passage of time or both, conflict with or not result in a any breach or violation of any of the terms and terms, conditions or provisions of, or constitute a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any properties property or assets of the Company or Company, pursuant to any of its subsidiaries pursuant toindenture, any loan agreement, indenture, mortgage, lease contract or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which it or any of its properties or assets the Company may be bound or to which any of the property or assets of the Company is subject, nor will such action result in any violation of the Company’s provisions of the charter or any by-laws of the Company or, to the best of its subsidiaries’ charterknowledge, bylaws or other organizational documents, or any order, law, statute, rule, regulation, judgment, order, writ rule or decree regulation applicable to the Company of any court or of any federal, state or other regulatory authority or other governmental agency or body, domestic or foreign, body having jurisdiction over the Company.
(g) The description of the authorized, issued and outstanding capital stock of the Company or any under "Description of its subsidiaries or any Capital Stock" and "Capitalization" in the Prospectus is accurate as of their respective assetsthe date indicated in such sections.
(h) The Shares have been duly authorized for issuance and sale pursuant to this Agreement and such Shares, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness when issued and delivered by the Company pursuant to this Agreement against payment of the consideration set forth in this Agreement, will be validly issued, fully paid and non- assessable and the issuance of the Shares is not subject to preemptive or other similar rights.
(i) If the Shares consist of shares of Common Stock or shares of Preferred Stock that are convertible into shares of Common Stock, the shares of issued and outstanding capital stock of the Company have been duly authorized and validly issued and are fully paid and non-assessable, and such capital stock conforms in all material respects as to legal matters to the description thereof in the Prospectus.
(j) If the Shares consist of shares of Preferred Stock that are convertible into shares of Common Stock, the shares of Common Stock issuable upon conversion of such Preferred Stock have been duly authorized and reserved for issuance upon such conversion by all necessary corporate action and, when issued upon conversion, will be validly issued, fully paid and non-assessable, and the issuance of such shares of Common Stock upon such conversion will not be subject to preemptive or other similar rights.
(k) PricewaterhouseCoopers LLP are independent certified public accountants as required by the 1933 Act and the Regulations. Any certificate signed by any officer of its subsidiariesthe Company and delivered to the Representatives or counsel for the Underwriters in connection with an offering of the Shares shall be deemed a representation and warranty by the Company, as to the matters covered thereby, to each Underwriter participating in such offering.
Appears in 1 contract
Representations and Warranties by the Company. The Company represents and warrants to the Sales Manager each Underwriter as of the date hereof hereof, as of the Closing Time referred to in Section 2(c) hereof, and as of each Representation Date of Delivery (as defined hereinif any) on which a certificate is required referred to be delivered pursuant to in Section 7(n2(b) of this Agreement and as of the time of each sale of any Shares or any securities pursuant to this Agreement (the “Applicable Time”)hereof, and agrees with the Sales Managereach Underwriter, as follows:
(i) The Company meets the requirements for use of Form N-2 S-3 under the Securities 1933 Act. Each of the Registration Statement, any Rule 462(b) Registration Statement and any post-effective amendment thereto has become effective under the 1933 Act and no stop order suspending the Securities effectiveness of the Registration Statement, any Rule 462(b) Registration Statement or any post-effective amendment thereto has been issued under the 1933 Act Rules and Regulationsno 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. At the time respective times the Registration Statement, any Rule 462(b) Registration Statement and any post-effective amendments thereto became effectiveeffective and at the Closing Time (and, if any Option Securities are purchased, at the Date of Delivery), the Registration Statement, the 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 1933 Act and the Securities 1933 Act Rules and Regulations and did not include any 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; . Neither the Prospectus compliednor any amendments or supplements thereto, as at the time the Prospectus or any such amendment or supplement was issued and at the Closing Time (and, if any Option Securities are purchased, at the Date of its dateDelivery), in all material respects, with the requirements of the Securities Act and the Securities Act Rules and Regulations as of the Applicable Time, did not contain any 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 Prospectus, as of the date of the Prospectus Supplement, will comply in all material respects with the requirements of the Securities Act and the Securities Act Rules and Regulations, and the Prospectus, as of the date of the Prospectus Supplement and the Applicable Time, did not and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the . The representations and warranties in this subsection shall not apply to statements in or omissions from the Registration Statement or Prospectus or any amendments or supplements thereto made in reliance upon and in conformity with written information relating to the Sales Manager furnished to the Company in writing by the Sales Manager any Underwriter through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use in the Registration Statement (or Prospectus, it being understood and agreed that the only such information furnished by the Sales Manager consists of the following information in any amendment thereto) or the Prospectus Supplement furnished on behalf the Sales Manager: the last paragraph under the caption “Plan of Distribution.” (or any amendment or supplement thereto). The Shares have been duly registered under the Securities Act pursuant to the Registration Statement. Each of the Registration Statement, any Rule 462(b) Registration Statement and any post-effective amendments thereto has become effective, and no 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, complied when so filed in all material respects with the 1933 Act Regulations 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 ▇▇▇▇▇, except to the extent permitted by the Commission.Regulation S-T.
(ii) The Registration Statement has become effective; the Commission has not issued, and is not, documents incorporated or deemed to the knowledge of the Company, threatening to issue, any stop order under the Securities Act or other order suspending the effectiveness of be incorporated by reference in the Registration Statement and the Prospectus, when they became effective or any post-effective amendment theretoat the time they were or hereafter are filed with the Commission, complied and no proceedings for such purpose have been instituted or are pending or, to will comply in all material respects with the best knowledge requirements of the Company 1933 Act and the 1933 Act Regulations or the 1934 Act and the rules and regulations of the Commission thereunder (the "1934 Act Regulations"), as applicable, and, when read together with the other information in the Prospectus, at the time the Registration Statement became effective, at the time the Prospectus was issued and at the Closing Time (and if any Option Securities are contemplated purchased, at the Date of Delivery), did not and will not contain an untrue statement of a material fact or threatened by omit to state a material fact required to be stated therein or necessary to make the Commissionstatements therein not misleading.
(iii) The Company has elected to be regulated by the Commission as a business development company under the Investment Company Act of 1940, as amended (the “Investment Company Act”), and has not withdrawn that election, and the Commission has not ordered that such election be withdrawn nor to the best of the Company’s knowledge have proceedings to effectuate such withdrawal been initiated or threatened by the Commission.
(iv) To the Company’s knowledge, PricewaterhouseCoopers LLP, the accounting firm that audited which certified the financial statements of the Company set forth and supporting schedules included in the Registration Statement and ProspectusStatement, were and are is an independent registered public accounting firms as required by firm within the Securities meaning of the 1933 Act and the Securities 1933 Act Rules and Regulations and the rules and regulations of the Public Company Accounting Oversight Board, for the periods so reported.
(viv) The financial statementsstatements included in the Registration Statement and the Prospectus, together with the related schedules and notes theretonotes, of present fairly the Company set forth in the Registration Statement and the Prospectus fairly present in all material respects the results of operations and financial condition position of the Company and its consolidated subsidiaries as of at the dates indicated and the results statement of their operations operations, stockholders' equity and cash flows of the Company and its consolidated subsidiaries for the respective periods specified, and are ; said financial statements have been prepared in conformity with U.S. generally accepted accounting principles ("GAAP") applied on a consistent basis throughout the periods involved and comply as to form with the applicable accounting requirements of the 1933 Act and the selected financial information and data 1933 Act Regulations. The supporting schedules, if any, included in the Registration Statement present fairly in accordance with GAAP the information required to be stated therein. The selected financial data and the summary financial information included in the Prospectus present fairly the information shown therein and have been prepared compiled on a basis consistent with that of the books audited financial statements included in the Registration Statement.
(v) There are no contracts or documents which are required to be described in the Registration Statement, the Prospectus or the documents incorporated by reference therein or to be filed as exhibits thereto which have not been so described and records of the Companyfiled as required.
(vi) The Company (A) has been duly incorporated or organized and is validly existing as a corporation in good standing under the laws of the State of Maryland, has full corporate jurisdiction in which it is chartered or organized with all requisite power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Prospectus; (B) has full power , and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby; and (C) is duly licensed or qualified to do business as a foreign corporation or organization and is in good standing in under the laws of each jurisdiction where which requires such qualification, whether by reason of the Company is required to be qualified ownership or licensed leasing of property or in good standingthe conduct of business, except where the failure so to be so qualified or licensed qualify or to be in good standing would not result in a material adverse effect upon the financial condition, business or operations of the Company and its subsidiaries, taken as a whole (“Material Adverse Effect”).
(vii) The Company is not, or with the giving of notice or lapse of time or both Except as would not beresult in a Material Adverse Effect, in default or violation with respect to its charter or bylaws or governing documents. The Company is not, or with the giving of notice or lapse of time or both would not be, in default in the performance or observance of any obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which the Company is a party or by which the Company is bound or to which any each of the properties Company's subsidiaries: (A) has been duly incorporated or assets organized, (B) is validly existing in good standing under the laws of the Company is subject, or jurisdiction in violation of any statutes, laws, ordinances or governmental rules or regulations or any orders or decrees to which it is subjectchartered or organized with all requisite power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Prospectus, and (C) is duly qualified to do business as a foreign corporation or organization and is in good standing under the laws of each jurisdiction which requires such qualification, whether by reason of the ownership or leasing of property or the conduct of business.
(viii) The Company’s authorized capitalization 's authorized, issued and outstanding capital stock as of September 30, 2004 is as set forth in the ProspectusProspectus Supplement in the column titled "Actual" under the caption "Capitalization "; the outstanding shares of Common Stock capital stock of the Company have been duly and validly authorized and validly issued and are fully paid and non-assessable and conform in all material respects to the description thereof in the Prospectus under the heading “Description of Capital Stock;” the Shares have been duly authorized by all requisite corporate action on the part of the Company for the issuance and sale of the Shares to the Sales Manager pursuant to this Agreement and, when the Shares are delivered and paid for pursuant to this Agreement on the Applicable Time, such Shares will have been validly issued and fully paid and non-assessable. The stockholders of the Company have no preemptive rights with respect to the Shares nonassessable; and none of the outstanding shares of capital stock of the Company have been was issued in violation of any the preemptive or similar rights of any security holdersecurityholder of the Company.
(ix) Except as would not result in a Material Adverse Effect: (A) all the outstanding shares of capital stock of each of the Company's subsidiaries have been duly and validly authorized and issued and are fully paid and nonassessable, and (B) except as may be otherwise set forth in the Prospectus, subsequent to the respective dates as all outstanding shares of which information is given in the Registration Statement and the Prospectus, (A) the Company and its subsidiaries have not incurred any liabilities or obligations, direct or contingent, or entered into any transactions, other than in the ordinary course of business, that are material to the Company and its subsidiaries taken as a whole, (B) there has not been any material change in the capital stock of the Company, or any material adverse change, or, to the Company’s knowledge, any development involving a prospective material adverse change, in the condition (financial or otherwise), business, net worth, property or results of operations of such subsidiaries are owned by the Company (excluding changes due to investment activities in the ordinary course either directly or through wholly owned subsidiaries free and clear of business)any security interest, (C) there has been no dividend mortgage, pledge, lien, encumbrance or distribution declared or paid in respect of the Company’s capital stock and (D) the Company and its subsidiaries have not incurred any short-term debt or long-term debt that is, in either case, material with respect to the Company and its subsidiaries taken as a whole (excluding debt resulting from a draw down on the Company’s credit facilities)claim.
(x) There is no pending or, to the knowledge All subsidiaries of the Company, threatened action, suit or proceeding, legal or governmental, to which the Company or any of its other than subsidiaries is a party, before or by any court or governmental agency or body, that is required to be described considered in the Prospectus and is aggregate as a single subsidiary, do not so describedconstitute a "significant subsidiary" as defined in Rule 1-02 of Regulation S-X, are listed on Schedule C hereto.
(xi) There are no contractsThe Securities have been duly authorized for issuance and sale to the Underwriters pursuant to this Agreement and, agreements or understandings when issued and delivered by the Company pursuant to this Agreement against payment of the Company or any of its subsidiaries that are required consideration set forth herein, will be validly issued, fully paid and non-assessable; the Common Stock conforms to be filed as exhibits all statements relating thereto contained in the Prospectus and such description conforms to the Registration Statement by rights set forth in the instruments defining the same; no holder of the Securities Act or will be subject to personal liability by reason of being such a holder; and the issuance of the Securities Act Rules and Regulations that have is not been so filed subject to the preemptive or incorporated by reference therein as permitted by other similar rights of any securityholder of the Securities Act Rules and RegulationsCompany.
(xii) This Agreement has been duly authorized, executed and delivered by the Company.
(xiii) The issued and outstanding capital stock of the Company conforms, and the Securities, upon their issuance and sale in accordance with this Agreement will conform, in all material respects to the description of thereof in the Prospectus under the caption "Description of capital Stock".
(xiv) The Company is not and, after giving effect to the offering and sale of the 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" as such terms are defined in the Investment Company Act of 1940, as amended.
(xv) No consent, approval, authorization, order, registration or qualification with any court or governmental agency or body is required for the performance by the Company of its obligations hereunder in connection with the offering, issuance or sale of the Securities or in connection with the consummation of the transactions contemplated by this Agreement, except such as have been already obtained or will have been obtained prior to the Closing Time.
(xvi) The execution, delivery and performance of this Agreement, the issuance and sale of the Shares Agreement and the consummation of the transactions contemplated herein and in the Prospectus (including the issuance and sale of the Shares Securities and the use of the proceeds from the sale of the Shares Securities as described in the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company with its obligations hereunder will have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or with, result in a breach or violation of any of the terms and provisions of, constitute a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any properties property or assets of the Company or any of its subsidiaries pursuant toto (i) the charter or by-laws of the Company (ii) the charter or by-laws (or other similar documents) of any of the Company's subsidiaries; (iii) the terms of any indenture, any agreementcontract, indenturelease, mortgage, lease 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 by bound or to which it its or their property is subject; or (iv) any of its properties or assets may be bound nor will such action result in any violation of the Company’s or any of its subsidiaries’ charter, bylaws or other organizational documents, or any orderstatute, law, statute, rule, regulation, judgment, order, writ order or decree applicable to the Company or any of its subsidiaries of any court or governmental agency or court, regulatory body, domestic administrative agency, governmental body, arbitrator or foreign, other authority having jurisdiction over the Company or any of its subsidiaries or any of its or their assets, properties, or operations; except in the cases of clauses (ii) through (iv) as would not result in a Material Adverse Effect.
(xvii) 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 that (i) could reasonably be expected to result in a material adverse effect on the performance of this Agreement or the consummation of any of the transactions contemplated hereby or (ii) could reasonably be expected to result in a Material Adverse Effect; the aggregate of all pending legal or governmental proceedings to which the Company or any subsidiary is a party or of which any of their respective assetsproperty or assets is the subject which are not described in the Prospectus, including ordinary routine litigation incidental to the business, could not reasonably be expected to result in a Material Adverse Effect; and no labor disturbance by or dispute with the employees of the Company or any of its subsidiaries exists or is, to the best knowledge of the Company, threatened or imminent that could reasonably be expected to have a Material Adverse Effect.
(xviii) Each of the Company and each of its subsidiaries has good and marketable title to all real property owned by them respectively and good title to all other properties owned by them respectively, in each case, free and clear of all mortgages, pledges, liens, security interests, claims, restrictions or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder encumbrances of any note, debenture kind except such as (a) are described in the Prospectus or other evidence of indebtedness (or any person acting on such holder’s behalfb) do not in the right to require aggregate materially affect the repurchase, redemption or repayment of all or a portion value of such indebtedness property and do not interfere with the use made and proposed to be made of such property by the Company or any of its subsidiaries; each of the Company and each of its subsidiaries owns or leases all such properties as are necessary to the conduct of its operations as presently conducted; neither the Company nor any subsidiary is in non-compliance with any term or condition of, or has failed to obtain and maintain in effect, any license, certificate, permit or other governmental authorization required for the ownership or lease of its property or the conduct of its business, which violation, noncompliance or failure would individually or in the aggregate have a Material Adverse Effect and the Company has not received notice of any proceedings relating to the revocation or modification of any such license, certificate, permit or other authorization, which revocation or material modification could reasonably be expected to have a Material Adverse Effect.
(A) The Company is not in violation or default of any provision of its charter or by-laws, (B) none of the Company's subsidiaries is in violation or default of any provision of its charter or by-laws (or other similar documents) and (C) neither the Company nor any subsidiary is in violation or default of (I) 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 it is a party or bound or to which its property is subject, or (II) any statute, law, rule, regulation, judgment, order or decree of any Federal, state, local or foreign court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or such subsidiary or any of its or their properties, as applicable, which violation or default, in the case of clauses (B) and (C), would have a Material Adverse Effect.
(xx) The Company has filed all foreign, federal, state and local tax returns that are required to be filed or has requested extensions thereof (except in any case in which the failure so to file would not have a Material Adverse Effect) and has paid all taxes required to be paid by it and any other assessment, fine or penalty levied against it, to the extent that any of the foregoing is due and payable, except for any such assessment, fine or penalty that is currently being contested in good faith or as would not have a Material Adverse Effect.
(xxi) The Company and its subsidiaries, as an entity, are insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as are prudent and customary in the businesses in which they are engaged; neither the Company nor any such subsidiary has been refused any insurance coverage sought or applied for; and neither the Company nor any such subsidiary has any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires, should it elect to do so, or to obtain similar coverage from similar insurers as may be necessar
Appears in 1 contract
Sources: Purchase Agreement (Legg Mason Inc)
Representations and Warranties by the Company. The Company represents and warrants to the Sales Manager each Underwriter as of the date hereof hereof, as of the Closing Time referred to in Section 2(c) hereof, and as of each Representation Date of Delivery (as defined hereinif any) on which a certificate is required referred to be delivered pursuant to in Section 7(n2(b) of this Agreement and as of the time of each sale of any Shares or any securities pursuant to this Agreement (the “Applicable Time”)hereof, and agrees with the Sales Managereach Underwriter, as follows:
(i) The Company meets the requirements for use of Form N-2 S-3 under the Securities 1933 Act. Each of the Registration Statement and any Rule 462(b) Registration Statement has become effective under the 1933 Act and no stop order suspending the Securities effectiveness of the Registration Statement or any Rule 462(b) Registration Statement has been issued under the 1933 Act Rules and Regulationsno 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. At the time respective times the Registration Statement, any Rule 462(b) Registration Statement and any post-effective amendments thereto became effectiveeffective and at the Closing Time (and, if any Option Securities are purchased, at the Date of Delivery), the Registration Statement, the 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 1933 Act and the Securities 1933 Act Rules and Regulations and did not include any 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; . Neither the Prospectus compliednor any amendments or supplements thereto, as at the time the Prospectus or any such amendment or supplement was issued and at the Closing Time (and, if any Option Securities are purchased, at the Date of its dateDelivery), in all material respects, with the requirements of the Securities Act and the Securities Act Rules and Regulations as of the Applicable Time, did not contain any 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; . If Rule 434 is used, the Prospectus, Company will comply with the requirements of Rule 434. The representations Each preliminary prospectus and the prospectus filed as part of the date Registration Statement as originally filed or as part of any amendment thereto, or filed pursuant to Rule 424 under the Prospectus Supplement1933 Act, will comply complied when so filed in all material respects with the requirements of the Securities 1933 Act Regulations and each preliminary prospectus and the Securities Act Rules and Regulations, and the Prospectus, as of the date of the Prospectus Supplement and the Applicable Time, did not and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the representations and warranties in this subsection shall not apply to statements in or omissions from the Registration Statement or Prospectus or any amendments or supplements thereto made in reliance upon and in conformity with information relating delivered to the Sales Manager furnished to the Company in writing by the Sales Manager expressly Underwriters for use in connection with this offering was identical to the Registration Statement or Prospectus, it being understood and agreed that electronically transmitted copies thereof filed with the only such information furnished by the Sales Manager consists of the following information in the Prospectus Supplement furnished on behalf the Sales Manager: the last paragraph under the caption “Plan of Distribution.” The Shares have been duly registered under the Securities Act Commission pursuant to EDGA▇, ▇▇cept to the Registration Statement. Each of the Registration Statement, any Rule 462(b) Registration Statement and any postextent permitted by Regulation S-effective amendments thereto has become effective, and no order suspending the effectiveness of the Registration Statement has been issued by the Commission.T.
(ii) The Registration Statement has become effective; accountants who certified the Commission has not issued, financial statements and is not, to the knowledge of the Company, threatening to issue, any stop order under the Securities Act supporting schedules included or other order suspending the effectiveness of incorporated by reference in the Registration Statement or any post-effective amendment thereto, and no proceedings for such purpose have been instituted or are pending or, to the best knowledge of the Company are contemplated or threatened independent public accountants as required by the Commission1933 Act and the 1933 Act Regulations.
(iii) The Company has elected to be regulated by the Commission as a business development company under the Investment Company Act of 1940, as amended (the “Investment Company Act”), and has not withdrawn that election, and the Commission has not ordered that such election be withdrawn nor to the best of the Company’s knowledge have proceedings to effectuate such withdrawal been initiated or threatened by the Commission.
(iv) To the Company’s knowledge, PricewaterhouseCoopers LLP, the accounting firm that audited the financial statements of the Company set forth included or incorporated by reference in the Registration Statement and the Prospectus, were and are independent registered accounting firms as required by the Securities Act and the Securities Act Rules and Regulations and the rules and regulations of the Public Company Accounting Oversight Board.
(v) The financial statements, together with the related schedules and notes theretonotes, present fairly the financial position of the Company set forth in (and, for relevant periods consistent with the Registration Statement Commission's rules and regulations, the Prospectus fairly present in all material respects Company's subsidiaries, (1) Health Script Pharmacy Services, Inc., a Colorado corporation ("Health Script"), (2) Healthco Solutions, Inc., a Colorado corporation ("Healthco") and (3) Dura Delivery Systems, Inc., a Delaware corporation ("DDSI") (Health Script, Healthco and DDSI are hereinafter referred to as the results of operations and financial condition of the Company and its subsidiaries as of "Subsidiaries")) at the dates indicated and the results statements of their operations operations, shareholders' equity and cash flows of the Company (and, for relevant periods consistent with the Commission's rules and regulations, each of the Subsidiaries) for the respective periods specified; except as otherwise stated in the Registration Statement, and are said financial statements have been prepared in conformity with U.S. generally accepted accounting principles and ("GAAP") applied on a consistent basis throughout the selected financial information and data periods involved. The supporting schedules, if any, included in the Registration Statement present fairly, in accordance with GAAP, the information required to be stated therein. The selected financial data and the summary financial information included in the Prospectus present fairly, in accordance with GAAP, the information shown therein and have been prepared compiled on a basis consistent with that of the books and records audited financial statements included in the Registration Statement. The pro forma financial statements of the CompanyCompany and the Subsidiaries and the related notes thereto included or incorporated by reference in the Registration Statement and the Prospectus present fairly, in accordance with GAAP, the information shown therein, have been prepared in accordance with the Commission's rules and guidelines with respect to pro forma financial statements and have been properly compiled on the bases described therein, and the
(iv) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, except as otherwise stated therein, (A) there has been no material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and the Subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business, (B) there have been no transactions entered into by the Company or any Subsidiary, other than those in the ordinary course of business, which are material with respect to the Company and the Subsidiaries considered as one enterprise, and (C) there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock.
(viv) The Company (A) has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland, California and has full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus; (B) has full power and authority to execute and deliver this Agreement Prospectus and to consummate the transactions contemplated herebyenter into and perform its obligations under this Agreement; and (C) the Company is duly licensed or qualified to do business as a foreign corporation to transact business and is in good standing in each other jurisdiction where in which such qualification is required, whether by reason of the Company is required to be qualified ownership or licensed leasing of property or in good standingthe conduct of business, except where the failure so to be so qualified or licensed qualify or to be in good standing would not result in have a material adverse effect upon on the financial condition, financial or otherwise, or the earnings, business affairs or operations business prospects of the Company and its subsidiariesthe Subsidiaries considered as one enterprise.
(vi) Except for (A) the shares of capital stock of Health Script owned by the Company, taken (B) the shares of capital stock of Healthco owned by the Company, (C) the shares of capital stock of DDSI owned by the Company and (D) the shares of capital stock of Houghten Pharmaceuticals, Inc., owned by the Company, neither the Company nor any Subsidiary owns any shares of stock or any other equity securities of any corporation or has any equity interest in any firm, partnership, association or other entity. Each Subsidiary has been duly incorporated and is validly existing as a whole (“Material Adverse Effect”).corporation in good standing under the laws of the jurisdiction of its incorporation, has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus and is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so to qualify or to be in good standing would not have a material adverse effect on the condition, financial or otherwise, or the earnings, business affairs or business prospects of the Company and the
(vii) The authorized, issued and outstanding capital stock of the Company is notas set forth in the Prospectus in the column entitled "Actual" under the caption "Capitalization" (except for subsequent issuances, if any, pursuant to this Agreement, pursuant to employee benefit plans referred to in the Prospectus or with incorporated therein by reference or pursuant to the giving exercise of notice convertible securities or lapse options referred to in the Prospectus); the shares of time issued and outstanding Common Stock have been duly authorized and validly issued and are fully paid and non-assessable; and none of the outstanding shares of Common Stock of the Company was issued in violation of the preemptive or both other similar rights of any securityholder of the Company arising by operation of law, under the charter or by-laws of the Company or under any agreement to which the Company or any Subsidiary is a party. The Securities have been duly authorized for issuance and sale to the Underwriters pursuant to this Agreement and, when issued and delivered by the Company pursuant to this Agreement against payment of the consideration set forth herein, will be validly issued and fully paid and non-assessable; the Common Stock conforms to all statements relating thereto contained in the Prospectus; no holder of the Securities will be subject to personal liability by reason of being such a holder; and the issuance of the Securities is not subject to preemptive or other similar rights of any securityholder of the Company arising by operation of law, under the charter and by-laws of the Company or under any agreement to which the Company or any Subsidiary is a party.
(viii) Neither the Company nor any Subsidiary is in violation of its charter or, except as disclosed in the Prospectus and except as to violations which individually or in the aggregate would not be, in default or violation with respect be material to its charter or bylaws or governing documents. The the Company is not, or with and the giving of notice or lapse of time or both would not beSubsidiaries considered as one enterprise, in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any Subsidiary is a party or by which the Company is bound any of them may be bound, or to which any of the properties property or assets of the Company or any Subsidiary is subject, or in violation of any statutes, laws, ordinances or governmental rules or regulations or any orders or decrees to which it is subject.
(viii) The Company’s authorized capitalization is as set forth in the Prospectus; the outstanding shares of Common Stock have been duly authorized and validly issued and are fully paid and non-assessable and conform in all material respects to the description thereof in the Prospectus under the heading “Description of Capital Stock;” the Shares have been duly authorized by all requisite corporate action on the part of the Company for the issuance and sale of the Shares to the Sales Manager pursuant to this Agreement and, when the Shares are delivered and paid for pursuant to this Agreement on the Applicable Time, such Shares will have been validly issued and fully paid and non-assessable. The stockholders of the Company have no preemptive rights with respect to the Shares and none of the outstanding shares of capital stock of the Company have been issued in violation of any preemptive rights of any security holder.
(ix) Except as set forth in the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, (A) the Company and its subsidiaries have not incurred any liabilities or obligations, direct or contingent, or entered into any transactions, other than in the ordinary course of business, that are material to the Company and its subsidiaries taken as a whole, (B) there has not been any material change in the capital stock of the Company, or any material adverse change, or, to the Company’s knowledge, any development involving a prospective material adverse change, in the condition (financial or otherwise), business, net worth, property or results of operations of the Company (excluding changes due to investment activities in the ordinary course of business), (C) there has been no dividend or distribution declared or paid in respect of the Company’s capital stock and (D) the Company and its subsidiaries have not incurred any short-term debt or long-term debt that is, in either case, material with respect to the Company and its subsidiaries taken as a whole (excluding debt resulting from a draw down on the Company’s credit facilities).
(x) There is no pending or, to the knowledge of the Company, threatened action, suit or proceeding, legal or governmental, to which the Company or any of its subsidiaries is a party, before or by any court or governmental agency or body, that is required to be described in the Prospectus and is not so described.
(xi) There are no contracts, agreements or understandings of the Company or any of its subsidiaries that are required to be filed as exhibits to the Registration Statement by the Securities Act or by the Securities Act Rules and Regulations that have not been so filed or incorporated by reference therein as permitted by the Securities Act Rules and Regulations.
(xii) This Agreement has been duly authorized, executed and delivered by the Company.
(xiii) The execution, delivery and performance of this Agreement, the issuance and sale of the Shares Agreement and the consummation of the transactions contemplated herein and compliance by the Prospectus Company with its obligations hereunder (including the issuance and sale of the Shares and the use of the proceeds from the sale of the Shares Securities as described in the Prospectus under the caption “"Use of Proceeds”") have been duly authorized by all necessary corporate action and compliance by the Company with its obligations hereunder do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or result in a breach or violation of any of or
(ix) No labor dispute with the terms and provisions of, constitute a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any properties or assets employees of the Company or any Subsidiary exists or, to the knowledge of its subsidiaries pursuant tothe Company, any agreement, indenture, mortgage, lease or other instrument to which is imminent; and the Company is not aware of any existing or imminent labor disturbance by the employees of any of its subsidiaries is a party principal suppliers, manufacturers or by contractors which it or any of its properties or assets may might be bound nor will such action expected to result in any violation material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company’s Company and the Subsidiaries considered as one enterprise.
(x) There is no action, suit, proceeding, inquiry or any of its subsidiaries’ charter, bylaws investigation before or other organizational documents, or any order, law, statute, rule, regulation, judgment, order, writ or decree of by any court or governmental agency or body, domestic or foreign, having jurisdiction over 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 Prospectus (other than as disclosed therein), or which might reasonably be expected to result in any material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and the Subsidiaries considered as one enterprise, or which might reasonably be expected to materially and adversely affect the properties or assets thereof or the consummation of this Agreement or the performance by the Company of its subsidiaries obligations hereunder; the aggregate of all pending legal or governmental proceedings to which the Company or any Subsidiary is a party or of which any of their respective assets, properties or operations. As used hereinassets is the subject which are not described in the Prospectus, including ordinary routine litigation incidental to the business, could not reasonably be expected to result in a “Repayment Event” means material adverse change in the condition, financial or otherwise, or the earnings, business affairs or business prospects of the Company and the Subsidiaries considered as one enterprise.
(xi) There are no contracts or documents which are required to be described in the Registration Statement, the Prospectus or the documents incorporated by reference therein or to be filed as exhibits thereto by the 1933
(xii) Except as set forth in the Prospectus, each of the Company and the Subsidiaries owns or possesses adequate licenses or other rights to use the patents, patent rights, licenses, inventions, copyrights, know-how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures), trademarks, service marks and trade names (collectively, "patent and proprietary rights") presently employed by them in connection with the business now operated by them and neither the Company nor any event Subsidiary has received any notice or condition which gives the holder is otherwise aware of any noteinfringement of or conflict with asserted rights of others with respect to any patent or proprietary rights or of any facts or circumstances which would render any patent and proprietary rights invalid or inadequate to protect the interest of the Company or the affected Subsidiary(ies) therein, debenture and which infringement or other evidence conflict (if the subject of indebtedness any unfavorable decision, ruling or finding) or invalidity or inadequacy, singly or in the aggregate, would result in any material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and the Subsidiaries considered as one enterprise.
(xiii) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any person acting on such holder’s behalf) court or governmental authority or agency is necessary or required for the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness performance by the Company or any of its subsidiariesobligations hereunder, in connection with the offering, issuance or sale of the Securities hereunder or the consummation of the transactions contemplated by this Agreement, except such as have been already obtained or as may be required under the 1933 Act or the 1933 Act Regulations or state securities laws.
(xiv) Each of the Company and the Subsidiaries possess such certificates, authorities, permits, licenses, approvals, consents and other authorizations (collectively, "Governmental Licenses") issued by the appropriate federal, state, local or foreign regulatory agencies or bodies material to the conduct of the business now operated by them; each of the Company and the Subsidiaries is in compliance with the terms and conditions of all such Governmental Licenses, except where the failure so to comply would not, singly or in the aggregate, have a material adverse effect on the condition, financial or otherwise, or the earnings, business affairs or business prospects of the Company and the Subsidiaries considered as one enterprise; all of the Governmental Licenses are valid and in full force and effect, except where the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and effect would not have a material adverse effect on the condition, financial or otherwise, earnings, business affairs or business prospects of the Company and the Subsidiaries considered as one enterprise; and neither the Company nor any Subsidiary has received any notice of proceedings relating to the revocation or modification of any such Governmental Licenses which, singly or in the
(xv) This Agreement has been duly authorized, executed and delivered by the Company.
(xvi) Except as set forth in the Prospectus, the Company and the Subsidiaries are in compliance in all material respects with all applicable laws, statutes, ordinances, rules or regulations, the enforcement of which, individually or in the aggregate, would be reasonably expected to have a material adverse effect on the condition, financial or otherwise, or the earnings, business affairs or business pr
Appears in 1 contract
Representations and Warranties by the Company. The Company represents and warrants to the Sales Manager Reset Remarketing Agent, as of the date hereof hereof, as of the Effective Date, and as of each Representation Reset Tender Date (as defined hereineach, a "Representation Date") on which a certificate is required to be delivered pursuant to Section 7(n) of this Agreement and as of the time of each sale of any Shares or any securities pursuant to this Agreement (the “Applicable Time”), and agrees with the Sales Manager, as follows:
(ia) The Company meets It has made all the requirements for use of Form N-2 filings with the Commission that it is required to make under the Securities Exchange Act of 1934, as amended (the "1934 Act"), and the Securities rules and regulations thereunder (the "1934 Act Rules and Regulations. At the time the Registration Statement became effective") (collectively, the Registration Statement complied "1934 Act Documents"), (ii) each 1934 Act Document complies in all material respects with the requirements of the Securities 1934 Act and the Securities 1934 Act Rules Regulations, and Regulations and each 1934 Act Document did not at the time of filing with the Commission, and as of each Representation Date, as modified or superseded by any subsequently filed 1934 Act Document on or prior to such Representation Date, will not, include any 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 therein, in the light of the circumstances under which they were made, not misleading; misleading and (iii) the Prospectus compliedapplicable Reset Remarketing Materials (as defined herein), as of its dateeach Representation Date after the date hereof, in all material respectsas modified or superseded by any subsequently filed 1934 Act Document on or prior to such Representation Date (or, with if applicable, by any document filed pursuant to the requirements of the Securities 1933 Act and the Securities rules and regulations thereunder (the "1933 Act Rules and Regulations as of the Applicable TimeRegulations")), did will not contain any include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; .
(b) The Company further represents and warrants to the Prospectus, Reset Remarketing Agent as of each Representation Date as follows:
(i) The accountants who certified the date of financial statements and supporting schedules included or incorporated by reference in the Prospectus Supplement, will comply in all material respects with 1934 Act Documents are independent public accountants as required by the requirements of the Securities 1933 Act and the Securities 1933 Act Rules and Regulations, and the Prospectus, as of the date of the Prospectus Supplement and the Applicable Time, did not and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the representations and warranties in this subsection shall not apply to statements in or omissions from the Registration Statement or Prospectus or any amendments or supplements thereto made in reliance upon and in conformity with information relating to the Sales Manager furnished to the Company in writing by the Sales Manager expressly for use in the Registration Statement or Prospectus, it being understood and agreed that the only such information furnished by the Sales Manager consists of the following information in the Prospectus Supplement furnished on behalf the Sales Manager: the last paragraph under the caption “Plan of Distribution.” The Shares have been duly registered under the Securities Act pursuant to the Registration Statement. Each of the Registration Statement, any Rule 462(b) Registration Statement and any post-effective amendments thereto has become effective, and no order suspending the effectiveness of the Registration Statement has been issued by the Commission.
(ii) The Registration Statement has become effective; the Commission has not issued, and is not, to the knowledge of the Company, threatening to issue, any stop order under the Securities Act or other order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto, and no proceedings for such purpose have been instituted or are pending or, to the best knowledge of the Company are contemplated or threatened by the Commission.
(iii) The Company has elected to be regulated by the Commission as a business development company under the Investment Company Act of 1940, as amended (the “Investment Company Act”), and has not withdrawn that election, and the Commission has not ordered that such election be withdrawn nor to the best of the Company’s knowledge have proceedings to effectuate such withdrawal been initiated or threatened by the Commission.
(iv) To the Company’s knowledge, PricewaterhouseCoopers LLP, the accounting firm that audited the financial statements of the Company set forth included or incorporated by reference in the Registration Statement and Prospectus, were and are independent registered accounting firms as required by the Securities 1934 Act and the Securities Act Rules and Regulations and the rules and regulations of the Public Company Accounting Oversight Board.
(v) The financial statementsDocuments, together with the related schedules and notes, present fairly the financial position of the Company and its consolidated subsidiaries at the dates indicated and the statement of operations, stockholders' equity and cash flows of the Company and its consolidated subsidiaries for the periods specified; such financial statements have been prepared in conformity with generally accepted accounting principles ("GAAP") applied on a consistent basis throughout the periods involved. The supporting schedules, if any, included or incorporated by reference in the 1934 Act Documents present fairly in accordance with GAAP the information required to be stated therein. The pro forma financial statements and the related notes thereto, of the Company set forth if any, included or incorporated by reference in the Registration Statement 1934 Act Documents present fairly the information shown therein, have been prepared in accordance with the Commission's rules and guidelines with respect to pro forma financial statements and have been properly compiled on the bases described therein, and the Prospectus fairly present assumptions used in all the preparation thereof are reasonable and the adjustments used therein are appropriate to give effect to the transactions and circumstances referred to therein.
(iii) Since the respective dates as of which information is given in the 1934 Act Documents, except as otherwise stated therein, (A) there has been no material respects adverse change and no development which could reasonably be expected to result in a material adverse change in the results of operations and condition, financial condition or otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business (a "Material Adverse Effect"), (B) there have been no transactions entered into by the dates indicated Company or any of its subsidiaries, other than those in the ordinary course of business, which are material with respect to the Company and the results of their operations for the respective periods specifiedits subsidiaries considered as one enterprise, and (C) except for regular quarterly dividends on the Company's common stock in amounts per share that are prepared in conformity with U.S. generally accepted accounting principles and the selected financial information and data included in the Registration Statement and the Prospectus have been prepared on a basis consistent with that past practice, there has been no dividend or distribution of any kind declared, paid or made by the books and records Company on any class of the Companyits capital stock.
(viiv) The Company (A) has been duly incorporated organized and is validly existing as a corporation in good standing under the laws of the State of MarylandMichigan, has full with corporate power and authority to own, lease and operate its properties and to conduct its business as presently conducted and as described in the Prospectus; (B) has full power and authority to execute and deliver this Agreement 1934 Act Documents and to consummate the transactions contemplated herebyenter into and perform its obligations under this Agreement; and (C) the Company is duly licensed or qualified to do business as a foreign corporation to transact business and is in good standing in each other jurisdiction where in which such qualification is required, whether by reason of the Company is required to be qualified ownership or licensed leasing of property or in good standingthe conduct of business, except where the failure so to be so qualified or licensed qualify or to be in good standing would not result in a material adverse effect upon the financial condition, business or operations Material Adverse Effect.
(v) The shares of issued and outstanding capital stock of the Company and its subsidiaries, taken as a whole (“Material Adverse Effect”).
(vii) The Company is not, or with the giving of notice or lapse of time or both would not be, in default or violation with respect to its charter or bylaws or governing documents. The Company is not, or with the giving of notice or lapse of time or both would not be, in default in the performance or observance of any obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which the Company is a party or by which the Company is bound or to which any of the properties or assets of the Company is subject, or in violation of any statutes, laws, ordinances or governmental rules or regulations or any orders or decrees to which it is subject.
(viii) The Company’s authorized capitalization is as set forth in the Prospectus; the outstanding shares of Common Stock have been duly authorized and validly issued and are fully paid and non-assessable and conform in all material respects to the description thereof in the Prospectus under the heading “Description of Capital Stock;” the Shares have been duly authorized by all requisite corporate action on the part of the Company for the issuance and sale of the Shares to the Sales Manager pursuant to this Agreement and, when the Shares are delivered and paid for pursuant to this Agreement on the Applicable Time, such Shares will have been validly issued and fully paid and non-assessable. The stockholders of the Company have no preemptive rights with respect to the Shares and ; none of the outstanding shares of capital stock of the Company have been was issued in violation of any the preemptive or other similar rights arising by operation of any security holder.
(ix) Except as set forth in law, under the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, (A) the Company and its subsidiaries have not incurred any liabilities charter or obligations, direct or contingent, or entered into any transactions, other than in the ordinary course of business, that are material to the Company and its subsidiaries taken as a whole, (B) there has not been any material change in the capital stock by-laws of the Company, or under any material adverse change, or, to the Company’s knowledge, any development involving a prospective material adverse change, in the condition (financial or otherwise), business, net worth, property or results of operations of the Company (excluding changes due to investment activities in the ordinary course of business), (C) there has been no dividend or distribution declared or paid in respect of the Company’s capital stock and (D) the Company and its subsidiaries have not incurred any short-term debt or long-term debt that is, in either case, material with respect to the Company and its subsidiaries taken as a whole (excluding debt resulting from a draw down on the Company’s credit facilities).
(x) There is no pending or, to the knowledge of the Company, threatened action, suit or proceeding, legal or governmental, agreement to which the Company or any of its subsidiaries is a partyparty or otherwise.
(vi) Each subsidiary of the Company has been duly organized and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, before or by any court or governmental agency or bodywith corporate power and authority to own, that is required lease and operate its properties and to be conduct its business as presently conducted and as described in the Prospectus 1934 Act Documents and is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so to qualify or to be in good standing would not so describedresult in a Material Adverse Effect; except as otherwise disclosed in the 1934 Act Documents, all of the issued and outstanding capital stock of each such subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and is owned by the Company, as the case may be, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity; none of the outstanding shares of capital stock of any such subsidiary was issued in violation of the preemptive or similar rights of any securityholder of such subsidiary.
(xi) There are no contracts, agreements or understandings of the Company or any of its subsidiaries that are required to be filed as exhibits to the Registration Statement by the Securities Act or by the Securities Act Rules and Regulations that have not been so filed or incorporated by reference therein as permitted by the Securities Act Rules and Regulations.
(xiivii) This Reset Remarketing Agreement has and the Reset Remarketing Agreement Supplement have been duly authorized, executed and delivered by the Company.
(viii) The Indenture has been duly authorized, executed and delivered by the Company and duly qualified under the Trust Indenture Act of 1939, as amended (the "1939 Act"), and, assuming it has been duly executed and delivered by the Trustee, constitutes a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as the enforcement thereof may be limited by bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent transfers, reorganization, moratorium or similar laws affecting enforcement of creditors' rights generally and except as enforcement thereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law) (the "Bankruptcy Exceptions").
(ix) The issuance and delivery by the Company of the Collateral Bonds to the Trustee constitute a sale by the Company of the Collateral Bonds to the Trustee as of the Closing Date or, if not a sale, the grant by the Company to the Trustee of a perfected security interest in the Collateral Bonds for the benefit of the holders of the Senior Notes.
(x) The Secured Indenture constitutes a legally valid and direct enforceable first mortgage lien, except as the same may be limited by the laws of the State of Michigan (where all of the property covered thereby is located) affecting the remedies for the enforcement of the security provided for therein, which laws do not make inadequate the remedies necessary for the realization of the benefits of such security, or as the same may be limited by the Bankruptcy Exceptions, upon substantially all of the Company's properties and franchises, now owned or hereafter acquired, free from all prior liens, charges or encumbrances, except as set forth in subparagraph (xviii) below, and except, in the case of property hereafter acquired, any thereof existing at the time of acquisition.
(xi) The Senior Notes have been duly authorized and executed by the Company and authenticated, issued and delivered in the manner provided for in the Indenture, and constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except as the enforcement thereof may be limited by bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent transfers), reorganization, moratorium or similar laws affecting enforcement of creditors' rights generally and except as enforcement thereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law), and are in the form contemplated by, and entitled to the benefits of, the Indenture.
(xii) The Collateral Bonds have been duly authorized and executed by the Company and authenticated, issued, and delivered in the manner provided for in the Secured Indenture and have been issued and delivered to the Trustee as provided for in the Thirty-Fifth Supplemental Indenture as security for the Senior Notes, and constitute legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their terms except to the extent that enforcement thereof may be limited by the Bankruptcy Exceptions. The Collateral Bonds are in the form contemplated by, and entitled to the benefits of, the Secured Indenture.
(xiii) Neither the Company nor any of its subsidiaries is in violation of its charter or by-laws or in default in the performance or observance of any material obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of its respective subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company or any subsidiary is subject (collectively, "Agreements and Instruments") or in violation of any applicable law, rule or regulation or any judgment, order, writ or decree of any government, governmental instrumentality or court, domestic or foreign, having jurisdiction over the Company or any of its subsidiaries or any of their respective properties or assets, which violation or default would singly or in the aggregate, have a Material Adverse Effect.
(xiv) The execution, delivery and performance of the Purchase Agreement, this Agreement, the issuance Mandatory Tender Remarketing Agreement, the Indenture, the Senior Notes, the Thirty-Fifth Supplemental Indenture, the Collateral Bonds and sale of any other agreement or instrument entered into or issued or to be entered into or issued by the Shares Company in connection with the transactions contemplated hereby or thereby; and the consummation of the transactions contemplated herein and the Prospectus (including the issuance and sale of the Shares and the use of the proceeds from the sale of the Shares as described in the Prospectus under the caption “Use of Proceeds”) therein and compliance by the Company with its obligations hereunder and under the Indenture, the Secured Indenture, the Thirty-Fifth Supplemental Indenture, the Senior Notes, and the Collateral Bonds have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or result in constitute a breach or violation of any of the terms and provisions of, constitute a or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any properties property or assets of the Company or any subsidiary pursuant to (other than the lien of its subsidiaries pursuant tothe Indenture on the Collateral Bonds), any agreementthe Agreements and Instruments (except for such conflicts, indenturebreaches or defaults or liens, mortgagecharges or encumbrances that would not result in a Material Adverse Effect), lease or other instrument to which the Company or any of its subsidiaries is a party or by which it or any of its properties or assets may be bound nor will such action result in any violation of the Company’s provisions of the charter or by-laws of the Company or any of its subsidiaries’ charter, bylaws or other organizational documents, subsidiary or any order, applicable law, statute, rule, regulation, judgment, order, writ or decree of any court government, government instrumentality or governmental agency or bodycourt, domestic or foreign, having jurisdiction over the Company or any of its subsidiaries subsidiary or any of their respective assets, properties or operations. As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any subsidiary.
(xv) 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 1934 Act Documents (other than as disclosed therein), or which might reasonably be expected to result in a Material Adverse Effect, or which might reasonably be expected to materially and adversely affect the properties or assets thereof or the consummation of the transactions contemplated in this Agreement or the performance by the Company of its subsidiariesobligations hereunder; the aggregate of all pending legal or governmental proceedings to which the Company or any subsidiary is a party or of which any of their respective property or assets is the subject which are not described in the 1934 Act Documents, including ordinary routine litigation incidental to the business, could not reasonably be expected to result in a Material Adverse Effect.
(xvi) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Company of its obligations hereunder, in connection with the remarketing of the Senior Notes hereunder or the consummation of the transactions contemplated by this Agreement or for the due execution, delivery or performance of the Indenture by the Company, except such as have or shall have been already obtained.
(xvii) No labor dispute with the employees of the Company or any of its subsidiaries exists or, to the knowledge of the Company, is imminent, and neither the Company is aware of any existing or imminent labor disturbance by the employees of any of its or any of its subsidiary's principal suppliers, manufacturers, customers or contractors which, in either case, may reasonably be expected to result in a Material Adverse Effect.
(xviii) There are no contracts or documents which are required to be described in the Registration Statement, the Prospectus or the documents incorporated by reference therein or to be filed as exhibits thereto which have not been so described and/or filed as required.
(xix) The Company has good and marketable title to the properties specifically described in and conveyed by the Secured Indenture (except such property as may have been disposed of or released from the lien thereof in accordance with the terms thereof) subject only to the lien of the Secured Indenture, to permissible encumbrances as defined in the Secured Indenture, as to property acquired by the Company subsequent to the execution of the Original Secured Indenture, to any liens existing thereon or purchase money liens placed thereon at the time of such acquisition as permitted by the Secured Indenture, and to certain other reservations, rights of grantors under revocable permits, easements, licenses, zoning laws and ordinances and res
Appears in 1 contract
Sources: Reset Remarketing Agreement (Michigan Consolidated Gas Co /Mi/)
Representations and Warranties by the Company. The Company represents and warrants to each Underwriter named in the Sales Manager applicable Underwriting Agreement, as of the date hereof and as of each Representation Date Pricing Effective Time (as defined hereinbelow), as of the Closing Time (as defined below) on which a certificate is required to be delivered pursuant to Section 7(n) of this Agreement and as of the time of each sale of any Shares or any securities pursuant Option Closing Time (as defined below) with respect to this Agreement (the “Applicable Time”), and agrees with the Sales Manager, Designated Securities as follows:
(i1) The each document filed by the Company meets pursuant to the requirements for use of Form N-2 under the Securities 1934 Act and the Securities Act Rules and Regulations. At the time which is incorporated by reference in the Registration Statement became effectiveStatement, the Registration Statement Prospectus or the Pricing Disclosure Material (as defined below) complied when so filed in all material respects with the requirements of the Securities 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 in all material respects 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 the 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 Rules complied when so filed in all material respects with the 1933 Act and Regulations and did the 1933 Act Regulations;
(4) (i) at the Effective Time, the Registration Statement will not include any contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) at the Prospectus complied, as of its date, in all material respects, with the requirements of the Securities Act and the Securities Act Rules and Regulations as of the Applicable Pricing Effective Time, the Pricing Disclosure Material (as defined below) did not contain any 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; and (iii) the Prospectus, Prospectus as of the date of the Prospectus Supplement, Pricing Supplement will comply in all material respects with the requirements of the Securities Act and the Securities Act Rules and Regulationsnot, and the ProspectusProspectus (as amended or supplemented, other than as to supplements relating only to securities other than the Designated Securities) as of the date of the Prospectus Supplement and the Applicable TimeClosing Time will not, did not and will not contain any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, except that the these representations and warranties in this subsection shall do not apply to statements in or omissions from in the Registration Statement or Prospectus or Statement, any Preliminary Prospectus, the Prospectus, any amendments or supplements thereto made in reliance upon and in conformity with information relating to the Sales Manager foregoing, or in the Pricing Disclosure Material, based upon information furnished to the Company in writing by the Sales Manager any Underwriter expressly for use in therein;
(5) the Registration Statement or Prospectus, it being understood and agreed that constitutes an “automatic shelf registration statement” (as defined in Rule 405 under the only such information furnished by the Sales Manager consists 1933 Act) filed within three years of the following information in date hereof; no notice of objection of the Prospectus Supplement furnished on behalf the Sales Manager: the last paragraph under the caption “Plan of Distribution.” The Shares have been duly registered under the Securities Act pursuant Commission with respect to the Registration Statement. Each of the Registration Statement, any Rule 462(b) Registration Statement and any post-effective amendments thereto has become effective, and no order suspending the effectiveness use of the Registration Statement pursuant to Rule 401(g)(2) under the 1933 Act has been issued received by the Commission.
(ii) The Registration Statement has become effective; the Commission has not issued, and is not, to the knowledge of the Company, threatening to issue, any stop order under the Securities Act or other order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto, and no proceedings for such purpose have been instituted or are pending or, to the best knowledge of the Company are contemplated or threatened by the Commission.
(iii) The Company has elected to be regulated by the Commission as a business development company under the Investment Company Act of 1940, as amended (the “Investment Company Act”), and has not withdrawn that election, and the Commission has not ordered that such election be withdrawn nor to the best of the Company’s knowledge have proceedings to effectuate such withdrawal been initiated or threatened by the Commission.
(iv) To the Company’s knowledge, PricewaterhouseCoopers LLP, the accounting firm that audited the financial statements of the Company set forth in the Registration Statement and Prospectus, were and are independent registered accounting firms as required by the Securities Act and the Securities Act Rules and Regulations and the rules and regulations of the Public Company Accounting Oversight Board.
(v) The financial statements, together with the related schedules and notes thereto, of the Company set forth in the Registration Statement and the Prospectus fairly present in all material respects the results of operations and financial condition of the Company and its subsidiaries as of the dates indicated and the results of their operations for the respective periods specified, and are prepared in conformity with U.S. generally accepted accounting principles and the selected financial information and data included in the Registration Statement and the Prospectus have been prepared on a basis consistent with that of the books and records of the Company.
(vi) The Company (A) has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland, has full corporate power and authority to conduct its business as described in the Prospectus; (B) has full power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby; and (C) is duly licensed or qualified to do business as a foreign corporation and in good standing in each jurisdiction where the Company is required to be qualified or licensed or in good standing, except where the failure to be so qualified or licensed or to be in good standing would not result in a material adverse effect upon the financial condition, business or operations of the Company and its subsidiaries, taken as a whole (“Material Adverse Effect”).
(vii) The Company is not, or with the giving of notice or lapse of time or both would not be, in default or violation with respect to its charter or bylaws or governing documents. The Company is not, or with the giving of notice or lapse of time or both would not be, in default in the performance or observance of any obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which the Company is a party or by which “well-known seasoned issuer” and is not an ineligible issuer, in each case as defined in Rule 405 at the Company is bound or to which any of the properties or assets of the Company is subject, or in violation of any statutes, laws, ordinances or governmental rules or regulations or any orders or decrees to which it is subject.
(viii) The Company’s authorized capitalization is as set forth in the Prospectus; the outstanding shares of Common Stock have been duly authorized and validly issued and are fully paid and non-assessable and conform in all material respects “determination dates” relevant to the description thereof in the Prospectus under the heading “Description of Capital Stock;” the Shares have been duly authorized by all requisite corporate action on the part of the Company for the issuance offering and sale of the Shares to the Sales Manager pursuant to this Agreement and, when the Shares are delivered and paid for pursuant to this Agreement on the Applicable Time, such Shares will have been validly issued and fully paid and non-assessable. The stockholders of the Company have no preemptive rights with respect to the Shares and none of the outstanding shares of capital stock of the Company have been issued in violation of any preemptive rights of any security holder.
(ix) Except as set forth in the Prospectus, subsequent to the respective dates as of which information is given in Designated Securities under the Registration Statement and the Prospectus, (Aas described in such definition); and
(6) the Company and its subsidiaries have has not incurred used any liabilities or obligations, direct or contingent, or entered into any transactions, free writing prospectus other than a Permitted Free Writing Prospectus or used a Permitted Free Writing Prospectus except in the ordinary course of business, that are material to the Company and its subsidiaries taken as a whole, (B) there has not been any material change in the capital stock of the Company, or any material adverse change, or, to the Company’s knowledge, any development involving a prospective material adverse change, in the condition (financial or otherwise), business, net worth, property or results of operations of the Company (excluding changes due to investment activities in the ordinary course of business), (C) there has been no dividend or distribution declared or paid in respect of the Company’s capital stock and (D) the Company and its subsidiaries have not incurred any short-term debt or long-term debt that is, in either case, material compliance with respect to the Company and its subsidiaries taken as a whole (excluding debt resulting from a draw down on the Company’s credit facilities).
(x) There is no pending or, to the knowledge of the Company, threatened action, suit or proceeding, legal or governmental, to which the Company or any of its subsidiaries is a party, before or by any court or governmental agency or body, that is required to be described in the Prospectus and is not so described.
(xi) There are no contracts, agreements or understandings of the Company or any of its subsidiaries that are required to be filed as exhibits to the Registration Statement by the Securities Act or by the Securities Act Rules and Regulations that have not been so filed or incorporated by reference therein as permitted by the Securities Act Rules and Regulations.
(xii) This Agreement has been duly authorized, executed and delivered by the Company.
(xiii) The execution, delivery and performance of this Agreement, the issuance and sale of the Shares and the consummation of the transactions contemplated herein and the Prospectus (including the issuance and sale of the Shares and the use of the proceeds from the sale of the Shares as described in the Prospectus Rule 433 under the caption “Use of Proceeds”) 1933 Act and otherwise in compliance by with the Company with its obligations hereunder do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or result in a breach or violation of any of the terms and provisions of, constitute a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any of its subsidiaries pursuant to, any agreement, indenture, mortgage, lease or other instrument to which the Company or any of its subsidiaries is a party or by which it or any of its properties or assets may be bound nor will such action result in any violation of the Company’s or any of its subsidiaries’ charter, bylaws or other organizational documents, or any order, law, statute, rule, regulation, judgment, order, writ or decree of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Company or any of its subsidiaries or any of their respective assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its subsidiaries1933 Act.
Appears in 1 contract
Representations and Warranties by the Company. The Company represents and warrants to each Underwriter named in the Sales Manager applicable Underwriting Agreement, as of the date hereof and as of each Representation Date Pricing Effective Time (as defined hereinbelow), as of the Closing Time (as defined below) on which a certificate is required to be delivered pursuant to Section 7(n) of this Agreement and as of the time of each sale of any Shares or any securities pursuant Option Closing Time (as defined below) with respect to this Agreement (the “Applicable Time”), and agrees with the Sales Manager, Designated Securities as follows:
(i1) The each document filed by the Company meets pursuant to the requirements for use of Form N-2 under the Securities 1934 Act and the Securities Act Rules and Regulations. At the time which is incorporated by reference in the Registration Statement became effectiveStatement, the Registration Statement Prospectus or the Pricing Disclosure Material (as defined below) complied when so filed in all material respects with the requirements of the Securities 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 in all material respects 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 the 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 Rules complied when so filed in all material respects with the 1933 Act and Regulations and did the 1933 Act Regulations;
(4) (i) at the Effective Time, the Registration Statement will not include any contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) at the Prospectus complied, as of its date, in all material respects, with the requirements of the Securities Act and the Securities Act Rules and Regulations as of the Applicable Pricing Effective Time, the Pricing Disclosure Material (as defined below) did not contain any 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; and (iii) the Prospectus, Prospectus as of the date of the Prospectus Supplement, Pricing Supplement will comply in all material respects with the requirements of the Securities Act and the Securities Act Rules and Regulationsnot, and the ProspectusProspectus (as amended or supplemented, other than as to supplements relating only to securities other than the Designated Securities) as of the date of the Prospectus Supplement and the Applicable TimeClosing Time will not, did not and will not contain any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, except that the these representations and warranties in this subsection shall do not apply to (a) statements in or omissions from in the Registration Statement or Prospectus or Statement, any Preliminary Prospectus, the Prospectus, any amendments or supplements thereto made in reliance upon and in conformity with information relating to the Sales Manager foregoing, or in the Pricing Disclosure Material, based upon information furnished to the Company in writing by the Sales Manager any Underwriter expressly for use in the Registration therein and (b) any Form T-1 Statement or Prospectus, it being understood of Eligibility and agreed that the only such information furnished by the Sales Manager consists of the following information in the Prospectus Supplement furnished on behalf the Sales Manager: the last paragraph under the caption “Plan of Distribution.” The Shares have been duly registered under the Securities Act pursuant Qualification included as an exhibit to the Registration Statement. Each ;
(5) the Registration Statement constitutes an “automatic shelf registration statement” (as defined in Rule 405 under the 1933 Act) filed within three years of the Registration Statement, any Rule 462(b) Registration Statement and any post-effective amendments thereto has become effective, and date hereof; no order suspending notice of objection of the effectiveness Commission with respect to the use of the Registration Statement pursuant to Rule 401(g)(2) under the 1933 Act has been issued received by the Commission.
(ii) The Registration Statement has become effective; the Commission has not issued, and is not, to the knowledge of the Company, threatening to issue, any stop order under the Securities Act or other order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto, and no proceedings for such purpose have been instituted or are pending or, to the best knowledge of the Company are contemplated or threatened by the Commission.
(iii) The Company has elected to be regulated by the Commission as a business development company under the Investment Company Act of 1940, as amended (the “Investment Company Act”), and has not withdrawn that election, and the Commission has not ordered that such election be withdrawn nor to the best of the Company’s knowledge have proceedings to effectuate such withdrawal been initiated or threatened by the Commission.
(iv) To the Company’s knowledge, PricewaterhouseCoopers LLP, the accounting firm that audited the financial statements of the Company set forth in the Registration Statement and Prospectus, were and are independent registered accounting firms as required by the Securities Act and the Securities Act Rules and Regulations and the rules and regulations of the Public Company Accounting Oversight Board.
(v) The financial statements, together with the related schedules and notes thereto, of the Company set forth in the Registration Statement and the Prospectus fairly present in all material respects the results of operations and financial condition of the Company and its subsidiaries as of the dates indicated and the results of their operations for the respective periods specified, and are prepared in conformity with U.S. generally accepted accounting principles and the selected financial information and data included in the Registration Statement and the Prospectus have been prepared on a basis consistent with that of the books and records of the Company.
(vi) The Company (A) has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland, has full corporate power and authority to conduct its business as described in the Prospectus; (B) has full power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby; and (C) is duly licensed or qualified to do business as a foreign corporation and in good standing in each jurisdiction where the Company is required to be qualified or licensed or in good standing, except where the failure to be so qualified or licensed or to be in good standing would not result in a material adverse effect upon the financial condition, business or operations of the Company and its subsidiaries, taken as a whole (“Material Adverse Effect”).
(vii) The Company is not, or with the giving of notice or lapse of time or both would not be, in default or violation with respect to its charter or bylaws or governing documents. The Company is not, or with the giving of notice or lapse of time or both would not be, in default in the performance or observance of any obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which the Company is a party or by which “well-known seasoned issuer” and is not an ineligible issuer in each case as defined in Rule 405 at the Company is bound or to which any of the properties or assets of the Company is subject, or in violation of any statutes, laws, ordinances or governmental rules or regulations or any orders or decrees to which it is subject.
(viii) The Company’s authorized capitalization is as set forth in the Prospectus; the outstanding shares of Common Stock have been duly authorized and validly issued and are fully paid and non-assessable and conform in all material respects “determination dates” relevant to the description thereof in the Prospectus under the heading “Description of Capital Stock;” the Shares have been duly authorized by all requisite corporate action on the part of the Company for the issuance offering and sale of the Shares to the Sales Manager pursuant to this Agreement and, when the Shares are delivered and paid for pursuant to this Agreement on the Applicable Time, such Shares will have been validly issued and fully paid and non-assessable. The stockholders of the Company have no preemptive rights with respect to the Shares and none of the outstanding shares of capital stock of the Company have been issued in violation of any preemptive rights of any security holder.
(ix) Except as set forth in the Prospectus, subsequent to the respective dates as of which information is given in Designated Securities under the Registration Statement and the Prospectus, (Aas described in such definition); and
(6) the Company and its subsidiaries have has not incurred used any liabilities or obligations, direct or contingent, or entered into any transactions, free writing prospectus other than a Permitted Free Writing Prospectus or used a Permitted Free Writing Prospectus except in the ordinary course of business, that are material to the Company and its subsidiaries taken as a whole, (B) there has not been any material change in the capital stock of the Company, or any material adverse change, or, to the Company’s knowledge, any development involving a prospective material adverse change, in the condition (financial or otherwise), business, net worth, property or results of operations of the Company (excluding changes due to investment activities in the ordinary course of business), (C) there has been no dividend or distribution declared or paid in respect of the Company’s capital stock and (D) the Company and its subsidiaries have not incurred any short-term debt or long-term debt that is, in either case, material compliance with respect to the Company and its subsidiaries taken as a whole (excluding debt resulting from a draw down on the Company’s credit facilities).
(x) There is no pending or, to the knowledge of the Company, threatened action, suit or proceeding, legal or governmental, to which the Company or any of its subsidiaries is a party, before or by any court or governmental agency or body, that is required to be described in the Prospectus and is not so described.
(xi) There are no contracts, agreements or understandings of the Company or any of its subsidiaries that are required to be filed as exhibits to the Registration Statement by the Securities Act or by the Securities Act Rules and Regulations that have not been so filed or incorporated by reference therein as permitted by the Securities Act Rules and Regulations.
(xii) This Agreement has been duly authorized, executed and delivered by the Company.
(xiii) The execution, delivery and performance of this Agreement, the issuance and sale of the Shares and the consummation of the transactions contemplated herein and the Prospectus (including the issuance and sale of the Shares and the use of the proceeds from the sale of the Shares as described in the Prospectus Rule 433 under the caption “Use of Proceeds”) 1933 Act and otherwise in compliance by with the Company with its obligations hereunder do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or result in a breach or violation of any of the terms and provisions of, constitute a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any of its subsidiaries pursuant to, any agreement, indenture, mortgage, lease or other instrument to which the Company or any of its subsidiaries is a party or by which it or any of its properties or assets may be bound nor will such action result in any violation of the Company’s or any of its subsidiaries’ charter, bylaws or other organizational documents, or any order, law, statute, rule, regulation, judgment, order, writ or decree of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Company or any of its subsidiaries or any of their respective assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its subsidiaries1933 Act.
Appears in 1 contract
Representations and Warranties by the Company. The Company represents and warrants to the Sales Manager each Underwriter as of the date hereof and as of each Representation Date (as defined hereinthe Closing Time referred to in Section 2(b) on which a certificate is required to be delivered pursuant to Section 7(n) of this Agreement and as of the time of each sale of any Shares or any securities pursuant to this Agreement (the “Applicable Time”)hereof, and agrees with the Sales Managereach Underwriter, as follows:
(i) The Company meets the requirements for use of Form N-2 under the Securities Act and the Securities Act Rules and Regulations. At the time respective times the Registration Statement, any Rule 462(b) Registration Statement and any post- effective amendments thereto became effective, and at the Closing Time, the Registration Statement, the 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 1933 Act and the Securities 1933 Act Rules Regulations and Regulations the 1939 Act and the rules and regulations of the Commission under the 1939 Act (the "1939 Act Regulations"), and did not include and will not (taking into account any applicable prospectus supplement) 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; . Neither the Prospectus compliednor any amendments or supplements thereto, as of its date, in all material respects, with at the requirements of time the Securities Act Prospectus or any such amendment or supplement was issued and at the Securities Act Rules and Regulations as of the Applicable Time, did not contain any Closing Time included or will 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 Prospectus, as of the date of the Prospectus Supplement, will comply in all material respects with the requirements of the Securities Act and the Securities Act Rules and Regulations, and the Prospectus, as of the date of the Prospectus Supplement and the Applicable Time, did not and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the . The representations and warranties in this subsection shall not apply to statements in or omissions from the Registration Statement or Prospectus or any amendments or supplements thereto made in reliance upon and in conformity with information relating to contained in the Sales Manager last paragraph of the cover page of the Prospectus Supplement, the first paragraph on the inside cover page of the Prospectus Supplement and the third paragraph under the heading "Underwriting" in the Prospectus Supplement and furnished to the Company in writing by the Sales Manager expressly any Underwriter through Merr▇▇▇ ▇▇▇c▇ ▇▇▇ressly for use in the Registration Statement or Prospectus. The Prospectus filed as part of the Registration Statement as originally filed or as part of any amendment thereto, it being understood and agreed that or filed pursuant to Rule 424 under the only such information furnished 1933 Act, complied when so filed in all material respects with the 1933 Act Regulations and, if applicable, 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 EDGA▇, ▇▇cept to the extent permitted by Regulation S-T promulgated by the Sales Manager consists of the following information in the Prospectus Supplement furnished on behalf the Sales Manager: the last paragraph under the caption “Plan of DistributionCommission ("Regulation S-T").” The Shares have been duly registered under the Securities Act pursuant to the Registration Statement.
(ii) Each of the Registration Statement, Statement and any Rule 462(b) Registration Statement and any post-effective amendments thereto has become effective, effective under the 1933 Act and no order suspending the effectiveness of the Registration Statement has been issued by the Commission.
(ii) The Registration Statement has become effective; the Commission has not issued, and is not, to the knowledge of the Company, threatening to issue, any stop order under the Securities Act or other order suspending the effectiveness of the Registration Statement or any post-effective amendment theretoRule 462(b) Registration Statement or, in each case, any part thereof has been issued and no proceedings proceeding for such that purpose have has been instituted or are is pending or, to the best knowledge of the Company are Company, is contemplated or threatened by the CommissionCommission or the state securities authority of any jurisdiction and any request on the part of the Commission for additional information has been complied with. No order preventing or suspending the use of the Prospectus has been issued and no proceeding for that purpose has been instituted or is pending before or, to the knowledge of the Company, is contemplated by, the Commission or the state securities authority of any jurisdiction.
(iii) The Company has elected to be regulated documents incorporated by reference in the Commission as a business development company under Prospectus, when they became effective or were filed with the Investment Company Act of 1940Commission, as amended (the “Investment Company Act”)case may be, and has not withdrawn that election, and the Commission has not ordered that such election be withdrawn nor conformed in all material respects to the best requirements of the Company’s knowledge have proceedings to effectuate such withdrawal been initiated or threatened by the Commission.
(iv) To the Company’s knowledge, PricewaterhouseCoopers LLPSecurities Act, the accounting firm that audited Exchange Act or the financial statements of the Company set forth in the Registration Statement and Prospectus1939 Act, were and are independent registered accounting firms as required by the Securities Act and the Securities Act Rules and Regulations applicable, and the rules and regulations of the Public Company Accounting Oversight Board.
(v) The financial statementsCommission thereunder, together and none of such documents contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and any further documents so filed and incorporated by reference in the Prospectus, when such documents become effective or are filed with the related schedules and notes theretoCommission, of as the Company set forth in the Registration Statement and the Prospectus fairly present case may be, will conform in all material respects to the results of operations and financial condition requirements of the Company Securities Act, the Exchange Act or the 1939 Act, as applicable, and its subsidiaries as the rules and regulations of the dates indicated Commission thereunder 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 results of their operations for the respective periods specified, and are prepared in conformity with U.S. generally accepted accounting principles and the selected financial information and data included in the Registration Statement and the Prospectus have been prepared on a basis consistent with that of the books and records of the Companystatements therein not misleading.
(viiv) The Company (A) has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland, has full corporate power and authority to conduct its business as described in the Prospectus; (B) has full power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby; and (C) is duly licensed or qualified to do business and is in good standing as a foreign corporation and in good standing in each jurisdiction where in which its ownership or lease of property or the Company is required to be qualified or licensed or in good standing, conduct of its business requires such qualification (except where the failure to be so qualified or licensed or to be in good standing qualify would not result in have a material adverse effect upon on the consolidated financial conditionposition, stockholders' equity, results of operations, business affairs or operations business prospects of the Company Company), and has all power and authority necessary to own or hold its subsidiaries, taken as a whole (“Material Adverse Effect”).
(vii) The Company is not, or with properties and to conduct the giving of notice or lapse of time or both would not be, business in default or violation with respect to its charter or bylaws or governing documents. The Company is not, or with the giving of notice or lapse of time or both would not be, in default in the performance or observance of any obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which the Company is a party or by which the Company is bound or to which any of the properties or assets of the Company is subject, or in violation of any statutes, laws, ordinances or governmental rules or regulations or any orders or decrees to which it is subject.
(viii) The Company’s authorized capitalization is as set forth in the Prospectusengaged; the outstanding shares of Common Stock have been duly authorized and validly issued and are fully paid and non-assessable and conform in all material respects to the description thereof in the Prospectus under the heading “Description of Capital Stock;” the Shares have been duly authorized by all requisite corporate action on the part of the Company for the issuance and sale has no interest in any entity or person other than (i) its ownership of the Shares to the Sales Manager pursuant to this Agreement and, when the Shares are delivered and paid for pursuant to this Agreement on the Applicable Time, such Shares will have been validly issued and fully paid and non-assessable. The stockholders of the Company have no preemptive rights with respect to the Shares and none all of the outstanding shares of capital stock of the Company have been issued in violation of any preemptive rights of any security holder.
Price/Texas, Inc., a Texas corporation (ix) Except as set forth in the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, (A) the Company and its subsidiaries have not incurred any liabilities or obligations, direct or contingent, or entered into any transactions, other than in the ordinary course of business, that are material to the Company and its subsidiaries taken as a whole, (B) there has not been any material change in the capital stock of the Company, or any material adverse change, or, to the Company’s knowledge, any development involving a prospective material adverse change, in the condition (financial or otherwise), business, net worth, property or results of operations of the Company (excluding changes due to investment activities in the ordinary course of business"Price Texas"), (Cii) there has been no dividend or distribution declared or paid in respect its ownership of all of the Company’s capital stock limited partnership interests in Price/Baybrook, Ltd., a Texas limited partnership, and (D) the Company and its subsidiaries have not incurred any short-term debt or long-term debt that is, in either case, material with respect to the Company and its subsidiaries taken as a whole (excluding debt resulting from a draw down on the Company’s credit facilities).
(x) There is no pending or, to the knowledge ownership by Price Texas of all of the general partnership interests of Price/Baybrook, Ltd., (iii) its ownership of 100% of the nonvoting preferred stock of K&F Development Company, threatened action, suit or proceeding, legal or governmental, to which the Company or any of its subsidiaries is a party, before or by any court or governmental agency or body, that is required to be described in the Prospectus and is not so described.
(xi) There are no contracts, agreements or understandings of the Company or any of its subsidiaries that are required to be filed as exhibits to the Registration Statement by the Securities Act or by the Securities Act Rules and Regulations that have not been so filed or incorporated by reference therein as permitted by the Securities Act Rules and Regulations.
(xii) This Agreement has been duly authorized, executed and delivered by the Company.
(xiii) The execution, delivery and performance of this Agreement, the issuance and sale of the Shares and the consummation of the transactions contemplated herein and the Prospectus (including the issuance and sale of the Shares and the use of the proceeds from the sale of the Shares as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or result in a breach or violation of any of the terms and provisions of, constitute a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any of its subsidiaries pursuant to, any agreement, indenture, mortgage, lease or other instrument to which the Company or any of its subsidiaries is a party or by which it or any of its properties or assets may be bound nor will such action result in any violation of the Company’s or any of its subsidiaries’ charter, bylaws or other organizational documents, or any order, law, statute, rule, regulation, judgment, order, writ or decree of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Company or any of its subsidiaries or any of their respective assets, properties or operations. As used hereinInc., a “Repayment Event” means any event or condition which gives California corporation (the holder of any note"Development Company"), debenture or other evidence of indebtedness (or any person acting on such holder’s behalfiv) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its subsidiaries.its
Appears in 1 contract
Sources: Purchase Agreement (Price Reit Inc)
Representations and Warranties by the Company. The Company represents and warrants to the Sales Manager as of the date hereof and as of each Representation Date (as defined herein) on which a certificate is required to be delivered pursuant to Section 7(n) of this Agreement and as of the time of each sale of any Shares or any securities pursuant to this Agreement (the “Applicable Time”), and agrees with the Sales Manager, as follows:
(i) The Company meets the requirements for use of Form N-2 under the Securities Act and the Securities Act Rules and Regulations. At the time the Registration Statement became effective, the Registration Statement complied in all material respects with the requirements of the Securities Act and the Securities Act Rules and Regulations and did not include 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 Prospectus complied, as of its date, in all material respects, with the requirements of the Securities Act and the Securities Act Rules and Regulations as of the Applicable Time, did not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; the Prospectus, as of the date of the Prospectus Supplement, will comply in all material respects with the requirements of the Securities Act and the Securities Act Rules and Regulations, and the Prospectus, as of the date of the Prospectus Supplement and the Applicable Time, did not and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the representations and warranties in this subsection shall not apply to statements in or omissions from the Registration Statement or Prospectus or any amendments or supplements thereto made in reliance upon and in conformity with information relating to the Sales Manager furnished to the Company in writing by the Sales Manager expressly for use in the Registration Statement or Prospectus, it being understood and agreed that the only such information furnished by the Sales Manager consists of the following information in the Prospectus Supplement furnished on behalf the Sales Manager: the last paragraph under the caption “Plan of Distribution.” The Shares have been duly registered under the Securities Act pursuant to the Registration Statement. Each of the Registration Statement, any Rule 462(b) Registration Statement and any post-effective amendments thereto has become effective, and no order suspending the effectiveness of the Registration Statement has been issued by the Commission.
(ii) The Registration Statement has become effective; the Commission has not issued, and is not, to the knowledge of the Company, threatening to issue, any stop order under the Securities Act or other order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto, and no proceedings for such purpose have been instituted or are pending or, to the best knowledge of the Company are contemplated or threatened by the Commission.
(iii) The Company has elected to be regulated by the Commission as a business development company under the Investment Company Act of 1940, as amended (the “Investment Company Act”), and has not withdrawn that election, and the Commission has not ordered that such election be withdrawn nor to the best of the Company’s knowledge have proceedings to effectuate such withdrawal been initiated or threatened by the Commission.
(iv) To the Company’s knowledge, PricewaterhouseCoopers LLP, the accounting firm that audited the financial statements of the Company set forth in the Registration Statement and Prospectus, were and are independent registered accounting firms as required by the Securities Act and the Securities Act Rules and Regulations and the rules and regulations of the Public Company Accounting Oversight Board.
(v) The financial statements, together with the related schedules and notes thereto, of the Company set forth in the Registration Statement and the Prospectus fairly present in all material respects the results of operations and financial condition of the Company and its subsidiaries as of the dates indicated and the results of their operations for the respective periods specified, and are prepared in conformity with U.S. generally accepted accounting principles and the selected financial information and data included in the Registration Statement and the Prospectus have been prepared on a basis consistent with that of the books and records of the Company.
(vi) The Company (A) has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland, has full corporate power and authority to conduct its business as described in the Prospectus; (B) has full power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby; and (C) is duly licensed or qualified to do business as a foreign corporation and in good standing in each jurisdiction where the Company is required to be qualified or licensed or in good standing, except where the failure to be so qualified or licensed or to be in good standing would not result in a material adverse effect upon the financial condition, business or operations of the Company and its subsidiaries, taken as a whole (“Material Adverse Effect”).
(vii) The Company is not, or with the giving of notice or lapse of time or both would not be, in default or violation with respect to its charter or bylaws or governing documents. The Company is not, or with the giving of notice or lapse of time or both would not be, in default in the performance or observance of any obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which the Company is a party or by which the Company is bound or to which any of the properties or assets of the Company is subject, or in violation of any statutes, laws, ordinances or governmental rules or regulations or any orders or decrees to which it is subject.
(viii) The Company’s authorized capitalization is as set forth in the Prospectus; the outstanding shares of Common Stock have been duly authorized and validly issued and are fully paid and non-assessable and conform in all material respects to the description thereof in the Prospectus under the heading “Description of Capital Stock;” the Shares have been duly authorized by all requisite corporate action on the part of the Company for the issuance and sale of the Shares to the Sales Manager pursuant to this Agreement and, when the Shares are delivered and paid for pursuant to this Agreement on the Applicable Time, such Shares will have been validly issued and fully paid and non-assessable. The stockholders of the Company have no preemptive rights with respect to the Shares and none of the outstanding shares of capital stock of the Company have been issued in violation of any preemptive rights of any security holder.
(ix) Except as set forth in the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, (A) the Company and its subsidiaries have not incurred any liabilities or obligations, direct or contingent, or entered into any transactions, other than in the ordinary course of business, that are material to the Company and its subsidiaries taken as a whole, (B) there has not been any material change in the capital stock of the Company, or any material adverse change, or, to the Company’s knowledge, any development involving a prospective material adverse change, in the condition (financial or otherwise), business, net worth, property or results of operations of the Company (excluding changes due to investment activities in the ordinary course of business), (C) there has been no dividend or distribution declared or paid in respect of the Company’s capital stock and (D) the Company and its subsidiaries have not incurred any short-term debt or long-term debt that is, in either case, material with respect to the Company and its subsidiaries taken as a whole (excluding debt resulting from a draw down on the Company’s credit facilities).
(x) There is no pending or, to the knowledge of the Company, threatened action, suit or proceeding, legal or governmental, to which the Company or any of its subsidiaries is a party, before or by any court or governmental agency or body, that is required to be described in the Prospectus and is not so described.
(xi) There are no contracts, agreements or understandings of the Company or any of its subsidiaries that are required to be filed as exhibits to the Registration Statement by the Securities Act or by the Securities Act Rules and Regulations that have not been so filed or incorporated by reference therein as permitted by the Securities Act Rules and Regulations.
(xii) This Agreement has been duly authorized, executed and delivered by the Company.
(xiii) The execution, delivery and performance of this Agreement, the issuance and sale of the Shares and the consummation of the transactions contemplated herein and the Prospectus (including the issuance and sale of the Shares and the use of the proceeds from the sale of the Shares as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or result in a breach or violation of any of the terms and provisions of, constitute a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any of its subsidiaries pursuant to, any agreement, indenture, mortgage, lease or other instrument to which the Company or any of its subsidiaries is a party or by which it or any of its properties or assets may be bound nor will such action result in any violation of the Company’s or any of its subsidiaries’ charter, bylaws or other organizational documents, or any order, law, statute, rule, regulation, judgment, order, writ or decree of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Company or any of its subsidiaries or any of their respective assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its subsidiaries.
(xiv) No consent, approval, authorization, notification or order of, or filing with, any court or governmental agency or body is required for the consummation by the Company or any of its subsidiaries of the transactions contemplated by this Agreement, except such as may be required by the securities or Blue Sky laws of the various states, the rules and regulations of the FINRA (as defined below) or the securities laws of any jurisdiction outside of the United States in connection with the offer and sale of the Shares.
(xv) This Agreement complies as to form in all material respects with all applicable provisions of the Investment Company Act and the approval by the Board of Directors of the Company of this Agreement have been made in accordance with the requirements of Section 15 of the Investment Company Act applicable to companies that have elected to be regulated as business development companies under the Investment Company Act.
(xvi) Except as disclosed in the Registration Statement and the Prospectus, there are no contracts, agreements or understandings between the Company and any person granting such person the right to require the Company to file a registration statement under the Securities Act with respect to any securities of the Company or to require the Company to include such securities with the Shares registered pursuant to the Registration Statement.
(xvii) There are no material restrictions, limitations or regulations with respect to the ability of the Company or any of its subsidiaries to invest its assets as described in the Registration Statement or the Prospectus, other than as described therein.
(xviii) Any third-party statistical and market-related data included in the Registration Statement or the Prospectus are based on or derived from sources that the Company believes to be reliable and accurate.
(xix) The Shares have been authorized for listing on the NYSE, subject to official notice of issuance or sale of the Shares, as the case may be.
(xx) Except as described in the Prospectus, the Company and each of its subsidiaries have all necessary licenses, authorizations, consents and approvals and have made all necessary filings required under any federal, state or local law, regulation or rule, and have obtained all necessary licenses, authorizations, consents and approvals from other persons, required in order to conduct their business as described under the heading “Business” in the Prospectus, except to the extent that any failure to have any such licenses, authorizations, consents or approvals, to make any such filings or to obtain any such authorizations, consents or approvals is not, alone or in the aggregate, reasonably likely to result in a Material Adverse Effect; neither the Company nor any of its subsidiaries is in violation of, or in default under, any such license, authorization, consent or approval of any federal, state or local law, regulation or rule or any decree, order or judgment applicable to the Company or any of its subsidiaries, the effect of which is reasonably likely to result in a Material Adverse Effect; and neither the Company nor any of its subsidiaries has received any notification or communication from any agency or department of federal, state, or local government or any regulatory authority or the staff thereof threatening to revoke or modify any license, authorization, consent or approval, which alone or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would be reasonably likely to result in a Material Adverse Effect.
(xxi) Except as disclosed in the Prospectus under the caption “Certain Relationships and Related Transactions,” the Company and its subsidiaries have not entered into any transaction with any person which would be required to be disclosed under Item 404 of the Commission’s Regulation S-K.
(xxii) Except as otherwise disclosed in the Prospectus, as of the date thereof, no extension of credit has been made by the Company to an executive officer or director of the Company in violation of Section 402 of ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002.
(xxiii) Except with respect to the Sales Manager or as disclosed in the Prospectus, the Company has not incurred any liability for any finder’s fees or similar payments in connection with the issuance and sale the Shares.
(xxiv) The Common Stock is registered pursuant to Section 12(b) of the Securities Exchange Act of 1934, as amended (“Exchange Act”), and is listed on the NYSE, and the Company has taken no action designed to, or likely to have the effect of, terminating the registration of the Common Stock under the Exchange Act or delisting the Common Stock from the NYSE, nor has the Company received any notification that the Commission or the NYSE is contemplating terminating such registration or listing.
(xxv) The Company (A) has not taken, directly or indirectly, any action designed to cause or to result in, or that has constituted or which might reasonably be expected to constitute, the stabilization or manipulation of the price or any security of the Company to facilitate the issuance or the sale or resale of the Shares, (B) has not since the filing of the Registration Statement sold, bid for or purchased, or paid anyone compensation for soliciting purchases of, shares of Common Stock of the Company and (C) will not, until the la
Appears in 1 contract
Sources: Equity Distribution Agreement (Hercules Capital, Inc.)
Representations and Warranties by the Company. The Company represents and warrants to the Sales Manager as of the date hereof and as of each Representation Date (as defined herein) on which a certificate is required to be delivered pursuant to Section 7(n) of this Agreement and as of the time of each sale of any Shares or any securities pursuant to this Agreement (the “Applicable Time”), and agrees with the Sales Manager, as follows:
(i) The Company meets the requirements for use of Form N-2 under the Securities Act and the Securities Act Rules and Regulations. At the time the Registration Statement became effective, the Registration Statement complied in all material respects with the requirements of the Securities Act and the Securities Act Rules and Regulations and did not include 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 Prospectus complied, as of its date, in all material respects, with the requirements of the Securities Act and the Securities Act Rules and Regulations as of the Applicable Time, did not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; the Prospectus, as of the date of the Prospectus Supplement, will comply in all material respects with the requirements of the Securities Act and the Securities Act Rules and Regulations, and the Prospectus, as of the date of the Prospectus Supplement and the Applicable Time, did not and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the representations and warranties in this subsection shall not apply to statements in or omissions from the Registration Statement or Prospectus or any amendments or supplements thereto made in reliance upon and in conformity with information relating to the Sales Manager furnished to the Company in writing by the Sales Manager expressly for use in the Registration Statement or Prospectus, it being understood and agreed that the only such information furnished by the Sales Manager consists of the following information in the Prospectus Supplement furnished on behalf the Sales Manager: the last paragraph under the caption “Plan of Distribution.” none. The Shares have been duly registered under the Securities Act pursuant to the Registration Statement. Each of the Registration Statement, any Rule 462(b) Registration Statement and any post-effective amendments thereto has become effective, and no order suspending the effectiveness of the Registration Statement has been issued by the Commission.
(ii) The Registration Statement has become effective; the Commission has not issued, and is not, to the knowledge of the Company, threatening to issue, any stop order under the Securities Act or other order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto, and no proceedings for such purpose have been instituted or are pending or, to the best knowledge of the Company are contemplated or threatened by the Commission.
(iii) The Company has elected to be regulated by the Commission as a business development company is duly registered under the Investment Company Act of 1940, as amended (the “Investment Company Act”), as a closed-end, non-diversified management investment company and the notification of registration of the Company as an investment company under the Investment Company Act on Form N-8A (the “1940 Act Notification”) has been duly filed with the Commission and, at the time of filing thereof and any amendment or supplement thereto, conformed in all material respects with all applicable provisions of the Investment Company Act and the rules and regulation promulgated under the Investment Company Act (the “1940 Act Rules and Regulations”). The Company is, and at all times through the completion of the transactions contemplated hereby will be, in compliance in all material respects with the terms and conditions of the Investment Company Act. No person is serving or acting as an officer, director or investment adviser of the Company except in accordance with the provisions of the Investment Company Act, the 1940 Act Rules and Regulations; the Company has not withdrawn that election, and received any notice from the Commission has not ordered that such election be withdrawn nor pursuant to Section 8(e) of the Investment Company Act with respect to the best 1940 Act Notification or the Registration Statement. The Company is not aware that any executive, key employee or significant group of employees of the Company plans to terminate employment with the Company’s knowledge have proceedings to effectuate such withdrawal been initiated , it being understood that a member of the board of directors of the Company who is not an “interested person” (as defined in the Investment Company Act) thereof is not an executive or threatened by the Commissionemployee for purposes of this representation and warranty.
(iv) To the Company’s knowledge, PricewaterhouseCoopers LLPWithumSmith+B▇▇▇▇, P.C. , the accounting firm that audited the financial statements of the Company set forth in the Registration Statement and Prospectus, were and are independent registered accounting firms as required by the Securities Act and the Securities Act Rules and Regulations and the rules and regulations of the Public Company Accounting Oversight Board.
(v) The financial statements, together with the related schedules and notes thereto, of the Company set forth in the Registration Statement and the Prospectus fairly present in all material respects the results of operations and financial condition of the Company and its subsidiaries as of the dates indicated and the results of their operations for the respective periods specified, and are prepared in conformity with U.S. generally accepted accounting principles and the selected financial information and data included in the Registration Statement and the Prospectus have been prepared on a basis consistent with that of the books and records of the Company.
(vi) The Company (A) has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of MarylandNew York, has full corporate power and authority to conduct its business as described in the Prospectus; (B) has full power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby; and (C) is duly licensed or qualified to do business as a foreign corporation and in good standing in each jurisdiction where the Company is required to be qualified or licensed or in good standing, except where the failure to be so qualified or licensed or to be in good standing would not result in a material adverse effect upon the financial condition, business or operations of the Company and its subsidiaries, taken as a whole (“Material Adverse Effect”).
(vii) The Company is not, or with the giving of notice or lapse of time or both would not be, in default or violation with respect to its charter or bylaws or governing documents. The Company is not, or with the giving of notice or lapse of time or both would not be, in default in the performance or observance of any obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which the Company is a party or by which the Company is bound or to which any of the properties or assets of the Company is subject, or in violation of any statutes, laws, ordinances or governmental rules or regulations or any orders or decrees to which it is subject.
(viii) The Company’s authorized capitalization is as set forth in the Prospectus; the outstanding shares of Common Stock have been duly authorized and validly issued and are fully paid and non-assessable and conform in all material respects to the description thereof in the Prospectus under the heading “General Description of Capital Daxor Corporation - Daxor Corporation Common Stock;” the Shares have been duly authorized by all requisite corporate action on the part of the Company for the issuance and sale of the Shares to the Sales Manager pursuant to this Agreement and, when the Shares are delivered and paid for pursuant to this Agreement on the Applicable Time, such Shares will have been validly issued and fully paid and non-assessable. The stockholders of the Company have no preemptive rights with respect to the Shares and none of the outstanding shares of capital stock of the Company have been issued in violation of any preemptive rights of any security holder.
(ix) Except as set forth in the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, (A) the Company and its subsidiaries have not incurred any liabilities or obligations, direct or contingent, or entered into any transactions, other than in the ordinary course of business, that are material to the Company and its subsidiaries taken as a whole, (B) there has not been any material change in the capital stock of the Company, or any material adverse change, or, to the Company’s knowledge, any development involving a prospective material adverse change, in the condition (financial or otherwise), business, net worth, property or results of operations of the Company (excluding changes due to investment activities in the ordinary course of business), (C) there has been no dividend or distribution declared or paid in respect of the Company’s capital stock and (D) the Company and its subsidiaries have not incurred any short-term debt or long-term debt that is, in either case, material with respect to the Company and its subsidiaries taken as a whole (excluding debt resulting from a draw down on the Company’s credit facilities).
(x) There is no pending or, to the knowledge of the Company, threatened action, suit or proceeding, legal or governmental, to which the Company or any of its subsidiaries is a party, before or by any court or governmental agency or body, including, without limitation, the FDA (as defined below), that is required to be described in the Prospectus and is not so described.
(xi) There are no contracts, agreements or understandings of the Company or any of its subsidiaries that are required to be filed as exhibits to the Registration Statement by the Securities Act or by the Securities Act Rules and Regulations that have not been so filed or incorporated by reference therein as permitted by the Securities Act Rules and Regulations.
(xii) This Agreement has been duly authorized, executed and delivered by the CompanyCompany and is a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms.
(xiii) The execution, delivery and performance of this Agreement, the issuance and sale of the Shares and the consummation of the transactions contemplated herein and the Prospectus (including the issuance and sale of the Shares and the use of the proceeds from the sale of the Shares as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or result in a breach or violation of any of the terms and provisions of, constitute a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any of its subsidiaries pursuant to, any agreement, indenture, mortgage, lease or other instrument to which the Company or any of its subsidiaries is a party or by which it or any of its properties or assets may be bound nor will such action result in any violation of the Company’s or any of its subsidiaries’ charter, bylaws or other organizational documents, or any order, law, statute, rule, regulation, judgment, order, writ or decree of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Company or any of its subsidiaries or any of their respective assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its subsidiaries.
Appears in 1 contract
Representations and Warranties by the Company. The Company represents and warrants to the Sales Manager each Underwriter as of the date hereof and as of each Representation Date the Closing Time referred to in Section 2(c) hereof (as defined herein) on which a certificate is required to be delivered pursuant to Section 7(n) of this Agreement and as of the time of each sale of any Shares or any securities pursuant to this Agreement (the “Applicable Time”unless otherwise specified), and agrees with the Sales Managereach Underwriter, as follows:
(i) The Company meets Registration Statement has become effective, no stop order suspending the requirements for use effectiveness of Form N-2 under the Securities Act and the Securities Act Rules and Regulations. At the time the Registration Statement is in effect and no proceedings for such purpose are pending before or threatened by the Commission. The Company is a well-known seasoned issuer (as defined in Rule 405 under the 1933 Act), eligible to use the Registration Statement as an automatic shelf registration statement and the Company has not received notice that the Commission objects to the use of the Registration Statement as an automatic shelf registration statement.
(A) The Registration Statement, when it became effective, the Registration Statement complied in all material respects with the requirements of the Securities Act and the Securities Act Rules and Regulations and did not include contain, and as amended or supplemented, if applicable, will not contain 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; , (B) the Registration Statement as of the date hereof does not contain 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, (C) the Registration Statement and the Prospectus compliedcomply, and as of its dateamended or supplemented, if applicable, will comply in all material respects, respects with the requirements of the Securities 1933 Act and the Securities Act Rules applicable rules and Regulations as regulations of the Applicable Commission thereunder, (D) the Time of Sale Prospectus does not, and at the time of each sale of the Notes in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Time, did not the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; the Prospectus, as of the date of the Prospectus Supplement, will comply in all material respects with the requirements of the Securities Act and the Securities Act Rules and Regulations, and the Prospectus, as of the date of the Prospectus Supplement and the Applicable Time, did not and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the representations and warranties in this subsection shall not apply to statements in or omissions from the Registration Statement or Prospectus or any amendments or supplements thereto made in reliance upon and in conformity with information relating to the Sales Manager furnished to the Company in writing by the Sales Manager expressly for use in the Registration Statement or Prospectus, it being understood and agreed that the only such information furnished by the Sales Manager consists of the following information in the Prospectus Supplement furnished on behalf the Sales Manager: the last paragraph under the caption “Plan of Distribution.” The Shares have been duly registered under the Securities Act pursuant to the Registration Statement. Each of the Registration Statement, any Rule 462(b) Registration Statement and any post-effective amendments thereto has become effective, and no order suspending the effectiveness of the Registration Statement has been issued by the Commission.
(ii) The Registration Statement has become effective; the Commission has not issued, and is not, to the knowledge of the Company, threatening to issue, any stop order under the Securities Act or other order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto, and no proceedings for such purpose have been instituted or are pending or, to the best knowledge of the Company are contemplated or threatened by the Commission.
(iii) The Company has elected to be regulated by the Commission as a business development company under the Investment Company Act of 1940, as amended (the “Investment Company Act”), and has not withdrawn that election, and the Commission has not ordered that such election be withdrawn nor to the best of the Company’s knowledge have proceedings to effectuate such withdrawal been initiated or threatened by the Commission.
(iv) To the Company’s knowledge, PricewaterhouseCoopers LLP, the accounting firm that audited the financial statements of the Company set forth in the Registration Statement and Prospectus, were and are independent registered accounting firms as required by the Securities Act and the Securities Act Rules and Regulations and the rules and regulations of the Public Company Accounting Oversight Board.
(v) The financial statements, together with the related schedules and notes thereto, of the Company set forth in the Registration Statement and the Prospectus fairly present in all material respects the results of operations and financial condition of the Company and its subsidiaries as of the dates indicated and the results of their operations for the respective periods specified, and are prepared in conformity with U.S. generally accepted accounting principles and the selected financial information and data included in the Registration Statement and the Prospectus have been prepared on a basis consistent with that of the books and records of the Company.
(vi) The Company (A) has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland, has full corporate power and authority to conduct its business as described in the Prospectus; (B) has full power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby; and (C) is duly licensed or qualified to do business as a foreign corporation and in good standing in each jurisdiction where the Company is required to be qualified or licensed or in good standing, except where the failure to be so qualified or licensed or to be in good standing would not result in a material adverse effect upon the financial condition, business or operations of the Company and its subsidiaries, taken as a whole (“Material Adverse Effect”).
(vii) The Company is not, or with the giving of notice or lapse of time or both would not be, in default or violation with respect to its charter or bylaws or governing documents. The Company is not, or with the giving of notice or lapse of time or both would not be, in default in the performance or observance of any obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which the Company is a party or by which the Company is bound or to which any of the properties or assets of the Company is subject, or in violation of any statutes, laws, ordinances or governmental rules or regulations or any orders or decrees to which it is subject.
(viii) The Company’s authorized capitalization is as set forth in the Prospectus; the outstanding shares of Common Stock have been duly authorized and validly issued and are fully paid and non-assessable and conform in all material respects to the description thereof in the Prospectus under the heading “Description of Capital Stock;” the Shares have been duly authorized by all requisite corporate action on the part of the Company for the issuance and sale of the Shares to the Sales Manager pursuant to this Agreement and, when the Shares are delivered and paid for pursuant to this Agreement on the Applicable Time, such Shares will have been validly issued and fully paid and non-assessable. The stockholders of the Company have no preemptive rights with respect to the Shares and none of the outstanding shares of capital stock of the Company have been issued in violation of any preemptive rights of any security holder.
(ix) Except as set forth in the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, (A) the Company and its subsidiaries have not incurred any liabilities or obligations, direct or contingent, or entered into any transactions, other than in the ordinary course of business, that are material to the Company and its subsidiaries taken as a whole, (B) there has not been any material change in the capital stock of the Company, or any material adverse change, or, to the Company’s knowledge, any development involving a prospective material adverse change, in the condition (financial or otherwise), business, net worth, property or results of operations of the Company (excluding changes due to investment activities in the ordinary course of business), (C) there has been no dividend or distribution declared or paid in respect of the Company’s capital stock and (D) the Company and its subsidiaries have not incurred any short-term debt or long-term debt that is, in either case, material with respect to the Company and its subsidiaries taken as a whole (excluding debt resulting from a draw down on the Company’s credit facilities).
(x) There is no pending or, to the knowledge of the Company, threatened action, suit or proceeding, legal or governmental, to which the Company or any of its subsidiaries is a party, before or by any court or governmental agency or body, that is required to be described in the Prospectus and is not so described.
(xi) There are no contracts, agreements or understandings of the Company or any of its subsidiaries that are required to be filed as exhibits to the Registration Statement by the Securities Act or by the Securities Act Rules and Regulations that have not been so filed or incorporated by reference therein as permitted by the Securities Act Rules and Regulations.
(xii) This Agreement has been duly authorized, executed and delivered by the Company.
(xiii) The execution, delivery and performance of this Agreement, the issuance and sale of the Shares and the consummation of the transactions contemplated herein and the Prospectus (including the issuance and sale of the Shares and the use of the proceeds from the sale of the Shares as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or result in a breach or violation of any of the terms and provisions of, constitute a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any of its subsidiaries pursuant to, any agreement, indenture, mortgage, lease or other instrument to which the Company or any of its subsidiaries is a party or by which it or any of its properties or assets may be bound nor will such action result in any violation of the Company’s or any of its subsidiaries’ charter, bylaws or other organizational documents, or any order, law, statute, rule, regulation, judgment, order, writ or decree of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Company or any of its subsidiaries or any of their respective assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its subsidiaries.,
Appears in 1 contract
Representations and Warranties by the Company. The Company represents and warrants to each Underwriter named in the Sales Manager applicable Underwriting Agreement, as of the date hereof and as of each Representation Date Pricing Effective Time (as defined hereinbelow), as of the Closing Time (as defined below) on which a certificate is required to be delivered pursuant to Section 7(n) of this Agreement and as of the time of each sale of any Shares or any securities pursuant Option Closing Time (as defined below) with respect to this Agreement (the “Applicable Time”), and agrees with the Sales Manager, Designated Securities as follows:
(i1) The each document filed by the Company meets pursuant to the requirements for use of Form N-2 under the Securities 1934 Act and the Securities Act Rules and Regulations. At the time which is incorporated by reference in the Registration Statement became effectiveStatement, the Registration Statement Prospectus or the Pricing Disclosure Material (as defined below) complied when so filed in all material respects with the requirements of the Securities 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 in all material respects 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 the 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 Rules complied when so filed in all material respects with the 1933 Act and Regulations and did the 1933 Act Regulations;
(i) at the Effective Time, the Registration Statement will not include any contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) at the Prospectus complied, as of its date, in all material respects, with the requirements of the Securities Act and the Securities Act Rules and Regulations as of the Applicable Pricing Effective Time, the Pricing Disclosure Material (as defined below) did not contain any 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; and (iii) the Prospectus, Prospectus as of the date of the Prospectus Supplement, Pricing Supplement will comply in all material respects with the requirements of the Securities Act and the Securities Act Rules and Regulationsnot, and the ProspectusProspectus (as amended or supplemented, other than as to supplements relating only to securities other than the Designated Securities) as of the date of the Prospectus Supplement and the Applicable TimeClosing Time will not, did not and will not contain any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, except that the these representations and warranties in this subsection shall do not apply to (a) statements in or omissions from in the Registration Statement or Prospectus or Statement, any Preliminary Prospectus, the Prospectus, any amendments or supplements thereto made in reliance upon and in conformity with information relating to the Sales Manager foregoing, or in the Pricing Disclosure Material, based upon information furnished to the Company in writing by the Sales Manager any Underwriter expressly for use in the Registration therein and (b) any Form T-1 Statement or Prospectus, it being understood of Eligibility and agreed that the only such information furnished by the Sales Manager consists of the following information in the Prospectus Supplement furnished on behalf the Sales Manager: the last paragraph under the caption “Plan of Distribution.” The Shares have been duly registered under the Securities Act pursuant Qualification included as an exhibit to the Registration Statement. Each ;
(5) the Registration Statement constitutes an “automatic shelf registration statement” (as defined in Rule 405 under the 1933 Act) filed within three years of the Registration Statement, any Rule 462(b) Registration Statement and any post-effective amendments thereto has become effective, and date hereof; no order suspending notice of objection of the effectiveness Commission with respect to the use of the Registration Statement pursuant to Rule 401(g)(2) under the 1933 Act has been issued received by the Commission.
(ii) The Registration Statement has become effective; the Commission has not issued, and is not, to the knowledge of the Company, threatening to issue, any stop order under the Securities Act or other order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto, and no proceedings for such purpose have been instituted or are pending or, to the best knowledge of the Company are contemplated or threatened by the Commission.
(iii) The Company has elected to be regulated by the Commission as a business development company under the Investment Company Act of 1940, as amended (the “Investment Company Act”), and has not withdrawn that election, and the Commission has not ordered that such election be withdrawn nor to the best of the Company’s knowledge have proceedings to effectuate such withdrawal been initiated or threatened by the Commission.
(iv) To the Company’s knowledge, PricewaterhouseCoopers LLP, the accounting firm that audited the financial statements of the Company set forth in the Registration Statement and Prospectus, were and are independent registered accounting firms as required by the Securities Act and the Securities Act Rules and Regulations and the rules and regulations of the Public Company Accounting Oversight Board.
(v) The financial statements, together with the related schedules and notes thereto, of the Company set forth in the Registration Statement and the Prospectus fairly present in all material respects the results of operations and financial condition of the Company and its subsidiaries as of the dates indicated and the results of their operations for the respective periods specified, and are prepared in conformity with U.S. generally accepted accounting principles and the selected financial information and data included in the Registration Statement and the Prospectus have been prepared on a basis consistent with that of the books and records of the Company.
(vi) The Company (A) has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland, has full corporate power and authority to conduct its business as described in the Prospectus; (B) has full power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby; and (C) is duly licensed or qualified to do business as a foreign corporation and in good standing in each jurisdiction where the Company is required to be qualified or licensed or in good standing, except where the failure to be so qualified or licensed or to be in good standing would not result in a material adverse effect upon the financial condition, business or operations of the Company and its subsidiaries, taken as a whole (“Material Adverse Effect”).
(vii) The Company is not, or with the giving of notice or lapse of time or both would not be, in default or violation with respect to its charter or bylaws or governing documents. The Company is not, or with the giving of notice or lapse of time or both would not be, in default in the performance or observance of any obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which the Company is a party or by which “well-known seasoned issuer” and is not an ineligible issuer in each case as defined in Rule 405 at the Company is bound or to which any of the properties or assets of the Company is subject, or in violation of any statutes, laws, ordinances or governmental rules or regulations or any orders or decrees to which it is subject.
(viii) The Company’s authorized capitalization is as set forth in the Prospectus; the outstanding shares of Common Stock have been duly authorized and validly issued and are fully paid and non-assessable and conform in all material respects “determination dates” relevant to the description thereof in the Prospectus under the heading “Description of Capital Stock;” the Shares have been duly authorized by all requisite corporate action on the part of the Company for the issuance offering and sale of the Shares to the Sales Manager pursuant to this Agreement and, when the Shares are delivered and paid for pursuant to this Agreement on the Applicable Time, such Shares will have been validly issued and fully paid and non-assessable. The stockholders of the Company have no preemptive rights with respect to the Shares and none of the outstanding shares of capital stock of the Company have been issued in violation of any preemptive rights of any security holder.
(ix) Except as set forth in the Prospectus, subsequent to the respective dates as of which information is given in Designated Securities under the Registration Statement and the Prospectus, (Aas described in such definition); and
(6) the Company and its subsidiaries have has not incurred used any liabilities or obligations, direct or contingent, or entered into any transactions, free writing prospectus other than a Permitted Free Writing Prospectus or used a Permitted Free Writing Prospectus except in the ordinary course of business, that are material to the Company and its subsidiaries taken as a whole, (B) there has not been any material change in the capital stock of the Company, or any material adverse change, or, to the Company’s knowledge, any development involving a prospective material adverse change, in the condition (financial or otherwise), business, net worth, property or results of operations of the Company (excluding changes due to investment activities in the ordinary course of business), (C) there has been no dividend or distribution declared or paid in respect of the Company’s capital stock and (D) the Company and its subsidiaries have not incurred any short-term debt or long-term debt that is, in either case, material compliance with respect to the Company and its subsidiaries taken as a whole (excluding debt resulting from a draw down on the Company’s credit facilities).
(x) There is no pending or, to the knowledge of the Company, threatened action, suit or proceeding, legal or governmental, to which the Company or any of its subsidiaries is a party, before or by any court or governmental agency or body, that is required to be described in the Prospectus and is not so described.
(xi) There are no contracts, agreements or understandings of the Company or any of its subsidiaries that are required to be filed as exhibits to the Registration Statement by the Securities Act or by the Securities Act Rules and Regulations that have not been so filed or incorporated by reference therein as permitted by the Securities Act Rules and Regulations.
(xii) This Agreement has been duly authorized, executed and delivered by the Company.
(xiii) The execution, delivery and performance of this Agreement, the issuance and sale of the Shares and the consummation of the transactions contemplated herein and the Prospectus (including the issuance and sale of the Shares and the use of the proceeds from the sale of the Shares as described in the Prospectus Rule 433 under the caption “Use of Proceeds”) 1933 Act and otherwise in compliance by with the Company with its obligations hereunder do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or result in a breach or violation of any of the terms and provisions of, constitute a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any of its subsidiaries pursuant to, any agreement, indenture, mortgage, lease or other instrument to which the Company or any of its subsidiaries is a party or by which it or any of its properties or assets may be bound nor will such action result in any violation of the Company’s or any of its subsidiaries’ charter, bylaws or other organizational documents, or any order, law, statute, rule, regulation, judgment, order, writ or decree of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Company or any of its subsidiaries or any of their respective assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its subsidiaries1933 Act.
Appears in 1 contract
Representations and Warranties by the Company. The Company hereby represents and warrants to the Sales Manager Agents that as of the date hereof and as of each Representation Date (as defined hereinbelow) on which a certificate is required to be delivered pursuant to Section 7(n7(o) of this Agreement Agreement, and as of the time of each sale of any Shares or any securities pursuant to this Agreement Settlement Date (the “Applicable Time”as defined below), and agrees with the Sales ManagerAgents, as follows:
(i1) The Company meets the requirements for use of Form N-2 S-3 under the Securities Act. The Registration Statement and any post-effective amendments thereto have become effective under the Securities Act. No stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Company, are contemplated by the Commission, and any request on the part of the Commission for additional information has been complied with.
(2) At the respective times the Registration Statement and any post-effective amendments thereto became or become effective, at each deemed effective date of the Registration Statement with respect to any of the Selling Agents pursuant to Rule 430B(f)(2) of the Securities Act Rules and Regulations. At the time the Registration Statement became effectiveat each Settlement Date, the Registration Statement complied and will comply in all material respects with the requirements of the Securities Act and the Securities Act Rules and Regulations and did not include any 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; .
(3) The Prospectus and any amendments or supplements thereto, at the time the Prospectus compliedor any such amendment or supplement was issued and at each Settlement Date, as of its date, complied and will comply in all material respects, respects with the requirements of the Securities Act and the Securities Act Rules and Regulations as of the Applicable Time, did not contain any and will not 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; .
(4) Each Issuer Free Writing Prospectus relating to the Securities, as of its issue date and as of each Settlement Date, 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, or included, includes or, when considered together with the Registration Statement and the Prospectus and all amendments and supplement thereto, and all other Issuer Free Writing Prospectuses and all amendments and supplements thereto, 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 light of the circumstances, prevailing at such time, not misleading.
(5) The representations and warranties set forth in the preceding paragraphs 2, 3 and 4 shall not apply to statements in or omissions from the Registration Statement or the Prospectus, as of amended or supplemented, or any Issuer Free Writing Prospectus relating to the date of Securities, made in reliance upon and in conformity with information furnished to the Prospectus SupplementCompany in writing by any Selling Agent expressly for use therein.
(6) The documents incorporated or deemed to be incorporated by reference in the Registration Statement and the Prospectus, when they became effective or at the time they were or hereafter are filed with the Commission, complied and will comply in all material respects with the requirements of the Securities Act and Exchange Act, as applicable, and, when read together with the Securities Act Rules and Regulations, and other information in the Prospectus, as of (a) at the date of time the Prospectus Supplement Registration Statement became effective and the Applicable Time(b) at each Settlement Date, did not and will not contain any an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided.
(7) At the time of filing, however, that the representations and warranties in this subsection shall not apply to statements in or omissions from the Registration Statement and at the time of the most recent amendment thereto for purposes of complying with Section 10(a)(3) of the Securities Act (whether by post-effective amendment, incorporated report filed pursuant to Section 13 or Prospectus 15(d) of the Exchange Act or any amendments or supplements thereto made in reliance upon and in conformity with information relating to Form of Prospectus), at the Sales Manager furnished to earliest time thereafter that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) of the Securities Act) of the Securities and at the date hereof, the Company was not and is not an “ineligible issuer,” as defined in writing by Rule 405 of the Sales Manager expressly for use Securities Act.
(8) The descriptions in the Registration Statement and the Prospectus of the contracts, leases and other legal documents therein described present fairly the information required to be shown, and there are no contracts, leases, or other documents of a character required to be described in the Registration Statement or Prospectus, it being understood and agreed that the only such information furnished by the Sales Manager consists of the following information in the Prospectus Supplement furnished on behalf the Sales Manager: the last paragraph under the caption “Plan of Distribution.” The Shares have been duly registered under the Securities Act pursuant or to be filed as exhibits to the Registration Statement. Each of the Registration Statement, any Rule 462(b) Registration Statement and any post-effective amendments thereto has become effective, and which are not described or filed as required; there are no order suspending the effectiveness of the Registration Statement has been issued by the Commission.
(ii) The Registration Statement has become effective; the Commission has not issued, and is notlegal or governmental proceedings pending or, to the knowledge of the Company, threatening threatened, to issue, which the Company or any stop order under the Securities Act or other order suspending the effectiveness of Subsidiary (as defined below) is subject that are required to be described in the Registration Statement or any post-effective amendment thereto, the Prospectus and are not so described; there are no proceedings for such purpose have been instituted statutes or are pending or, regulations applicable to the best knowledge Company or any Subsidiary or certificates, permits or other authorizations from governmental regulatory officials or bodies required to be obtained or maintained by the Company or any Subsidiary of a character required to be disclosed that are not so described therein as required; all agreements between the Company or any Subsidiary and third parties expressly referenced in the Registration Statement and the Prospectus are legal, valid and binding obligations of the Company or the Subsidiary, enforceable in accordance with their respective terms, except to the extent enforceability may be limited by bankruptcy, insolvency, reorganization or other laws of general applicability relating to or affecting creditors’ rights and by general equity principles; there are contemplated no business relationships or threatened by related-party transactions involving the CommissionCompany or any Subsidiary required to be described in the Registration Statement and the Prospectus which have not been so described as required.
(iii9) The Deloitte & Touche LLP, who audited the financial statements and supporting schedules of the Company has elected and its Subsidiaries for its fiscal years ended December 31, 2018 and 2017, which are included or incorporated by reference in the Registration Statement and the Prospectus, is an independent registered public accounting firm with respect to be regulated the Company as required by the Commission as a business development company under Securities Act, the Investment Exchange Act and the Public Company Act of 1940, as amended Accounting Oversight Board (the “Investment Company ActPCAOB”). KPMG LLP, who audited the financial statements and has not withdrawn that electionsupporting schedules of the Company and its Subsidiaries for its fiscal year ended December 31, 2016, which are included or incorporated by reference in the Registration Statement and the Commission has not ordered that such election be withdrawn nor Prospectus, is an independent registered public accounting firm with respect to the best of the Company’s knowledge have proceedings to effectuate such withdrawal been initiated or threatened Company as required by the CommissionSecurities Act, the Exchange Act and the PCAOB.
(iv10) To the Company’s knowledge, PricewaterhouseCoopers LLP, the accounting firm that audited the The financial statements of the Company set forth and its Subsidiaries, (collectively, the “Company Financial Statements”), included or incorporated by reference in the Registration Statement and the Prospectus, were and are independent registered accounting firms as any financial statements required by Rule 3-14 of Regulation S-X (the “Acquisition Financial Statements”), which are incorporated by reference in the Registration Statement and the Prospectus, present fairly the financial position of the Company and its consolidated Subsidiaries at the dates indicated, or, if applicable, with respect to the Acquisition Financial Statements, the respective property or tenant; and all such financial statements have been prepared in conformity with United States generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods involved and comply with all applicable accounting requirements under the Securities Act and the Securities Act Rules Exchange Act, except as disclosed therein, and Regulations that unaudited financial statements may not contain all footnotes required by GAAP and subject, in the rules and regulations case of the Public Company Accounting Oversight Board.
(v) The unaudited financial statements, together to normal year-end audit adjustments. The supporting schedules, if any, included or incorporated by reference in the Registration Statement and the Prospectus present fairly, in accordance with GAAP, the information required to be stated therein. There are no financial statements or schedules required to be included or incorporated by reference in the Registration Statement or the Prospectus under the Securities Act, which are not so included or incorporated. If applicable, the unaudited pro forma financial information (including the related notes) included or incorporated by reference in the Registration Statement or the Prospectus complies as to form in all material respects with the related schedules applicable accounting requirements of the Securities Act, and notes thereto, management of the Company set forth believes that the assumptions underlying the pro forma adjustments are reasonable. If applicable, such pro forma adjustments have been properly applied to the historical amounts in the compilation of the information and such information fairly presents with respect to the Company and its consolidated Subsidiaries, the financial position, results of operations and other information purported to be shown therein at the respective dates and for the respective periods specified. No pro forma financial information is required to be included or incorporated by reference in the Registration Statement or the Prospectus which is not so included or incorporated. Any non-GAAP financial measures, as defined under Regulation G of the Securities Act, included or incorporated by reference in the Registration Statement and the Prospectus are permitted for use in documents filed with the Commission and comply with Regulation G under the Exchange Act and Item 10 of Regulation S-K of the Securities Act, to the extent applicable. The ratio of earnings to fixed charges contained in the Registration Statement and the Prospectus has been calculated in accordance with Item 503(d) of Regulation S-K. The interactive data in eXtensible Business Reporting Language incorporated by reference in the Registration Statement and the Prospectus fairly present presents the information called for in all material respects and has been prepared in accordance with the results Commission’s rules and guidelines applicable thereto.
(11) Since the respective dates as of operations and which information is given in the Registration Statement or the Prospectus, except as otherwise stated therein, (A) there has been no material adverse change, nor any development or event involving a prospective material adverse change, in the condition, financial condition or otherwise, or in the earnings, investment portfolio, business affairs or business prospects of the Company and its subsidiaries the Subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business (a “Material Adverse Effect”), (B) there have been no transactions entered into by any of the dates indicated Company or the Subsidiaries, which are material with respect to the Company and the results of their operations for the respective periods specifiedSubsidiaries, considered as one enterprise, and are prepared in conformity with U.S. generally accepted accounting principles and the selected financial information and data included (C) except as disclosed in the Registration Statement and Company’s press releases, there has been no dividend or distribution of any kind declared, paid or made by the Prospectus have been prepared Company on a basis consistent with that any class of the books and records its shares of the Companybeneficial interest.
(vi12) The Company (A) has been duly incorporated organized and is validly an existing as a corporation statutory real estate investment trust in good standing under the laws of the State of Maryland, has full corporate with power and authority (trust or other) to own and operate its properties and conduct its business as described in the Registration Statement and the Prospectus; (B) has full power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby; and (C) is duly licensed or qualified to do business as a foreign corporation and in good standing in each jurisdiction where the Company is required to be qualified or licensed or in good standing, except . Except where the failure to be so qualified or licensed qualify or to be in good standing would not result in a material adverse effect Material Adverse Effect, the Company is duly qualified to do business as a foreign entity in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification.
(13) Exhibit 21 of the Company’s most recent Annual Report on Form 10-K, attached hereto as Exhibit E (which may be modified from time to time by the Company upon notice to the financial conditionAgents in writing), business or operations is a true, correct and complete list of all of the subsidiaries of the Company controlled directly or indirectly by the Company (each, a “Subsidiary” and its subsidiariescollectively, taken the “Subsidiaries”), including the jurisdiction of incorporation or organization of each such Subsidiary and each Subsidiary that is a “significant subsidiary” as defined by Rule 1-02 of Regulation S-X. For the avoidance of doubt, the term “Subsidiary” as used in this Agreement and the Exhibits hereto includes, without limitation, Lepercq Corporate Income Fund L.P., a whole Delaware limited partnership (“LCIF”). The Company hereby represents and warrants that no “significant subsidiary” as defined by Rule 1-02 of Regulation S-X has been formed by the Company since the date of Exhibit E.
(14) Each Subsidiary has been duly incorporated or formed, as the case may be, and each is existing and in good standing under the laws of its respective jurisdiction of incorporation or formation, with power and authority (corporate, partnership, trust or other) to own or lease its properties and conduct its business as described in the Registration Statement and the Prospectus. Except where the failure to so qualify or to be in good standing would not result in a Material Adverse Effect”).
(vii) The Company , each Subsidiary is not, duly qualified to do business as a foreign entity in good standing in all other jurisdictions in which its ownership or with lease of property or the giving conduct of notice or lapse of time or both would not be, in default or violation with respect to its charter or bylaws or governing documentsbusiness requires such qualification. The Company is not, or with the giving of notice or lapse of time or both would not be, in default in the performance or observance of any obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which the Company is a party or by which the Company is bound or to which any All of the properties or assets issued and outstanding equity interests of the Company is subject, or in violation of any statutes, laws, ordinances or governmental rules or regulations or any orders or decrees to which it is subject.
(viii) The Company’s authorized capitalization is as set forth in the Prospectus; the outstanding shares of Common Stock each Subsidiary have been duly authorized and validly issued and are fully paid and non-assessable assessable; and conform the equity interests of each Subsidiary owned by the Company or another Subsidiary, directly or through subsidiaries, are owned free from security interests, liens, claims, encumbrances and defects, except (i) as disclosed in all material respects the Registration Statement and the Prospectus or (ii) where such security interests, liens, claims, encumbrances and defects would not have a Material Adverse Effect. Immediately prior to the description thereof in the Prospectus under the heading “Description of Capital Stock;” the Shares have been duly authorized by all requisite corporate action on the part consummation of the Company for transactions contemplated hereby and the issuance and application of the Net Proceeds from the sale of the Shares to Placement Securities, the Sales Manager pursuant to this Agreement and, when Company owns the Shares are delivered sole general partnership interest and paid for pursuant to this Agreement on the Applicable Time, such Shares will have been validly issued and fully paid and non-assessable. The stockholders a majority of the Company have no preemptive rights with respect to the Shares and none of the outstanding shares of capital stock of the Company have been issued limited partnership interests in violation of any preemptive rights of any security holderLCIF.
(ix15) Except The Company’s authorized and issued capitalization is as set forth in the Prospectusdocuments incorporated by reference in the Registration Statement and the Prospectus and has not changed, except for (i) subsequent issuances, if any, pursuant to the respective dates as of which information is given this Agreement or any Confirmation or pursuant to reservations, agreements, benefit plans or other plans and arrangements referred to, or incorporated by reference, in the Registration Statement and the Prospectus, (Aii) purchases of Securities pursuant to the Company’s announced stock repurchase program referred to, or incorporated by reference, in the Registration Statement and the Prospectus and (iii) such other changes as are referred to, or incorporated by reference, in the Registration Statement and Prospectus; this Agreement, any Confirmation, and the issuance of Placement Securities by the Company and its subsidiaries have not incurred hereunder or the issuance of any liabilities or obligations, direct or contingent, or entered into Securities under any transactions, other than in the ordinary course of business, that are material to the Company and its subsidiaries taken as a whole, (B) there Confirmation has not been any material change in the capital stock duly authorized by all appropriate action of the Company, or any material adverse change, or, to the Company’s knowledge, any development involving a prospective material adverse change, in the condition (financial or otherwise), business, net worth, property or results all outstanding shares of operations beneficial interest of the Company (excluding changes due to investment activities are, and, when the Placement Securities or the newly issued Securities have been delivered and paid for in the ordinary course of business)accordance with this Agreement or a Confirmation, (C) there has been no dividend or distribution declared or as applicable, on each Settlement Date, such Securities will be, validly issued, fully paid in respect of the Company’s capital stock and (D) the Company non-assessable and its subsidiaries have not incurred any short-term debt or long-term debt that is, in either case, material with respect will conform to the Company and its subsidiaries taken as a whole (excluding debt resulting from a draw down on the Company’s credit facilities).
(x) There is no pending or, to the knowledge of the Company, threatened action, suit or proceeding, legal or governmental, to which the Company or any of its subsidiaries is a party, before or by any court or governmental agency or body, that is required to be described in the Prospectus and is not so described.
(xi) There are no contracts, agreements or understandings of the Company or any of its subsidiaries that are required to be filed as exhibits to description thereof contained the Registration Statement by and the Securities Act or by Prospectus; the Securities Act Rules issued and Regulations that outstanding units of limited partnership interest in LCIF (the “Units”) have not been so filed or incorporated by reference therein as permitted by the Securities Act Rules and Regulations.
(xii) This Agreement has been duly authorized, executed authorized by LCIF and delivered by have been validly issued in accordance with the Company.
(xiii) The execution, delivery and performance Partnership Agreement of this Agreement, the issuance and sale of the Shares and the consummation of the transactions contemplated herein and the Prospectus (including the issuance and sale of the Shares and the use of the proceeds from the sale of the Shares as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or result in a breach or violation of any of the terms and provisions LCIF; all of, constitute a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any of its subsidiaries pursuant to, any agreement, indenture, mortgage, lease or other instrument to which the Company or any of its subsidiaries is a party or by which it or any of its properties or assets may be bound nor will such action result in any violation of the Company’s or any of its subsidiaries’ charter, bylaws or other organizational documents, or any order, law, statute, rule, regulation, judgment, order, writ or decree of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Company or any of its subsidiaries or any of their respective assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its subsidiaries.
Appears in 1 contract
Representations and Warranties by the Company. The Company represents and warrants to the Sales Manager as of the date hereof and as of each Representation Date (as defined herein) on which a certificate is required to be delivered pursuant to Section 7(n) of this Agreement and as of the time of each sale of any Shares Placement Securities or any securities pursuant to this Agreement (the “Applicable Time”), and agrees with the Sales Manager, as follows:
(i) The Company meets the requirements for use of Form N-2 under the Securities Act and the Securities Act Rules and Regulations. At the time the Registration Statement became effective, the Registration Statement complied in all material respects with the requirements of the Securities Act and Act, the Securities Act Rules and Regulations and the Trust Indenture Act and did not include 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 Prospectus complied, as of its date, in all material respects, with the requirements of the Securities Act and Act, the Securities Act Rules and Regulations and the Trust Indenture Act as of the Applicable Time, did not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; the Prospectus, as of the date of the Prospectus Supplement, will comply in all material respects with the requirements of the Securities Act and Act, the Securities Act Rules and RegulationsRegulations and the Trust Indenture Act, and the Prospectus, as of the date of the Prospectus Supplement and the Applicable Time, did not and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the representations and warranties in this subsection shall not apply to (i) that part of the Registration Statement which shall constitute the Statement of Eligibility Under the Trust Indenture Act on Form T-1 of the Trustee, or (ii) statements in or omissions from the Registration Statement or Prospectus or any amendments or supplements thereto made in reliance upon and in conformity with information relating to the Sales Manager furnished to the Company in writing by the Sales Manager expressly for use in the Registration Statement or Prospectus, it being understood and agreed that the only such information furnished by the Sales Manager consists of the following information in the Prospectus Supplement furnished on behalf the Sales Manager: the last paragraph under the caption “Plan of Distribution.” The Shares Placement Securities have been duly registered under the Securities Act pursuant to the Registration Statement. .
(ii) Each of the Registration Statement, any Rule 462(b) Registration Statement and any post-effective amendments thereto has become effective, and no order suspending the effectiveness of the Registration Statement has been issued by the Commission.
(ii) The Registration Statement has become effective; the Commission has not issued, and is not, to the knowledge of the Company, threatening to issue, any stop order under the Securities Act or other order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto, and no proceedings for such purpose have been instituted or are pending or, to the best knowledge of the Company are contemplated or threatened by the Commission.
(iii) The Company has elected to be regulated by the Commission as a business development company under the Investment Company Act of 1940, as amended (the “Investment Company Act”), and has not withdrawn that election, and the Commission has not ordered that such election be withdrawn nor to the best of the Company’s knowledge have proceedings to effectuate such withdrawal been initiated or threatened by the Commission.
(iv) To the Company’s knowledge, PricewaterhouseCoopers LLP, the accounting firm that audited the financial statements of the Company set forth in the Registration Statement and Prospectus, were and are independent registered accounting firms as required by the Securities Act and the Securities Act Rules and Regulations and the rules and regulations of the Public Company Accounting Oversight Board.
(v) The financial statements, together with the related schedules and notes thereto, of the Company set forth in the Registration Statement and the Prospectus fairly present in all material respects the results of operations and financial condition of the Company and its subsidiaries as of the dates indicated and the results of their operations for the respective periods specified, and are prepared in conformity with U.S. generally accepted accounting principles (“GAAP”) and the selected financial information and data included in the Registration Statement and the Prospectus have been prepared on a basis consistent with that of the books and records of the Company.
(vi) The Company (A) has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland, has full corporate power and authority to conduct its business as described in the Prospectus; (B) has full power and authority to execute and deliver this Agreement Agreement, the Indenture and the Notes, and to consummate the transactions contemplated hereby; and (C) is duly licensed or qualified to do business as a foreign corporation and in good standing in each jurisdiction where the Company is required to be qualified or licensed or in good standing, except where the failure to be so qualified or licensed or to be in good standing would not result in a material adverse effect upon the financial condition, business or operations of the Company and its subsidiaries, taken as a whole (“Material Adverse Effect”).
(vii) The Company is not, or with the giving of notice or lapse of time or both would not be, in default or violation with respect to its charter or bylaws or governing documents. The Company is not, or with the giving of notice or lapse of time or both would not be, in default in the performance or observance of any obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which the Company is a party or by which the Company is bound or to which any of the properties or assets of the Company is subject, or in violation of any statutes, laws, ordinances or governmental rules or regulations or any orders or decrees to which it is subject.
(viii) The Company’s authorized capitalization is as set forth in the Prospectus; the outstanding shares of common stock, par value $0.001 per share (the “Common Stock Stock”) have been duly authorized and validly issued and are fully paid and non-assessable and conform in all material respects to the description thereof in the Prospectus under the heading “Description of Capital Stock;.” the Shares have been duly authorized by all requisite corporate action on the part The outstanding shares of the Company for the issuance and sale of the Shares to the Sales Manager pursuant to this Agreement and, when the Shares are delivered and paid for pursuant to this Agreement on the Applicable Time, such Shares will Common Stock have been validly issued and fully paid and non-assessable. The stockholders of the Company have no preemptive rights with respect to the Shares shares of Common Stock and none of the outstanding shares of capital stock of the Company have been issued in violation of any preemptive rights of any security holder.
(ix) Except as set forth in the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, (A) the Company and its subsidiaries have not incurred any liabilities or obligations, direct or contingent, or entered into any transactions, other than in the ordinary course of business, that are material to the Company and its subsidiaries taken as a whole, (B) there has not been any material change in the capital stock of the Company, or any material adverse change, or, to the Company’s knowledge, any development involving a prospective material adverse change, in the condition (financial or otherwise), business, net worth, property or results of operations of the Company (excluding changes due to investment activities in the ordinary course of business), (C) there has been no dividend or distribution declared or paid in respect of the Company’s capital stock and (D) the Company and its subsidiaries have not incurred any short-term debt or long-term debt that is, in either case, material with respect to the Company and its subsidiaries taken as a whole (excluding debt resulting from a draw down on the Company’s credit facilities).
(x) There is no pending or, to the knowledge of the Company, threatened action, suit or proceeding, legal or governmental, to which the Company or any of its subsidiaries is a party, before or by any court or governmental agency or body, that is required to be described in the Prospectus and is not so described.
(xi) There are no contracts, agreements or understandings of the Company or any of its subsidiaries that are required to be filed as exhibits to the Registration Statement by the Securities Act or by the Securities Act Rules and Regulations that have not been so filed or incorporated by reference therein as permitted by the Securities Act Rules and Regulations.
(xii) This Agreement has been duly authorized, executed and delivered by the Company.
(xiii) The Company has all requisite corporate power and authority to execute, issue, sell and perform its obligations contemplated by the Notes. The Notes have been duly authorized by the Company and, when duly issued and executed by the Company in accordance with this Agreement and the Indenture, assuming due authentication of the Notes by the Trustee, upon delivery by the Company against payment therefor in accordance with the terms hereof and the Indenture, will be validly issued and delivered and will constitute valid and binding obligations of the Company entitled to the benefits of the Indenture, enforceable against the Company in accordance with their terms, except as such enforceability may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, and other laws relating to or affecting creditors’ rights generally and by general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law); the Notes will conform to the description thereof in the Prospectus.
(xiv) The Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Indenture. The Indenture has been duly and validly authorized, executed and delivered by the Company and constitutes the valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as such enforceability may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, and other laws relating to or affecting creditors’ rights generally and by general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law). The Indenture conforms in all material respects to the description thereof in the Prospectus, as amended or supplemented.
(xv) The execution, delivery and performance of this AgreementAgreement and the Indenture, the issuance and sale of the Shares Placement Securities and the consummation of the transactions contemplated herein and the Prospectus (including the issuance and sale of the Shares Placement Securities and the use of the proceeds from the sale of the Shares Placement Securities as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or result in a breach or violation of any of the terms and provisions of, constitute a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any of its subsidiaries pursuant to, any agreement, indenture, mortgage, lease or other instrument to which the Company or any of its subsidiaries is a party or by which it or any of its properties or assets may be bound nor will such action result in any violation of the Company’s or any of its subsidiaries’ charter, bylaws or other organizational documents, or any order, law, statute, rule, regulation, judgment, order, writ or decree of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Company or any of its subsidiaries or any of their respective assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its subsidiaries.
Appears in 1 contract
Sources: Debt Distribution Agreement (Hercules Capital, Inc.)
Representations and Warranties by the Company. The Company represents and warrants to the Sales Manager each Underwriter as of the date hereof and as of each Representation Date (as defined herein) on which a certificate is required to be delivered pursuant to Section 7(n) of this Agreement hereof, and as of the time of each sale of any Shares or any securities pursuant Closing Time referred to this Agreement (the “Applicable Time”)in Section 2(b) hereof, and agrees with the Sales Managereach Underwriter, as follows:
(i) The Company meets the requirements for use of Form N-2 S-3 under the Securities 1933 Act. The Registration Statement, as amended at the date of this Agreement, meets the requirements set forth in Rule 415(a)(1)(x) under the 1933 Act and complies in all other material respects with said Rule.
(ii) On the Securities Act Rules and Regulations. At date of the time effectiveness of the Registration Statement became effectiveStatement, on the date hereof, as of the Closing Time, and when either of the preliminary prospectus or the Prospectus is filed with the Commission in accordance with the provisions of Rule 424(b), the Registration Statement complied Statement, as amended as of any such time, and the Prospectus, as supplemented as of any such time, and the Indenture will comply in all material respects with the applicable requirements of the Securities 1933 Act, the Trust Indenture Act of 1939, as amended (the "1939 Act"), and the 1934 Act and the Securities Act Rules and Regulations and respective rules thereunder; the Registration Statement, as amended as of any such time, did not include 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 Prospectus complied, as of its date, in all material respects, with the requirements of the Securities Act and the Securities Act Rules and Regulations as of the Applicable Time, did will not contain any untrue statement of a material fact or 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, therein not misleading; the Prospectus, as of the date of the Prospectus Supplement, will comply in all material respects with the requirements of the Securities Act and the Securities Act Rules and Regulations, and the Prospectus, as supplemented as of the date of the Prospectus Supplement and the Applicable Timeany such time, did not and will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no representations or warranties as to (i) that part of the Registration Statement which shall constitute the Statement of Eligibility and warranties in this subsection shall not apply to statements Qualification (Form T-1) of the Trustee under the 1939 Act or (ii) the information contained in or omissions omitted from the Registration Statement or the Prospectus (or any amendments or supplements thereto made supplement thereto) in reliance upon and in conformity with information relating to the Sales Manager furnished in writing to the Company in writing by the Sales Manager expressly any Underwriter specifically for use in connection with the Registration Statement or Prospectus, it being understood and agreed that the only such information furnished by the Sales Manager consists of the following information in the Prospectus Supplement furnished on behalf the Sales Manager: the last paragraph under the caption “Plan of Distribution.” The Shares have been duly registered under the Securities Act pursuant to the Registration Statement. Each of the Registration Statement, any Rule 462(b) Registration Statement and any post-effective amendments thereto has become effective, and no order suspending the effectiveness preparation of the Registration Statement has been issued by and the Commission.
Prospectus (ii) The Registration Statement has become effective; the Commission has not issued, and is not, to the knowledge of the Company, threatening to issue, any stop order under the Securities Act or other order suspending the effectiveness of the Registration Statement or any post-effective amendment supplement thereto, and no proceedings for such purpose have been instituted or are pending or, to the best knowledge of the Company are contemplated or threatened by the Commission).
(iii) The Company has elected to be regulated by the Commission as a business development company under the Investment Company Act of 1940, as amended (the “Investment Company Act”), and has not withdrawn that election, and the Commission has not ordered that such election be withdrawn nor to the best of the Company’s knowledge have proceedings to effectuate such withdrawal been initiated or threatened by the Commission.
(iv) To the Company’s knowledge, PricewaterhouseCoopers LLP, the accounting firm that audited the financial statements of the Company set forth in the Registration Statement and Prospectus, were and are independent registered accounting firms as required by the Securities Act and the Securities Act Rules and Regulations and the rules and regulations of the Public Company Accounting Oversight Board.
(v) The financial statements, together with the related schedules and notes thereto, of the Company set forth in the Registration Statement and the Prospectus fairly present in all material respects the results of operations and financial condition of the Company and its subsidiaries as of the dates indicated and the results of their operations for the respective periods specified, and are prepared in conformity with U.S. generally accepted accounting principles and the selected financial information and data included in the Registration Statement and the Prospectus have been prepared on a basis consistent with that of the books and records of the Company.
(vi) The Company (A) has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland, has full corporate power and authority to conduct its business as described in the Prospectus; (B) has full power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby; and (C) is duly licensed or qualified to do business as a foreign corporation and in good standing in each jurisdiction where the Company is required to be qualified or licensed or in good standing, except where the failure to be so qualified or licensed or to be in good standing would not result in a material adverse effect upon the financial condition, business or operations of the Company and its subsidiaries, taken as a whole (“Material Adverse Effect”).
(vii) The Company is not, or with the giving of notice or lapse of time or both would not be, in default or violation with respect to its charter or bylaws or governing documents. The Company is not, or with the giving of notice or lapse of time or both would not be, in default in the performance or observance of any obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which the Company is a party or by which the Company is bound or to which any of the properties or assets of the Company is subject, or in violation of any statutes, laws, ordinances or governmental rules or regulations or any orders or decrees to which it is subject.
(viii) The Company’s authorized capitalization is as set forth in the Prospectus; the outstanding shares of Common Stock have been duly authorized and validly issued and are fully paid and non-assessable and conform in all material respects to and, at the description thereof in the Prospectus under the heading “Description of Capital Stock;” the Shares Closing Time, will have been duly authorized executed by all requisite corporate action on the part Company and, when authenticated, issued and delivered in the manner provided for in the Indenture and delivered against payment of the purchase price therefor as provided in this Agreement, will constitute legal, valid and binding obligations of the Company for entitled to the issuance and sale benefits of the Shares to the Sales Manager pursuant to this Agreement and, when the Shares are delivered and paid for pursuant to this Agreement on the Applicable Time, such Shares will have been validly issued and fully paid and non-assessable. The stockholders of the Company have no preemptive rights with respect to the Shares and none of the outstanding shares of capital stock of the Company have been issued in violation of any preemptive rights of any security holderIndenture.
(ix) Except as set forth in the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, (A) the Company and its subsidiaries have not incurred any liabilities or obligations, direct or contingent, or entered into any transactions, other than in the ordinary course of business, that are material to the Company and its subsidiaries taken as a whole, (B) there has not been any material change in the capital stock of the Company, or any material adverse change, or, to the Company’s knowledge, any development involving a prospective material adverse change, in the condition (financial or otherwise), business, net worth, property or results of operations of the Company (excluding changes due to investment activities in the ordinary course of business), (C) there has been no dividend or distribution declared or paid in respect of the Company’s capital stock and (D) the Company and its subsidiaries have not incurred any short-term debt or long-term debt that is, in either case, material with respect to the Company and its subsidiaries taken as a whole (excluding debt resulting from a draw down on the Company’s credit facilities).
(x) There is no pending or, to the knowledge of the Company, threatened action, suit or proceeding, legal or governmental, to which the Company or any of its subsidiaries is a party, before or by any court or governmental agency or body, that is required to be described in the Prospectus and is not so described.
(xi) There are no contracts, agreements or understandings of the Company or any of its subsidiaries that are required to be filed as exhibits to the Registration Statement by the Securities Act or by the Securities Act Rules and Regulations that have not been so filed or incorporated by reference therein as permitted by the Securities Act Rules and Regulations.
(xii) This Agreement has been duly authorized, executed and delivered by the Company.
(xiii) The execution, delivery and performance of this Agreement, the issuance and sale of the Shares and the consummation of the transactions contemplated herein and the Prospectus (including the issuance and sale of the Shares and the use of the proceeds from the sale of the Shares as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or result in a breach or violation of any of the terms and provisions of, constitute a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any of its subsidiaries pursuant to, any agreement, indenture, mortgage, lease or other instrument to which the Company or any of its subsidiaries is a party or by which it or any of its properties or assets may be bound nor will such action result in any violation of the Company’s or any of its subsidiaries’ charter, bylaws or other organizational documents, or any order, law, statute, rule, regulation, judgment, order, writ or decree of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Company or any of its subsidiaries or any of their respective assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its subsidiaries.
Appears in 1 contract
Representations and Warranties by the Company. The Company represents and warrants to the Sales Manager Agent as of the date hereof and as of hereof, the Applicable Time, each Representation Date (as defined hereinbelow) on which a certificate is required to be delivered pursuant to Section 7(nand any Date of Delivery (as defined below) of this Agreement and as of the time of each sale of any Shares or any securities pursuant to this Agreement (the “Applicable Time”), and agrees with the Sales ManagerAgent, and the Adviser and the Administrator, jointly and severally, represent and warrant to and agree with the Sales Agent as of the date hereof, the Applicable Time, each Representation Date (as defined below) and any Date of Delivery (as defined below), as follows:
(i) The Company has prepared and filed with the Commission the Registration Statement, including a related base prospectus, for registration under the 1933 Act of the offering and sale of the Securities. Such Registration Statement, including any post-effective amendments thereto, has become effective. The Company may have filed, as part of an amendment to the Registration Statement or pursuant to Rule 424(b), one or more amendments thereto, each of which has previously been furnished to you. The Notification of Election was filed with the Commission on February 6, 2004 under the 1940 Act. The Company has filed with the Commission the Prospectus related to the Securities in accordance with Rule 424(b). The Prospectus contains all information required by the 1933 Act and the 1940 Act and the Regulations. The Registration Statement meets the requirements for use set forth in Rule 415(a)(1) of Form N-2 under the Securities 1933 Act and the Securities Act Rules and Regulations. At the time Regulations (“Rule 415(a)(1)”).
(ii) Each of the Registration Statement and any post-effective amendment thereto, at the time it became effectiveeffective (the “Effective Time”), the Registration Statement complied in all material respects with the applicable requirements of the Securities 1933 Act, the 1940 Act and the Securities Act Rules Regulations. At the Effective Time, at the Applicable Time and Regulations and did not include at each Date of Delivery, neither the Registration Statement nor any post-effective amendment thereto contained, contains or will contain any 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 not misleading; provided, however, that the Company makes no representations or warranties as to the information contained in or omitted from the Registration Statement (or any post-effective amendment ) in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of the Sales Agent specifically for inclusion therein (collectively, the “Sales Agent Information”). The Commission has not issued a stop order under the 1933 Act suspending the effectiveness of the Registration Statement or any post-effective amendment thereto.
(iii) The Prospectus and any amendment or supplement thereto complied when filed with the Commission in all material respects with the provisions of the 1933 Act, the 1940 Act and the Regulations. Neither the Prospectus compliednor any amendment or supplement thereto, as of its datetheir respective date(s), in all material respects, at the time of any filing with the requirements of the Securities Act and the Securities Act Rules and Regulations as of Commission pursuant to Rule 424(b), at the Applicable TimeTime or at any Date of Delivery, did not contained, contains or will contain any untrue statement of a material fact or omitted, omits or will omit to state a any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; the Prospectus, as of the date of the Prospectus Supplement, will comply in all material respects with the requirements of the Securities Act and the Securities Act Rules and Regulations, and the Prospectus, as of the date of the Prospectus Supplement and the Applicable Time, did not and will not contain any untrue statement of a material fact or omit to state a material fact necessary order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no representations and or warranties in this subsection shall not apply as to statements any Sales Agent Information contained in or omissions omitted from the Registration Statement or Prospectus (or any amendments amendment or supplements thereto made in reliance upon and in conformity with information relating to the Sales Manager furnished to the Company in writing by the Sales Manager expressly for use in the Registration Statement or Prospectus, it being understood and agreed that the only such information furnished by the Sales Manager consists of the following information in the Prospectus Supplement furnished on behalf the Sales Manager: the last paragraph under the caption “Plan of Distribution.” supplement thereto). The Shares have been duly registered under the Securities Act pursuant to the Registration Statement. Each of the Registration Statement, any Rule 462(b) Registration Statement and any post-effective amendments thereto has become effective, and no order suspending the effectiveness of the Registration Statement has been issued by the Commission.
(ii) The Registration Statement has become effective; the Commission has not issued, and is not, to issued any order preventing or suspending the knowledge use of the Company, threatening to issue, any stop order under the Securities Act or other order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto, and no proceedings for such purpose have been instituted or are pending or, to the best knowledge of the Company are contemplated or threatened by the Commission.
(iii) The Company has elected to be regulated by the Commission as a business development company under the Investment Company Act of 1940, as amended (the “Investment Company Act”), and has not withdrawn that election, and the Commission has not ordered that such election be withdrawn nor to the best of the Company’s knowledge have proceedings to effectuate such withdrawal been initiated or threatened by the CommissionProspectus.
(iv) To the Company’s knowledge, PricewaterhouseCoopers LLP, the accounting firm that audited the financial statements of the Company set forth in the Registration Statement and Prospectus, were and are independent registered accounting firms as required by the Securities Act and the Securities Act Rules and Regulations and the rules and regulations of the Public Company Accounting Oversight Board.
(v) The financial statements, together with the related schedules and notes thereto, of the Company set forth in the Registration Statement and the Prospectus fairly present in all material respects the results of operations and financial condition of the Company and its subsidiaries as of the dates indicated and the results of their operations for the respective periods specified, and are prepared in conformity with U.S. generally accepted accounting principles and the selected financial information and data included in the Registration Statement and the Prospectus have been prepared on a basis consistent with that of the books and records of the Company.
(vi) The Company (A) has been duly incorporated and is validly existing in good standing as a corporation in good standing under the laws of the State of Maryland, has with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus; (B) has full power , and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby; and (C) is duly licensed or qualified to do business as a foreign corporation and is in good standing in under the laws of each jurisdiction where which requires such qualification. Other than MFIC Bethesda CLO 1 LLC, MFIC Amplify SPV LLC, MFIC Omada SPV LLC, MFIC Ostrich SPV LLC, MFIC Transformer SPV LLC, MFIC Hera SPV LLC, MFIC Lender LLC, AP Surf Investments, LLC, AIC SB Holdings, LLC, MFIC Poseidon SPV LLC, AIC SHD Holdings, LLC, MFIC Boreas SPV LLC, AIC Spotted Hawk Holdings, LLC, AIC Pelican Holdings, LLC, AIC SPV Holdings II, LLC, Merx Aviation Finance, LLC, Dynamic Tankers, LLC and MESA Tankers LLC, the Company is required to be qualified or licensed or in good standinghas no direct subsidiaries, except where i.e., no entity of which the failure to be so qualified or licensed or to be in good standing would not result in a material adverse effect upon the financial condition, business or operations Company owns more than 50% of the Company and its subsidiaries, taken as a whole (“Material Adverse Effect”)voting interests.
(viiv) The Company is not, or with the giving of notice or lapse of time or both would not be, in default or violation with respect to its charter or bylaws or governing documents. The Company is not, or with the giving of notice or lapse of time or both would not be, in default in the performance or observance of any obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which the Company is a party or by which the Company is bound or to which any of the properties or assets of the Company is subject, or in violation of any statutes, laws, ordinances or governmental rules or regulations or any orders or decrees to which it is subject.
(viii) The Company’s authorized capitalization is as set forth in the Prospectus; the outstanding shares of Common Stock have been duly authorized and validly issued and are fully paid and non-assessable and conform in all material respects to the description thereof in the Prospectus under the heading “Description of Capital Stock;” the Shares have been duly authorized by all requisite corporate action on the part of the Company for the issuance and sale of the Shares to the Sales Manager pursuant to this Agreement and, when the Shares are delivered and paid for pursuant to this Agreement on the Applicable Time, such Shares will have been validly issued and fully paid and non-assessable. The stockholders of the Company have no preemptive rights with respect to the Shares and none All of the outstanding shares of capital stock of the Company have been duly and validly authorized and issued in violation and are fully paid and nonassessable and are free of any preemptive rights of any security holder.
(ix) Except or similar rights; and, except as set forth in the Prospectus, subsequent no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding.
(vi) The Company has taken all required action under the 1933 Act, the 1940 Act and the Regulations to make the public offering and consummate the sale of the Securities as contemplated by this Agreement.
(vii) There are no agreements, contracts, indentures, leases, permits or other instruments of a character required to be described in the Registration Statement or the Prospectus, or to be filed as an exhibit to the respective dates Registration Statement, which are not described or filed as required; the statements in the Registration Statement and the Prospectus under the headings “Management”, “Certain Relationships”, “Certain U.S. Federal Income Tax Consequences”, “Description of Our Debt Securities” and “Regulation,” insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings.
(viii) The execution and delivery of and the performance by the Company of its obligations under this Agreement and the Company Agreements have been duly and validly authorized by the Company and this Agreement and the Company Agreements have been duly executed and delivered by the Company and constitute the valid and legally binding agreements of the Company, except as the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or thereafter in effect relating to creditors’ rights generally, (ii) general principles of equity and the discretion of the court before which information any proceeding therefor may be brought or (iii) the enforceability of any rights to indemnification or contribution that may be violative of the public policy underlying any law, rule or regulation (regardless of whether enforceability is given considered in a proceeding in equity or law).
(ix) The authorized, issued and outstanding Common Stock of the Company is as set forth in the Registration Statement and the Prospectus under the caption “Capitalization.” The outstanding Common Stock has been duly authorized and validly issued and is fully paid and non-assessable. None of the outstanding Common Stock of the Company was issued in violation of the preemptive or other similar rights of any securityholder of the Company. The Common Stock (including the Securities) conforms to all statements relating thereto contained in the Registration Statement and the Prospectus and such description conforms to the rights set forth in the instruments defining the same; and the Securities to be issued and sold by the Company hereunder have been duly authorized and, when issued and delivered and paid for as provided herein, will be duly and validly issued, will be fully paid and non-assessable and will conform in all material respects to the descriptions thereof in the Registration Statement and the Prospectus; and the issuance of the Securities are not subject to any preemptive or similar rights.
(x) When the Notification of Election and any amendment or supplement thereto were each filed with the Commission, each (Ai) contained all statements required to be stated therein in accordance with, and complied in all material respects with the requirements of, the 1940 Act and the 1940 Act Regulations, as applicable to business development companies, and (ii) did not include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading. The Company has duly elected to be treated by the Commission under the 1940 Act as a “business development company” (the “BDC Election”) and the Company and its subsidiaries have not incurred any liabilities or obligations, direct or contingent, or entered into any transactions, other than in the ordinary course of business, that are material to the Company and its subsidiaries taken as a whole, (B) there has not been filed with the Commission any material change in the capital stock notice of withdrawal of the CompanyBDC Election pursuant to Section 54(c) of the 1940 Act. The BDC Election is effective, and no order of suspension or any material adverse change, revocation of such election has been issued or proceedings therefor initiated or, to the Company’s knowledge, any development involving a prospective material adverse changethreatened by the Commission.
(xi) The Company is, and at all times through the completion of the transactions contemplated hereby will be, in compliance in all material respects with the condition (financial applicable provisions of the 1933 Act and the 1940 Act. No person is serving or otherwise)acting as an officer, business, net worth, property director or results of operations investment adviser of the Company except in accordance with the applicable provisions of the 1940 Act, the 1940 Act Regulations, the Investment Advisers Act of 1940, as amended (excluding changes due to investment activities in the ordinary course of business“Advisers Act”), (C) there has been no dividend or distribution declared or paid in respect and the rules and regulations of the Company’s capital stock Commission promulgated under the Advisers Act (the “Advisers Act Regulations”). The Company and (D) the Adviser are not aware that any executive officer of the Company and its subsidiaries have not incurred any short-term debt or long-term debt that is, in either case, material plans to terminate employment with respect to the Company and its subsidiaries taken as a whole (excluding debt resulting from a draw down on the Company’s credit facilities).
(xxii) There is no pending orNo consent, to the knowledge approval, authorization, filing with or order of the Company, threatened action, suit or proceeding, legal or governmental, to which the Company or any of its subsidiaries is a party, before or by any court or governmental agency or body, that body is required to be described in connection with the transactions contemplated herein or in the Prospectus Company Agreements, except such as have been made or obtained under the 1933 Act, the 1940 Act, the 1934 Act, the Advisers Act, the rules and is not so described.
(xi) There are no contracts, agreements or understandings regulations of the Company or Financial Industry Regulatory Authority (“FINRA”) and the Nasdaq Global Select Market, and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of its subsidiaries that are required to be filed as exhibits to the Registration Statement Securities by the Securities Act or by Sales Agent in the Securities Act Rules manner contemplated herein and Regulations that have not been so filed or incorporated by reference therein as permitted by in the Securities Act Rules and Regulations.
(xii) This Agreement has been duly authorized, executed and delivered by the CompanyProspectus.
(xiii) The execution, delivery and performance of this Agreement, Neither the issuance and sale of the Shares and Securities, the execution, delivery or performance of this Agreement or any of the Company Agreements, nor the consummation of the transactions contemplated herein and or therein contemplated, nor the Prospectus (including the issuance and sale fulfillment of the Shares and the use of the proceeds from the sale of the Shares as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder do not and will not, whether with terms hereof or without the giving of notice or passage of time or boththereof, conflict with or with, result in a breach or violation of any of the terms and provisions of, constitute a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any properties property or assets of the Company or any of its subsidiaries pursuant to, (i) the Articles of Incorporation or by-laws of the Company, (ii) the terms of any agreementindenture, indenturecontract, lease, mortgage, lease 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 by bound or to which it or any of its properties or assets may be bound nor will such action result in any violation of the Company’s or any of its subsidiaries’ charter, bylaws or other organizational documentsproperty is subject, or (iii) any orderstatute, law, statute, rule, regulation, judgment, order, writ order or decree applicable to the Company of any court or governmental agency or court, regulatory body, domestic administrative agency, governmental body, arbitrator or foreign, other authority having jurisdiction over the Company or any of its subsidiaries properties.
(xiv) No holders of securities of the Company have rights to the registration of such securities under the Registration Statement.
(xv) The financial statements, together with related schedules and notes, included or incorporated by reference in the Prospectus and the Registration Statement present fairly the financial condition, results of operations and cash flows of each of the Company, Merx Aviation Finance, LLC (“Merx”), Apollo Senior Floating Rate Fund Inc. (“AFT”) and Apollo Tactical Income Fund Inc. (“AIF”), respectively, as of the dates and for the periods indicated, comply as to form with the applicable accounting requirements of the 1933 Act and the 1940 Act, as applicable, and have been prepared in conformity with U.S. generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods involved (except as otherwise noted therein); and the other financial and statistical information and data included in the Registration Statement and the Prospectus are accurately derived from such financial statements and the books and records of the Company, Merx, AFT and AIF, as the case may be.
(xvi) No action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or its property is pending or, to the best knowledge of their respective assetsthe Company, properties threatened that (i) could reasonably be expected to have a material adverse effect on the performance of this Agreement or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder consummation of any noteof the transactions herein contemplated or (ii) could reasonably be expected to have a material adverse effect on the condition (financial or otherwise), debenture prospects, earnings, business or properties of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto).
(xvii) The Company owns, leases, or has rights to use, all such properties as are necessary to the conduct of its operations as presently conducted.
(xviii) The Company is not in violation or default of (i) any provision of its Articles of Incorporation or by-laws, (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other evidence agreement, obligation, condition, covenant or instrument to which it is a party or bound or to which its property is subject or (iii) any statute, law, rule, regulation, judgment, order or decree of indebtedness (any court, regulatory body, administrative agency, governmental body, arbitrator or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by other authority having jurisdiction over the Company or any of its subsidiariesproperties, except in the case of clauses (ii) and (iii) for such violations or defaults that would not have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company, whether or not arising from transactions in the ordinary course of business.
(xix) Except as otherwise stated therein, since the date as of which information is given in the Prospectus (i) there has been no material adverse change in the condition (financial or otherwise), prospects, earnings, business or properties of the Company, whether or not arising in the ordinary course of business and (ii) there has been no transaction entered into by the Company which is material to the Company other than those in the ordinary course of its business.
(xx) At the time of filing the Registration Statement and any post-effective amendment thereto, at the earliest time thereafter that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) of the 1933 Act) of the Securities and as of the date hereof, the Company was not and is not an “ineligible issuer,” and is a well-known seasoned issuer, in each case as defined under the 1933 Act and the 1933 Act Regulations, in each case at the times specified in the 1933 Act in connection with the offering of the Securities, without taking account of any determination by the Commission pursuant to Rule 405 under the 1933 Act that it is not necessary that the Company be considered an ineligible issuer. The Registration Statement is a “automatic shelf registration statement” as defined in Rule 405 of the 1933 Act, that automatically became effective not more than three years prior to the date hereof; the Company has not received from the Commission any notice pursuant to Rule 401(g)(2) of the 1934 Act objecting to use of the automatic shelf registration statement form and the Company has not otherwise ceased to be eligible to use the automatic shelf registration form.
(xxi) Deloitte & Touche LLP, who has certified the financial statements of each of the Company, AFT and AIF for the fiscal years ended December 31, 2022 and December 31, 2023 and delivered its report with respect to the audited financial statements of each of the Company, AFT and AIF for those fiscal years included or incorporated by reference in the Registrati
Appears in 1 contract
Sources: Equity Distribution Agreement (MidCap Financial Investment Corp)
Representations and Warranties by the Company. The Company represents and warrants to each of the Sales Manager Underwriters, as of the date hereof and as of each Representation Date hereof, the Applicable Time (as defined hereinhereinafter defined), the Closing Time (as hereinafter defined) on which and each Date of Delivery, if any (as hereinafter defined) (in each case, a certificate is required to be delivered pursuant to Section 7(n) of this Agreement and as of the time of each sale of any Shares or any securities pursuant to this Agreement (the “Applicable TimeRepresentation Date”), and agrees with the Sales Manager, as follows:
(i) The Company meets the requirements for use of Form N-2 S-3 in connection with the issuance of its securities, including the Shares. The Registration Statement was declared effective by the Commission under the Securities 1933 Act, and no stop order suspending the effectiveness of the Registration Statement or any part thereof has been issued under the 1933 Act and no proceedings for that purpose have been instituted or are pending or, to the Securities Act Rules knowledge of the Company, are contemplated by the Commission or by the state securities authority of any jurisdiction, and Regulationsany request on the part of the Commission for additional information has been complied with. At the time respective times the Original Registration Statement and any post-effective amendments thereto became effectiveeffective and at each deemed effective date with respect to the Underwriters pursuant to Rule 430B(f)(2) of the 1933 Act Regulations, the Registration Statement complied and any amendments and supplements thereto complied, comply and will comply in all material respects with the requirements of the Securities 1933 Act and the Securities 1933 Act Rules and Regulations Regulations, and did not, do not include any 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; . Neither the Prospectus compliednor any amendments or supplements thereto, as at the time the Prospectus or any such amendment or supplement was first used, at the Closing Time and at any Date of its dateDelivery, in all material respectsincluded, with the requirements of the Securities Act and the Securities Act Rules and Regulations as of the Applicable Time, did not contain any 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, base prospectus filed as part of the date of Original Registration Statement or any amendment thereto) complied when filed with the Prospectus Supplement, will comply Commission in all material respects with the requirements of the Securities 1933 Act and the Securities 1933 Act Rules Regulations and Regulationsany such preliminary prospectus was, and the ProspectusProspectus delivered or made available to the Underwriters for use in connection with this offering will be at the time of such delivery, as identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T. As of the date of the Prospectus Supplement and the Applicable Time, any Issuer Free Writing Prospectus (as defined below) issued at or prior to the Applicable Time, the Statutory Prospectus (as defined below) and the information to be conveyed orally by the Underwriters to purchasers of the Shares at the Applicable Time as set forth in Schedule B hereto, all considered together (collectively, the “General Disclosure Package”) did not and or will not contain not, as the case may be, include any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the . The representations and warranties in this subsection the preceding three paragraphs shall not apply to statements in or omissions from the Registration Statement or Prospectus any post-effective amendment thereto, any preliminary prospectus, the Prospectus, or any amendments or supplements thereto thereto, or the General Disclosure Package made in reliance upon and in conformity with information relating to the Sales Manager furnished to the Company in writing by or on behalf of any Underwriter through the Sales Manager Representatives expressly for use in the Registration Statement or Prospectus, it being understood and agreed that (including the only such information furnished by prospectus filed with the Sales Manager consists of the following information in the Prospectus Supplement furnished on behalf the Sales Manager: the last paragraph under the caption “Plan of Distribution.” The Shares have been duly registered under the Securities Act pursuant to the Original Registration Statement. Each of the Registration Statement, any Rule 462(b) Registration Statement and any post-effective amendments thereto has become effective, and no order suspending the effectiveness of the Registration Statement has been issued by the Commission.
(ii) The Registration Statement has become effective; the Commission has not issued, and is not, to the knowledge of the Company, threatening to issue, any stop order under the Securities Act or other order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto, and no proceedings for such purpose have been instituted or are pending orany preliminary prospectus, to the best knowledge of the Company are contemplated or threatened by the Commission.
(iii) The Company has elected to be regulated by the Commission as a business development company under the Investment Company Act of 1940, as amended (the “Investment Company Act”), and has not withdrawn that election, and the Commission has not ordered that such election be withdrawn nor to the best of the Company’s knowledge have proceedings to effectuate such withdrawal been initiated or threatened by the Commission.
(iv) To the Company’s knowledge, PricewaterhouseCoopers LLP, the accounting firm that audited the financial statements of the Company set forth in the Registration Statement and Prospectus, were and are independent registered accounting firms as required by the Securities Act and the Securities Act Rules and Regulations and the rules and regulations of the Public Company Accounting Oversight Board.
(v) The financial statements, together with the related schedules and notes thereto, of the Company set forth in the Registration Statement and the Prospectus fairly present in all material respects the results of operations and financial condition of the Company and its subsidiaries as of the dates indicated and the results of their operations for the respective periods specified, and are prepared in conformity with U.S. generally accepted accounting principles and the selected financial information and data included in the Registration Statement and the Prospectus have been prepared on a basis consistent with that of the books and records of the Company.
(vi) The Company (A) has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland, has full corporate power and authority to conduct its business as described in the Prospectus; (B) has full power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby; and (C) is duly licensed or qualified to do business as a foreign corporation and in good standing in each jurisdiction where the Company is required to be qualified or licensed or in good standing, except where the failure to be so qualified or licensed or to be in good standing would not result in a material adverse effect upon the financial condition, business or operations of the Company and its subsidiaries, taken as a whole (“Material Adverse Effect”).
(vii) The Company is not, or with the giving of notice or lapse of time or both would not be, in default or violation with respect to its charter or bylaws or governing documents. The Company is not, or with the giving of notice or lapse of time or both would not be, in default in the performance or observance of any obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which the Company is a party or by which the Company is bound or to which any of the properties or assets of the Company is subject, or in violation of any statutes, laws, ordinances or governmental rules or regulations or any orders or decrees to which it is subject.
(viii) The Company’s authorized capitalization is as set forth in the Prospectus; the outstanding shares of Common Stock have been duly authorized and validly issued and are fully paid and non-assessable and conform in all material respects to the description thereof in the Prospectus under the heading “Description of Capital Stock;” the Shares have been duly authorized by all requisite corporate action on the part of the Company for the issuance and sale of the Shares to the Sales Manager pursuant to this Agreement and, when the Shares are delivered and paid for pursuant to this Agreement on the Applicable Time, such Shares will have been validly issued and fully paid and non-assessable. The stockholders of the Company have no preemptive rights with respect to the Shares and none of the outstanding shares of capital stock of the Company have been issued in violation of any preemptive rights of any security holder.
(ix) Except as set forth in the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, (A) the Company and its subsidiaries have not incurred or any liabilities amendments or obligations, direct or contingentsupplements thereto, or entered into any transactions, other than in the ordinary course of business, that are material to the Company and its subsidiaries taken as a whole, (B) there has not been any material change in the capital stock of the Company, or any material adverse change, or, to the Company’s knowledge, any development involving a prospective material adverse change, in the condition (financial or otherwise), business, net worth, property or results of operations of the Company (excluding changes due to investment activities in the ordinary course of business), (C) there has been no dividend or distribution declared or paid in respect of the Company’s capital stock and (D) the Company and its subsidiaries have not incurred any short-term debt or long-term debt that is, in either case, material with respect to the Company and its subsidiaries taken as a whole (excluding debt resulting from a draw down on the Company’s credit facilities).
(x) There is no pending or, to the knowledge of the Company, threatened action, suit or proceeding, legal or governmental, to which the Company or any of its subsidiaries is a party, before or by any court or governmental agency or body, that is required to be described in the Prospectus and is not so described.
(xi) There are no contracts, agreements or understandings of the Company or any of its subsidiaries that are required to be filed as exhibits to the Registration Statement by the Securities Act or by the Securities Act Rules and Regulations that have not been so filed or incorporated by reference therein as permitted by the Securities Act Rules and Regulations.
(xii) This Agreement has been duly authorized, executed and delivered by the Company.
(xiii) The execution, delivery and performance of this Agreement, the issuance and sale of the Shares and the consummation of the transactions contemplated herein and the Prospectus (including the issuance and sale of the Shares and the use of the proceeds from the sale of the Shares as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or result in a breach or violation of any of the terms and provisions of, constitute a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any of its subsidiaries pursuant to, any agreement, indenture, mortgage, lease or other instrument to which the Company or any of its subsidiaries is a party or by which it or any of its properties or assets may be bound nor will such action result in any violation of the Company’s or any of its subsidiaries’ charter, bylaws or other organizational documents, or any order, law, statute, rule, regulation, judgment, order, writ or decree of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Company or any of its subsidiaries or any of their respective assets, properties or operationsGeneral Disclosure Package. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its subsidiaries.in this subsection and elsewhere in this Agreement:
Appears in 1 contract
Representations and Warranties by the Company. The Company hereby represents and warrants to the Sales Manager Jefferies as of the date hereof and as of each Representation Date (as defined hereinbelow) on which a certificate is required to be delivered pursuant to Section 7(n7(o) of this Agreement Agreement, as of each Applicable Time and as of the time of each sale of any Shares or any securities pursuant to this Agreement Settlement Date (the “Applicable Time”as defined below), and agrees with the Sales ManagerJefferies, as follows:
(i1) The Company meets the requirements for use of Form N-2 S-3 under the Securities Act. The Registration Statement and any post-effective amendments thereto have become effective under the Securities Act. No stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Company, are contemplated by the Commission, and any request on the part of the Commission for additional information has been complied with.
(2) At the respective times the Registration Statement and any post-effective amendments thereto became or become effective, at each deemed effective date of the Registration Statement with respect to Jefferies pursuant to Rule 430B(f)(2) of the Securities Act Rules and Regulations. At the time the Registration Statement became effectiveat each Settlement Date, the Registration Statement complied and will comply in all material respects with the requirements of the Securities Act and the Securities Act Rules and Regulations and did not include any 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; .
(3) The Prospectus and any amendments or supplements thereto, at the time the Prospectus compliedor any such amendment or supplement was issued and at each Settlement Date, as of its date, complied and will comply in all material respects, respects with the requirements of the Securities Act and the Securities Act Rules and Regulations as of the Applicable Time, did not contain any and will not 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; .
(4) Each Issuer Free Writing Prospectus relating to the Securities, as of its issue date and as of each Applicable Time and Settlement Date, 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, or included, includes or, when considered together with the Registration Statement and the Prospectus and all amendments and supplement thereto, and all other Issuer Free Writing Prospectuses and all amendments and supplements thereto, 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 light of the circumstances, prevailing at such time, not misleading.
(5) The representations and warranties set forth in the preceding paragraphs 2, 3 and 4 shall not apply to statements in or omissions from the Registration Statement or the Prospectus, as of amended or supplemented, or any Issuer Free Writing Prospectus relating to the date of Securities, made in reliance upon and in conformity with information furnished to the Prospectus SupplementCompany in writing by Jefferies expressly for use therein.
(6) The documents incorporated or deemed to be incorporated by reference in the Registration Statement and the Prospectus, when they became effective or at the time they were or hereafter are filed with the Commission, complied and will comply in all material respects with the requirements of the Securities Act and Exchange Act, as applicable, and, when read together with the Securities Act Rules and Regulations, and other information in the Prospectus, as of (a) at the date of time the Prospectus Supplement Registration Statement became effective, (b) at each Applicable Time and the Applicable Time(c) at each Settlement Date, did not and will not contain any an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided.
(7) At the time of filing, however, that the representations and warranties in this subsection shall not apply to statements in or omissions from the Registration Statement and at the time of the most recent amendment thereto for purposes of complying with Section 10(a)(3) of the Securities Act (whether by post-effective amendment, incorporated report filed pursuant to Section 13 or Prospectus 15(d) of the Exchange Act or any amendments or supplements thereto made in reliance upon and in conformity with information relating to Form of Prospectus), at the Sales Manager furnished to earliest time thereafter that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) of the Securities Act) of the Securities and at the date hereof, the Company was not and is not an “ineligible issuer,” as defined in writing by Rule 405 of the Sales Manager expressly for use Securities Act.
(8) The descriptions in the Registration Statement and the Prospectus of the contracts, leases and other legal documents therein described present fairly the information required to be shown, and there are no contracts, leases, or other documents of a character required to be described in the Registration Statement or Prospectus, it being understood and agreed that the only such information furnished by the Sales Manager consists of the following information in the Prospectus Supplement furnished on behalf the Sales Manager: the last paragraph under the caption “Plan of Distribution.” The Shares have been duly registered under the Securities Act pursuant or to be filed as exhibits to the Registration Statement. Each of the Registration Statement, any Rule 462(b) Registration Statement and any post-effective amendments thereto has become effective, and which are not described or filed as required; there are no order suspending the effectiveness of the Registration Statement has been issued by the Commission.
(ii) The Registration Statement has become effective; the Commission has not issued, and is notlegal or governmental proceedings pending or, to the knowledge of the Company, threatening threatened, to issue, which the Company or any stop order under the Securities Act or other order suspending the effectiveness of Subsidiary (as defined below) is subject that are required to be described in the Registration Statement or any post-effective amendment thereto, the Prospectus and are not so described; there are no proceedings for such purpose have been instituted statutes or are pending or, regulations applicable to the best knowledge Company or any Subsidiary or certificates, permits or other authorizations from governmental regulatory officials or bodies required to be obtained or maintained by the Company or any Subsidiary of a character required to be disclosed that are not so described therein as required; all agreements between the Company or any Subsidiary and third parties expressly referenced in the Registration Statement and the Prospectus are legal, valid and binding obligations of the Company or the Subsidiary, enforceable in accordance with their respective terms, except to the extent enforceability may be limited by bankruptcy, insolvency, reorganization or other laws of general applicability relating to or affecting creditors’ rights and by general equity principles; there are contemplated no business relationships or threatened by related-party transactions involving the CommissionCompany or any Subsidiary required to be described in the Registration Statement and the Prospectus which have not been so described as required.
(iii9) The Deloitte & Touche LLP, who audited the financial statements and supporting schedules of the Company has elected and its Subsidiaries for its fiscal years ended December 31, 2018 and 2017, which are included or incorporated by reference in the Registration Statement and the Prospectus, is an independent registered public accounting firm with respect to be regulated the Company as required by the Commission as a business development company under Securities Act, the Investment Exchange Act and the Public Company Act of 1940, as amended Accounting Oversight Board (the “Investment Company ActPCAOB”). KPMG LLP, who audited the financial statements and has not withdrawn that electionsupporting schedules of the Company and its Subsidiaries for its fiscal year ended December 31, 2016, which are included or incorporated by reference in the Registration Statement and the Commission has not ordered that such election be withdrawn nor Prospectus, is an independent registered public accounting firm with respect to the best of the Company’s knowledge have proceedings to effectuate such withdrawal been initiated or threatened Company as required by the CommissionSecurities Act, the Exchange Act and the PCAOB.
(iv10) To the Company’s knowledge, PricewaterhouseCoopers LLP, the accounting firm that audited the The financial statements of the Company set forth and its Subsidiaries, (collectively, the “Company Financial Statements”), included or incorporated by reference in the Registration Statement and the Prospectus, were and are independent registered accounting firms as any financial statements required by Rule 3-14 of Regulation S-X (the “Acquisition Financial Statements”), which are incorporated by reference in the Registration Statement and the Prospectus, present fairly the financial position of the Company and its consolidated Subsidiaries at the dates indicated, or, if applicable, with respect to the Acquisition Financial Statements, the respective property or tenant; and all such financial statements have been prepared in conformity with United States generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods involved and comply with all applicable accounting requirements under the Securities Act and the Securities Act Rules Exchange Act, except as disclosed therein, and Regulations that unaudited financial statements may not contain all footnotes required by GAAP and subject, in the rules and regulations case of the Public Company Accounting Oversight Board.
(v) The unaudited financial statements, together to normal year-end audit adjustments. The supporting schedules, if any, included or incorporated by reference in the Registration Statement and the Prospectus present fairly, in accordance with GAAP, the information required to be stated therein. There are no financial statements or schedules required to be included or incorporated by reference in the Registration Statement or the Prospectus under the Securities Act, which are not so included or incorporated. If applicable, the unaudited pro forma financial information (including the related notes) included or incorporated by reference in the Registration Statement or the Prospectus complies as to form in all material respects with the related schedules applicable accounting requirements of the Securities Act, and notes thereto, management of the Company set forth believes that the assumptions underlying the pro forma adjustments are reasonable. If applicable, such pro forma adjustments have been properly applied to the historical amounts in the compilation of the information and such information fairly presents with respect to the Company and its consolidated Subsidiaries, the financial position, results of operations and other information purported to be shown therein at the respective dates and for the respective periods specified. No pro forma financial information is required to be included or incorporated by reference in the Registration Statement or the Prospectus which is not so included or incorporated. Any non-GAAP financial measures, as defined under Regulation G of the Securities Act, included or incorporated by reference in the Registration Statement and the Prospectus are permitted for use in documents filed with the Commission and comply with Regulation G under the Exchange Act and Item 10 of Regulation S-K of the Securities Act, to the extent applicable. The ratio of earnings to fixed charges contained in the Registration Statement and the Prospectus has been calculated in accordance with Item 503(d) of Regulation S-K. The interactive data in eXtensible Business Reporting Language incorporated by reference in the Registration Statement and the Prospectus fairly present presents the information called for in all material respects and has been prepared in accordance with the results Commission’s rules and guidelines applicable thereto.
(11) Since the respective dates as of operations and which information is given in the Registration Statement or the Prospectus, except as otherwise stated therein, (A) there has been no material adverse change, nor any development or event involving a prospective material adverse change, in the condition, financial condition or otherwise, or in the earnings, investment portfolio, business affairs or business prospects of the Company and its subsidiaries the Subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business (a “Material Adverse Effect”), (B) there have been no transactions entered into by any of the dates indicated Company or the Subsidiaries, which are material with respect to the Company and the results of their operations for the respective periods specifiedSubsidiaries, considered as one enterprise, and are prepared in conformity with U.S. generally accepted accounting principles and the selected financial information and data included (C) except as disclosed in the Registration Statement and Company’s press releases, there has been no dividend or distribution of any kind declared, paid or made by the Prospectus have been prepared Company on a basis consistent with that any class of the books and records its shares of the Companybeneficial interest.
(vi12) The Company (A) has been duly incorporated organized and is validly an existing as a corporation statutory real estate investment trust in good standing under the laws of the State of Maryland, has full corporate with power and authority (trust or other) to own and operate its properties and conduct its business as described in the Registration Statement and the Prospectus; (B) has full power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby; and (C) is duly licensed or qualified to do business as a foreign corporation and in good standing in each jurisdiction where the Company is required to be qualified or licensed or in good standing, except . Except where the failure to be so qualified or licensed qualify or to be in good standing would not result in a material adverse effect Material Adverse Effect, the Company is duly qualified to do business as a foreign entity in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification.
(13) Exhibit 21 of the Company’s most recent Annual Report on Form 10-K, attached hereto as Exhibit D (which may be modified from time to time by the Company upon notice to Jefferies in writing), is a true, correct and complete list of all of the financial condition, business or operations subsidiaries of the Company controlled directly or indirectly by the Company (each, a “Subsidiary” and collectively, the “Subsidiaries”), including the jurisdiction of incorporation or organization of each such Subsidiary and each Subsidiary that is a “significant subsidiary” as defined by Rule 1-02 of Regulation S-X. For the avoidance of doubt, the term “Subsidiary” as used in this Agreement and the Exhibits hereto includes, without limitation, LCIF. The Company hereby represents and warrants that no “significant subsidiary” as defined by Rule 1-02 of Regulation S-X has been formed by the Company since the date of Exhibit D.
(14) Each Subsidiary has been duly incorporated or formed, as the case may be, and each is existing and in good standing under the laws of its subsidiariesrespective jurisdiction of incorporation or formation, taken with power and authority (corporate, partnership, trust or other) to own or lease its properties and conduct its business as described in the Registration Statement and the Prospectus. Except where the failure to so qualify or to be in good standing would not result in a whole (“Material Adverse Effect”).
(vii) The Company , each Subsidiary is not, duly qualified to do business as a foreign entity in good standing in all other jurisdictions in which its ownership or with lease of property or the giving conduct of notice or lapse of time or both would not be, in default or violation with respect to its charter or bylaws or governing documentsbusiness requires such qualification. The Company is not, or with the giving of notice or lapse of time or both would not be, in default in the performance or observance of any obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which the Company is a party or by which the Company is bound or to which any All of the properties or assets issued and outstanding equity interests of the Company is subject, or in violation of any statutes, laws, ordinances or governmental rules or regulations or any orders or decrees to which it is subject.
(viii) The Company’s authorized capitalization is as set forth in the Prospectus; the outstanding shares of Common Stock each Subsidiary have been duly authorized and validly issued and are fully paid and non-assessable assessable; and conform the equity interests of each Subsidiary owned by the Company or another Subsidiary, directly or through subsidiaries, are owned free from security interests, liens, claims, encumbrances and defects, except (i) as disclosed in all material respects the Registration Statement and the Prospectus or (ii) where such security interests, liens, claims, encumbrances and defects would not have a Material Adverse Effect. Immediately prior to the description thereof in the Prospectus under the heading “Description of Capital Stock;” the Shares have been duly authorized by all requisite corporate action on the part consummation of the Company for transactions contemplated hereby and the issuance and application of the Net Proceeds from the sale of the Shares to Securities, the Sales Manager pursuant to this Agreement and, when Company owns the Shares are delivered sole general partnership interest and paid for pursuant to this Agreement on the Applicable Time, such Shares will have been validly issued and fully paid and non-assessable. The stockholders a majority of the Company have no preemptive rights with respect to the Shares and none of the outstanding shares of capital stock of the Company have been issued limited partnership interests in violation of any preemptive rights of any security holderLCIF.
(ix15) Except The Company’s authorized and issued capitalization is as set forth in the Prospectusdocuments incorporated by reference in the Registration Statement and the Prospectus and has not changed, except for (i) subsequent issuances, if any, pursuant to this Agreement or the respective dates as of which information is given Alternative Distribution Agreement or pursuant to reservations, agreements, benefit plans or other plans and arrangements referred to, or incorporated by reference, in the Registration Statement and the Prospectus, (Aii) the Company and its subsidiaries have not incurred any liabilities or obligations, direct or contingent, or entered into any transactions, other than in the ordinary course purchases of business, that are material to the Company and its subsidiaries taken as a whole, (B) there has not been any material change in the capital stock of the Company, or any material adverse change, or, securities pursuant to the Company’s knowledgeannounced stock repurchase program referred to, any development involving a prospective material adverse changeor incorporated by reference, in the condition (financial or otherwise), business, net worth, property or results of operations of the Company (excluding changes due to investment activities in the ordinary course of business), (C) there has been no dividend or distribution declared or paid in respect of the Company’s capital stock Registration Statement and (D) the Company and its subsidiaries have not incurred any short-term debt or long-term debt that is, in either case, material with respect to the Company and its subsidiaries taken as a whole (excluding debt resulting from a draw down on the Company’s credit facilities).
(x) There is no pending or, to the knowledge of the Company, threatened action, suit or proceeding, legal or governmental, to which the Company or any of its subsidiaries is a party, before or by any court or governmental agency or body, that is required to be described in the Prospectus and is not so described.
(xiiii) There such other changes as are no contractsreferred to, agreements or understandings of the Company or any of its subsidiaries that are required to be filed as exhibits to incorporated by reference, in the Registration Statement by the Securities Act or by the Securities Act Rules and Regulations that have not been so filed or incorporated by reference therein as permitted by the Securities Act Rules Prospectus; this Agreement and Regulations.
(xii) This Agreement has been duly authorized, executed and delivered by the Company.
(xiii) The execution, delivery and performance of this Agreement, the issuance and sale of the Shares and the consummation Securities hereunder has been duly authorized by all appropriate action of the transactions contemplated herein and the Prospectus (including the issuance and sale Company, all outstanding shares of the Shares and the use of the proceeds from the sale of the Shares as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or result in a breach or violation of any of the terms and provisions of, constitute a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any properties or assets beneficial interest of the Company or any are, and, when the Securities have been delivered and paid for in accordance with this Agreement on each Settlement Date, such Securities will be, validly issued, fully paid and non-assessable and will conform to the description thereof contained the Registration Statement and the Prospectus; the issued and outstanding units of its subsidiaries pursuant to, any agreement, indenture, mortgage, lease or other instrument to which limited partnership interest in LCIF (the “Units”) have been duly authorized by LCIF and have been validly issued in accordance with the Partnership Agreement of LCIF; all of the issued and outstanding shares of beneficial interest of the Company or any of its subsidiaries is a party or by which it or any of its properties or assets may be bound nor will such action result in any violation of the Company’s or any of its subsidiaries’ charterand outstanding Units have been offered, bylaws or other organizational documents, or any order, law, statute, rule, regulation, judgment, order, writ or decree of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Company or any of its subsidiaries or any of their respective assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness sold and issued by the Company or any of its subsidiaries.LCIF in compliance with all ap
Appears in 1 contract
Sources: Equity Distribution Agreement (Lexington Realty Trust)
Representations and Warranties by the Company. The Company represents and warrants to the Sales Manager each Underwriter as of the date hereof and hereof, as of each Representation Date the Closing Time (as defined hereinin Section 2(b) on which a certificate is required to be delivered pursuant to Section 7(n) of this Agreement and as of the time of each sale of any Shares or any securities pursuant to this Agreement (the “Applicable Time”)hereof, and agrees with the Sales Manager, each Underwriter as follows:
(i) The Company meets Each of the requirements for use of Form N-2 Registration Statement and any Rule 462(b) Registration Statement has become effective under the Securities Act and no stop order suspending the Securities effectiveness of the Registration Statement or any Rule 462(b) Registration Statement has been issued under the Act Rules and Regulationsno 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. At the time respective times the Registration Statement, any Rule 462(b) Registration Statement and any post-effective amendments thereto became effectiveeffective and at the Closing Time, the Registration Statement, the 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 and the Securities 1933 Act Rules and Regulations and did not include any 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; . Neither the Prospectus compliednor any amendments or supplements thereto, as of its date, in all material respects, with at the requirements of time the Securities Act Prospectus or any such amendment or supplement was issued and at the Securities Act Rules and Regulations as of the Applicable Closing Time, did not contain any 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 Prospectus, as of the date of the Prospectus Supplement, will comply in all material respects with the requirements of the Securities Act and the Securities Act Rules and Regulations, and the Prospectus, as of the date of the Prospectus Supplement and the Applicable Time, did not and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the . The representations and warranties in this subsection shall not apply to statements in or omissions from the Registration Statement or Prospectus or any amendments or supplements thereto made in reliance upon and in conformity with information relating to the Sales Manager furnished to the Company in writing by the Sales Manager any Underwriter through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use in the Registration Statement or Prospectus. The Prospectus, it being understood when filed pursuant to Rule 424(b) under the Act, will comply in all material respects with the 1933 Act Regulations and agreed that the only such information furnished by the Sales Manager consists of the following information in the Prospectus Supplement furnished on behalf delivered to the Sales Manager: Underwriters for use in connection with this offering was substantially identical to the last paragraph under electronically transmitted copies thereof filed with the caption “Plan of Distribution.” The Shares have been duly registered under the Securities Act Commission pursuant to ▇▇▇▇▇, except to the Registration Statement. Each of the Registration Statement, any Rule 462(b) Registration Statement and any postextent permitted by Regulation S-effective amendments thereto has become effective, and no order suspending the effectiveness of the Registration Statement has been issued by the Commission.T.
(ii) The Registration Statement has become effective; only Restricted Affiliates (as defined in the Commission has not issued, and is not, to Indenture) as of the knowledge date hereof are those listed on Schedule C hereto. Each of the Company, threatening to issue, any stop order under the Securities Act or other order suspending the effectiveness each "significant subsidiary" (as defined in Section 210.1-02 of the Registration Statement or any postRegulation S-effective amendment thereto, and no proceedings for such purpose have been instituted or are pending or, to the best knowledge X) of the Company are contemplated or threatened by (each a "Subsidiary" and collectively, the Commission.
(iii"Subsidiaries") The Company has elected to be regulated by the Commission as a business development company under the Investment Company Act of 1940, as amended (the “Investment Company Act”), and has not withdrawn that election, and the Commission has not ordered that such election be withdrawn nor to the best of the Company’s knowledge have proceedings to effectuate such withdrawal been initiated or threatened by the Commission.
(iv) To the Company’s knowledge, PricewaterhouseCoopers LLP, the accounting firm that audited the financial statements of the Company set forth in the Registration Statement and Prospectus, were and are independent registered accounting firms as required by the Securities Act and the Securities Act Rules and Regulations and the rules and regulations of the Public Company Accounting Oversight Board.
(v) The financial statements, together with the related schedules and notes thereto, of the Company set forth in the Registration Statement and the Prospectus fairly present in all material respects the results of operations and financial condition of the Company and its subsidiaries as of the dates indicated and the results of their operations for the respective periods specified, and are prepared in conformity with U.S. generally accepted accounting principles and the selected financial information and data included in the Registration Statement and the Prospectus have been prepared on a basis consistent with that of the books and records of the Company.
(vi) The Company (A) Restricted Affiliates has been duly incorporated organized and is validly existing as a corporation and in good standing under the laws of its jurisdiction of organization, with all requisite power and authority under such laws, and all necessary authorizations, approvals, orders, licenses, certificates and permits of and from regulatory or governmental officials, bodies and tribunals, (a) to own, lease and operate their respective properties and to conduct their respective businesses as now conducted and as described in the State Prospectus and (b), in the case of Marylandthe Company, to enter into, deliver, incur and perform its obligations under the Operative Documents, except, in the case of the foregoing subclause (a) for authorizations, approvals, orders, leases, certificates and permits, the failure of which to possess could not reasonably be expected to have a Material Adverse Effect (as defined below); and are all duly qualified to do business and in good standing in all other jurisdictions where the ownership or leasing of their respective properties or the conduct of their respective businesses requires such qualification, except where the failure to be so qualified could not reasonably be expected to have a material adverse effect (i) on the business, condition (financial or otherwise), results of operations, business affairs or business prospects of the Company, the Subsidiaries and the Restricted Affiliates taken as a whole or (ii) on the ability of the Company to perform any of its obligations under the Operative Documents or to consummate any of the transactions contemplated hereby or thereby (a "Material Adverse Effect").
(iii) The Securities have been duly authorized by the Company, and the Company has full all requisite corporate power and authority to conduct execute, issue and deliver the Securities, and to incur and perform its business obligations provided for therein.
(iv) The Securities, when executed, authenticated and issued in accordance with the terms of the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee) and when delivered against payment of the purchase price therefor as described provided in this Agreement, will constitute valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with the terms thereof; subject, in the Prospectus; case of each of the foregoing, to (Ba) applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors' rights and remedies generally, (b) general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and (c) the discretion of the court before which any proceeding therefor may be brought (clauses (a), (b) and (c) being referred to herein as the "Enforceability Limitations").
(v) The Company has full all requisite corporate power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby; Indenture and (C) is duly licensed or qualified to do business as a foreign corporation and in good standing in each jurisdiction where the Company is required to be qualified or licensed or in good standing, except where the failure to be so qualified or licensed or to be in good standing would not result in a material adverse effect upon the financial condition, business or operations of the Company and perform its subsidiaries, taken as a whole (“Material Adverse Effect”).
(vii) The Company is not, or with the giving of notice or lapse of time or both would not be, in default or violation with respect to its charter or bylaws or governing documentsobligations provided for therein. The Company is not, or with the giving of notice or lapse of time or both would not be, in default in the performance or observance of any obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which the Company is a party or by which the Company is bound or to which any of the properties or assets of the Company is subject, or in violation of any statutes, laws, ordinances or governmental rules or regulations or any orders or decrees to which it is subject.
(viii) The Company’s authorized capitalization is as set forth in the Prospectus; the outstanding shares of Common Stock have been duly authorized and validly issued and are fully paid and non-assessable and conform in all material respects to the description thereof in the Prospectus under the heading “Description of Capital Stock;” the Shares have been duly authorized by all requisite corporate action on the part of the Company for the issuance and sale of the Shares to the Sales Manager pursuant to this Agreement and, when the Shares are delivered and paid for pursuant to this Agreement on the Applicable Time, such Shares will have been validly issued and fully paid and non-assessable. The stockholders of the Company have no preemptive rights with respect to the Shares and none of the outstanding shares of capital stock of the Company have been issued in violation of any preemptive rights of any security holder.
(ix) Except as set forth in the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, (A) the Company and its subsidiaries have not incurred any liabilities or obligations, direct or contingent, or entered into any transactions, other than in the ordinary course of business, that are material to the Company and its subsidiaries taken as a whole, (B) there has not been any material change in the capital stock of the Company, or any material adverse change, or, to the Company’s knowledge, any development involving a prospective material adverse change, in the condition (financial or otherwise), business, net worth, property or results of operations of the Company (excluding changes due to investment activities in the ordinary course of business), (C) there has been no dividend or distribution declared or paid in respect of the Company’s capital stock and (D) the Company and its subsidiaries have not incurred any short-term debt or long-term debt that is, in either case, material with respect to the Company and its subsidiaries taken as a whole (excluding debt resulting from a draw down on the Company’s credit facilities).
(x) There is no pending or, to the knowledge of the Company, threatened action, suit or proceeding, legal or governmental, to which the Company or any of its subsidiaries is a party, before or by any court or governmental agency or body, that is required to be described in the Prospectus and is not so described.
(xi) There are no contracts, agreements or understandings of the Company or any of its subsidiaries that are required to be filed as exhibits to the Registration Statement by the Securities Act or by the Securities Act Rules and Regulations that have not been so filed or incorporated by reference therein as permitted by the Securities Act Rules and Regulations.
(xii) This Agreement has been been, and, as of the Closing Date, the Indenture will have been, duly authorized, executed and delivered by the Company, and upon such execution by the Company (assuming the due authorization, execution and delivery by parties thereto other than the Company) and, as of the Closing Date, the Indenture will constitute, the valid and binding obligation of the Company, enforceable against the Company in accordance with the terms hereof or thereof, subject only to the Enforceability Limitations. The Indenture has been duly qualified under the 1939 Act.
(xiiivi) The executionNo consent, delivery waiver, authorization, approval, license, qualification or order of, or filing or registration with, any court or governmental or regulatory agency or body, is required for the issue and sale of the Securities, the performance by the Company of this Agreementits obligations under the Operative Documents, or for the consummation of any of the transactions contemplated hereby or thereby, including, without limitation, the issuance and sale of the Shares Securities hereunder, except, such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus.
(vii) The issuance, sale and delivery of the Securities, the execution, delivery and performance by the Company of this Agreement and the consummation by the Company of the transactions contemplated herein hereby and the Prospectus (including the issuance and sale of the Shares and the use of the proceeds from the sale of the Shares as described in the Prospectus under and the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder the terms of the foregoing do not and will not, whether and, at the Closing Time, will not conflict with or without the giving of notice or passage of time or both, conflict with constitute or result in a breach or violation by the Company or any of the Subsidiaries or the Restricted Affiliates of (A) any of the terms and or provisions of, or constitute a default (or Repayment Event (as defined belowan event which, with notice or lapse of time or both, would constitute a default) by any of the Company, the Subsidiaries or the Restricted Affiliates or give rise to any right to accelerate the maturity or require the prepayment of any indebtedness under, or result in the creation or imposition of any lien, charge or encumbrance upon any properties property or assets of the Company Company, the Subsidiaries or the Restricted Affiliates under any of its subsidiaries pursuant to, any agreementcontract, indenture, mortgage, lease deed of trust, loan agreement, note, lease, license, franchise agreement, authorization, permit, certificate or other instrument agreement or document to which the Company or any of its subsidiaries the Company, the Subsidiaries or the Restricted Affiliates is a party or by which it any of them may be bound, or to which any of them or any of its properties their respective assets or assets may be bound nor will businesses is subject (collectively, "Contracts") (and the Company has no knowledge of any conflict, breach or violation of such action result terms or provisions or of any such default, in any violation such case, which has occurred or will so result), (B) the articles of incorporation, by-laws or similar organizational documents (each, an "Organizational Document") of each of the Company’s , the Subsidiaries and the Restricted Affiliates or (C) any of its subsidiaries’ charter, bylaws or other organizational documents, or any order, law, statute, rule, rule or regulation, or any judgment, decree or order, writ or decree in any such case, of any domestic or foreign court or governmental or regulatory agency or body, domestic or foreign, other body having jurisdiction over the Company or any of its subsidiaries the Subsidiaries or the Restricted Affiliates or any of their respective assets, properties or assets.
(viii) The Securities and the Indenture will each conform in all material respects to the descriptions thereof in the Prospectus.
(ix) The audited and unaudited consolidated financial statements of the Company included in the Prospectus, including the notes thereto, present fairly in all material respects the financial position of the Company and its consolidated subsidiaries at the dates indicated, and the statement of operations, stockholders' equity and cash flows of the Company and its consolidated subsidiaries for the periods have been prepared in conformity with United States generally accepted accounting principles ("GAAP") applied on a consistent basis throughout the periods involved. As Coopers & ▇▇▇▇▇▇▇ L.L.P., which has examined certain of such financial statements as set forth in its report included in the Prospectus, is an independent public accounting firm with respect to the Company and its Subsidiaries within the meaning of Regulation S-X under the Act. The audited and unaudited consolidated financial statements included in the Prospectus of Erols Internet, Inc. ("Erols"), including the notes thereto, present fairly in all material respects the financial position of Erols and its consolidated subsidiaries, at the dates indicated, and the statement of operations, stockholders' equity and cash flows of Erols and its consolidated subsidiaries for the periods have been prepared in conformity with United States GAAP applied on a consistent basis throughout the periods involved. The selected financial data and the summary financial information included in the Prospectus present fairly in all material respects the information shown therein and have been compiled on a basis consistent with that of the financial statements included in the Prospectus. Ernst & Young LLP, which has examined certain of such financial statements as set forth in its report included in the Prospectus, is an independent public accounting firm with respect to Erols and its subsidiaries within the meaning of Regulation S-X under the Act. The pro forma financial information relating to the Company and its Subsidiaries and the related notes thereto included in the Prospectus present fairly in all material respects the information shown therein, have been prepared in all material respects in accordance with the Commission's rules and guidelines with respect to pro forma financial adjustments and have been properly computed on the bases described therein, and the assumptions used hereinin the preparation thereof are reasonable and the adjustments used therein are appropriate to give effect to the transactions and circumstances referred to therein.
(x) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, except as otherwise specifically stated therein, there has been no (A) material adverse change in the business, condition (financial or otherwise), results of operations, business affairs or business prospects of the Company, the Subsidiaries and the Restricted Affiliates taken as a “Repayment Event” means whole, whether or not arising in the ordinary course of business (a "Material Adverse Change"), (B) transaction entered into by any event of the Company, the Subsidiaries or condition which gives the Restricted Affiliates, other than in the ordinary course of business, that is material to the Company, the Subsidiaries and the Restricted Affiliates, taken as a whole or (C) dividend or distribution of any kind declared, paid or made by the Company on its capital stock.
(xi) The Company has the authorized, issued and outstanding capitalization set forth in the Prospectus under the column "Actual" under the caption "Capitalization;" all of the outstanding capital stock of the Company has been duly authorized and validly issued, is fully paid and nonassessable and was not issued in violation of any preemptive or similar rights (whether provided contractually or pursuant to any Organizational Document). Except as set forth in the Prospectus, the Company does not own, directly or indirectly, any material amount of shares, or any other material amount of equity or long-term debt securities or have any material equity interest in any firm, partnership, joint venture or other entity. Except as set forth in the Prospectus, no holder of any note, debenture securities of the Company is entitled to have such securities under the Registration Statement or otherwise registered by the Company under the Act. All of the outstanding capital stock or other evidence ownership interests of indebtedness each of the Subsidiaries and the Restricted Affiliates has been duly authorized and validly issued, is fully paid and nonassessable and was not issued in violation of any preemptive or similar rights (whether provided contractually or pursuant to any Organizational Document).
(xii) None of the Company, the Subsidiaries or the Restricted Affiliates is (A) in violation of its respective Organizational Documents, (B) in default (or, with notice or lapse of time or both, would be in default) in the performance or observance of any obligation, agreement, covenant or condition contained in any Contract or (C) in violation of any law, statute, judgment, decree, order, rule or regulation of any domestic or foreign court with jurisdiction over the Company, the Subsidiaries or the Restricted Affiliates or any person acting on of their respective assets or properties, or other governmental or regulatory authority, agency or other body, other than, in the case of clause (B) or (C), such holder’s behalf) defaults or violations which could not, individually or in the right aggregate, reasonably be expected to require have or result in a Material Adverse Effect; and any real property and buildings held under lease by the repurchaseCompany, redemption the Subsidiaries or repayment of all or a portion of such indebtedness the Restricted Affiliates are held by the Company or such Subsidiary or Restricted Affiliate, as the case may be, under valid, subsisting and enforceable leases with such exceptions which could not, individually or in the aggregate, reasonably be expected to have or result in a Material Adverse Effect.
(xiii) Except as described in the Prospectus, each of the Company, the Subsidiaries and the Restricted Affiliates has obtained all consents, approvals, orders, certificates, licenses, permits, franchises and other authorizations, in each case material to the operations of the Company (collectively, the "Licenses") of and from, and has made all declarations and filings with, all governmental and regulatory authorities, all self-regulatory organizations and all courts and other tribunals necessary to own, lease, license and use its properties and assets and to conduct its businesses in the manner described in the Prospectus. None of the Company, the Subsidiaries or the Restricted Affiliates has received any notice of proceedings relating to the revocation or modification of, or denial of any application for, any License which, if the subject of any unfavorable decision, ruling or finding, could, singly or in the aggregate, reasonably be expected to have or result in a Material Adverse Effect; the Company, each of the Subsidiaries and each of the Restricted Affiliates have fulfilled and performed all of their obligations with respect to all Licenses possessed by any of its subsidiaries.them, except where the failure to so fulfill and perform could not, singly or in
Appears in 1 contract
Representations and Warranties by the Company. The Company -------------------------------------------------------- represents and warrants to the Sales Manager to, and agrees with, each Underwriter as of the date hereof hereof, as of the Closing Time and as of each Representation Date of Delivery (as defined hereinif any) on which a certificate is required referred to be delivered pursuant to Section 7(n) of this Agreement and as of the time of each sale of any Shares or any securities pursuant to this Agreement (the “Applicable Time”), and agrees with the Sales Managerbelow, as follows:
(ia) The Company meets the requirements for the use of Form N-2 S-3 under the Securities 1933 Act. The Registration Statement (including any Rule 462(b) Registration Statement) has become effective under the 1933 Act and no stop order suspending the Securities effectiveness of the Registration Statement (or such Rule 462(b) Registration Statement) has been issued under the 1933 Act Rules and Regulationsno 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. In addition, the Indenture has been duly qualified under the 1939 Act. At the time respective times the Registration Statement, any Rule 462(b) Registration Statement and any post-effective amendments thereto became effectiveeffective and at the Closing Time (and, if any Option Securities are purchased, at the Date of Delivery), the Registration Statement, the 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 1933 Act and the Securities 1933 Act Rules and Regulations and did not include any 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; . Neither the Final Prospectus compliednor any amendments or supplements thereto, as at the time the Final Prospectus or any such amendment or supplement was issued and at the Closing Time (and, if any Option Securities are purchased, at the Date of its dateDelivery), in all material respects, with the requirements of the Securities Act and the Securities Act Rules and Regulations as of the Applicable Time, did not contain any 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 this subsection shall not apply to (i) statements in or omissions from the Registration Statement or Final Prospectus made in reliance upon and in conformity with information furnished to the Company in writing by any Underwriter through the Representatives expressly for use in the Registration Statement or Final Prospectus or (ii) that part of the Registration Statement which shall constitute the Statement of Eligibility (Form T-1) under the 1939 Act of the Trustee. 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 under the 1933 Act, complied when so filed in all material respects with the 1933 Act Regulations and each preliminary prospectus and the Final Prospectus delivered to the Underwriters for use in connection with the offering of the Securities will, at the time of such delivery, be identical in all material respects to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(b) The documents incorporated or deemed to be incorporated by reference in the Registration Statement and the Final Prospectus, as of at the date of time they were or hereafter are filed with the Prospectus SupplementCommission, complied and will comply in all material respects with the requirements of the Securities 1934 Act and the Securities rules and regulations of the Commission thereunder (the "1934 Act Rules and Regulations"), and and, when read together with the other information in the Final Prospectus, as at the time the Registration Statement became effective, at the time the Final Prospectus was issued and at the Closing Time (and if any Option Securities are purchased, at the Date of the date of the Prospectus Supplement and the Applicable TimeDelivery), did not and will not contain any an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, therein not misleading; provided, however, that the representations and warranties in this subsection shall not apply to statements in or omissions from the Registration Statement or Prospectus or any amendments or supplements thereto made in reliance upon and in conformity with information relating to the Sales Manager furnished to the Company in writing by the Sales Manager expressly for use in the Registration Statement or Prospectus, it being understood and agreed that the only such information furnished by the Sales Manager consists of the following information in the Prospectus Supplement furnished on behalf the Sales Manager: the last paragraph under the caption “Plan of Distribution.” The Shares have been duly registered under the Securities Act pursuant to the Registration Statement. Each of the Registration Statement, any Rule 462(b) Registration Statement and any post-effective amendments thereto has become effective, and no order suspending the effectiveness of the Registration Statement has been issued by the Commission.
(iic) The Registration Statement has become effective; the Commission There has not issued, and is not, to the knowledge of the Company, threatening to issue, any stop order under the Securities Act or other order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto, and no proceedings for such purpose have been instituted or are pending or, to the best knowledge of the Company are contemplated or threatened by the Commission.
(iii) The Company has elected to be regulated by the Commission as a business development company under the Investment Company Act of 1940, as amended (the “Investment Company Act”), and has not withdrawn that election, and the Commission has not ordered that such election be withdrawn nor to the best of the Company’s knowledge have proceedings to effectuate such withdrawal been initiated or threatened by the Commission.
(iv) To the Company’s knowledge, PricewaterhouseCoopers LLP, the accounting firm that audited the financial statements of the Company set forth in the Registration Statement and Prospectus, were and are independent registered accounting firms as required by the Securities Act and the Securities Act Rules and Regulations and the rules and regulations of the Public Company Accounting Oversight Board.
(v) The financial statements, together with the related schedules and notes thereto, of the Company set forth in the Registration Statement and the Prospectus fairly present in all material respects the results of operations and financial condition of the Company and its subsidiaries as of the dates indicated and the results of their operations for the respective periods specified, and are prepared in conformity with U.S. generally accepted accounting principles and the selected financial information and data included in the Registration Statement and the Prospectus have been prepared on a basis consistent with that of the books and records of the Company.
(vi) The Company (A) has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland, has full corporate power and authority to conduct its business as described in the Prospectus; (B) has full power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby; and (C) is duly licensed or qualified to do business as a foreign corporation and in good standing in each jurisdiction where the Company is required to be qualified or licensed or in good standing, except where the failure to be so qualified or licensed or to be in good standing would not result in a material adverse effect upon the financial condition, business or operations of the Company and its subsidiaries, taken as a whole (“Material Adverse Effect”).
(vii) The Company is not, or with the giving of notice or lapse of time or both would not be, in default or violation with respect to its charter or bylaws or governing documents. The Company is not, or with the giving of notice or lapse of time or both would not be, in default in the performance or observance of any obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which the Company is a party or by which the Company is bound or to which any of the properties or assets of the Company is subject, or in violation of any statutes, laws, ordinances or governmental rules or regulations or any orders or decrees to which it is subject.
(viii) The Company’s authorized capitalization is as set forth in the Prospectus; the outstanding shares of Common Stock have been duly authorized and validly issued and are fully paid and non-assessable and conform in all material respects to the description thereof in the Prospectus under the heading “Description of Capital Stock;” the Shares have been duly authorized by all requisite corporate action on the part of the Company for the issuance and sale of the Shares to the Sales Manager pursuant to this Agreement and, when the Shares are delivered and paid for pursuant to this Agreement on the Applicable Time, such Shares will have been validly issued and fully paid and non-assessable. The stockholders of the Company have no preemptive rights with respect to the Shares and none of the outstanding shares of capital stock of the Company have been issued in violation of any preemptive rights of any security holder.
(ix) Except as set forth in the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, (A) the Company and its subsidiaries have not incurred any liabilities or obligations, direct or contingent, or entered into any transactions, other than in the ordinary course of business, that are material to the Company and its subsidiaries taken as a whole, (B) there has not been any material change in the capital stock of the Company, or occurred any material adverse change, or, to the Company’s knowledge, or any development involving a prospective material adverse change, in the condition (condition, financial or otherwise), businessor in the earnings, net worth, property business or results of operations of the Company (excluding changes due to investment activities in the ordinary course of business), (C) there has been no dividend or distribution declared or paid in respect of the Company’s capital stock and (D) the Company and its subsidiaries have not incurred any short-term debt or long-term debt that is, in either case, material with respect to the Company and its subsidiaries taken as a whole (excluding debt resulting a "Material Adverse Effect"), from a draw down on that set forth in the Company’s credit facilities)Final Prospectus (exclusive of any amendments or supplements thereto) subsequent to the date of this Agreement.
(xd) There is no pending or, to the knowledge The Company and each "significant subsidiary" of the Company, threatened actionas such term is defined in Rule 1-02 of Regulation S-X promulgated under the 1933 Act (each, suit a "Significant Subsidiary"), have been duly incorporated or proceedingorganized, legal are validly existing as corporations or governmentallimited liability companies, as the case may be, in good standing under the laws of the jurisdictions of their incorporation or organization, have the corporate or limited liability company power and authority to own their respective properties and to conduct their respective businesses as currently conducted and are duly qualified to transact business and are in good standing in each jurisdiction in which the conduct of their respective businesses or their ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effect.
(e) The Company's authorized equity capitalization is as set forth in the Final Prospectus; the capital stock of the Company conforms in all material respects to the description thereof contained in the Final Prospectus; the outstanding shares of capital stock have been duly and validly authorized and issued and are fully paid and nonassessable; the outstanding shares of capital stock or other interests of the Significant Subsidiaries held by the Company, directly or indirectly through other subsidiaries, have been duly and validly authorized and issued and, if applicable, are fully paid and non-assessable, and are owned of record by the Company or a subsidiary free and clear of any of its subsidiaries is a partysecurity interest, before claim, lien or by any court or governmental agency or body, that is required to be described in the Prospectus and is not so describedencumbrance.
(xi) There are no contracts, agreements or understandings of the Company or any of its subsidiaries that are required to be filed as exhibits to the Registration Statement by the Securities Act or by the Securities Act Rules and Regulations that have not been so filed or incorporated by reference therein as permitted by the Securities Act Rules and Regulations.
(xiif) This Agreement has been duly authorized, executed and delivered by the Company.
(xiiig) The executionRemarketing Agreement has been duly authorized by the Company and when executed and delivered by the Company will constitute the valid and binding obligation of the Company enforceable in accordance with its terms, delivery except to the extent that enforcement thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditors' rights generally and performance (ii) general principles of this equity (regardless of whether enforceability is considered in a proceeding at law or in equity) and except as rights to indemnification, contribution or exculpation thereunder may not be enforceable, and will conform in all material respects to the description thereof in the Final Prospectus.
(h) Each of the Purchase Contract Agreement, the Pledge Agreement, the Notes and the Indenture has been duly authorized and when executed and delivered by the Company (in the case of the Notes, in accordance with the Indenture) will constitute the valid and binding obligation of the Company enforceable in accordance with its terms, except to the extent that enforcement thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity), and will conform in all material respects to the description thereof in the Final Prospectus. The Notes will be entitled to the benefits of the Indenture.
(i) The Income PRIDES have been duly authorized and when executed and delivered by the Company will constitute the valid and binding obligations of the Company enforceable in accordance with their terms, except to the extent that enforcement thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity), and will conform in all material respects to the description thereof in the Final Prospectus. The Income PRIDES and the Shares have been duly registered under the 1934 Act and have been authorized for listing on the New York Stock Exchange, subject to official notice of issuance; and the issuance of the Income PRIDES is not subject to preemptive or other similar rights.
(j) The Shares issuable pursuant to the Purchase Contract Agreement have been duly authorized and reserved for issuance by the Company and, when issued and delivered in accordance with the provisions of the Purchase Contract Agreement, will be validly issued and fully paid and non-assessable; and the issuance of such Shares is not and will not be subject to preemptive or other similar rights.
(k) None of the Company and the subsidiaries is or, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Final Prospectus, will be an "investment company" as defined in the Investment Company Act of 1940, as amended.
(l) No consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein or in the other Operative Documents, except such as have been obtained under the 1933 Act, the 1939 Act or otherwise and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated herein and in the Final Prospectus.
(m) None of the issuance and sale of the Securities pursuant hereto, the issuance and sale of the Shares pursuant to the Purchase Contracts and the consummation execution and delivery by the Company of, and performance by the Company of its obligations under, the transactions contemplated herein and the Prospectus (including the issuance and sale of the Shares Operative Documents and the use of proceeds in accordance with the proceeds from the sale of the Shares as described in the Prospectus under the caption “"Use of Proceeds”) and compliance by " section in the Company with its obligations hereunder do not and Final Prospectus, will notconflict with, whether with or without the giving of notice or passage of time or both, conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under (i) the charter or Repayment Event by-laws (as defined belowor other similar documents) under, or result in the creation or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any subsidiary, (ii) the terms of its subsidiaries pursuant toany indenture, any agreementcontract, indenturelease, mortgage, lease deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which the Company or any subsidiary is a party or is bound or to which their property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or any subsidiary of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or any subsidiary or any of their properties, except in the cases of clauses (ii) and (iii) above for any such conflict, breach, violation or default that would not reasonably be expected to have a Material Adverse Effect.
(n) Except for United States Trust Company, as trustee for the GM Hourly Employees Pension Plan, no holders of securities of the Company have rights to the registration of such securities under the Registration Statement.
(o) The Company has not paid or agreed to pay to any person any compensation for soliciting another to purchase any Securities (except as contemplated by this Agreement).
(p) There are no legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or by to which it any of the properties of the Company or any of its properties subsidiaries is subject that are required to be described in the Registration Statement or assets may the Final Prospectus and are not so described (or a description of which is not incorporated therein by reference) or of any contract or other document that is required to be bound described in the Registration Statement or the Final Prospectus or to be filed or incorporated by reference as exhibits to the Registration Statement that are not described, filed or incorporated as required.
(q) Except as set forth in the Final Prospectus (exclusive of any supplement thereto), neither the Company nor will such action result any subsidiary is in violation or default of (i) any violation of the Company’s or any provision of its subsidiaries’ charter, charter or bylaws (or other organizational documentssimilar document), (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 it is a party or bound or to which its property is subject, or (iii) any orderstatute, law, statute, rule, regulation, judgment, order, writ order or decree of any court or governmental agency or court, regulatory body, domestic administrative agency, governmental body, arbitrator or foreign, other authority having jurisdiction over the Company or such subsidiary or any of its properties, as applicable, except in the cases of clauses (ii) and (iii) above for any such violation or default that would not result in a Material Adverse Effect.
(r) KPMG LLP, who have certified certain financial statements of the Company and its consolidated subsidiaries and delivered their report with respect to the audited consolidated financial statements incorporated by reference in the Final Prospectus, are independent public accountants with respect to the Company within the meaning of the 1933 Act and the 1933 Act Regulations.
(s) The Company and its subsidiaries own or possess, or can acquire on reasonable terms, adequate patents, patent rights, licenses, inventions, copyrights, know-how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures), trademarks, service marks, trade names or other intellectual property (collectively, "Intellectual Property") necessary to carry on the business now operated by them, and neither the Company nor any of its subsidiaries has received any notice or is otherwise aware of any infringement of or conflict with asserted rights of others with respect to any Intellectual Property or of any facts or circumstances which would render any Intellectual Property invalid or inadequate to protect the interest of the Company or any of its subsidiaries therein, and which infringement or any of their respective assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives conflict (if the holder subject of any noteunfavorable decision, debenture ruling or other evidence of indebtedness (finding) or any person acting on such holder’s behalf) invalidity or inadequacy, singly or in the right to require the repurchaseaggregate, redemption or repayment of all or would result in a portion of such indebtedness by the Company or any of its subsidiariesMaterial Adverse Effect.
Appears in 1 contract
Sources: Purchase Agreement (Electronic Data Systems Corp /De/)
Representations and Warranties by the Company. The Company -------------------------------------------------------- represents and warrants to the Sales Manager to, and agrees with, each Underwriter as of the date hereof hereof, as of the Closing Time and as of each Representation Date of Delivery (as defined hereinif any) on which a certificate is required referred to be delivered pursuant to Section 7(n) of this Agreement and as of the time of each sale of any Shares or any securities pursuant to this Agreement (the “Applicable Time”), and agrees with the Sales Managerbelow, as follows:
(ia) The Company meets the requirements for the use of Form N-2 S-3 under the Securities 1933 Act. The Registration Statement (including any Rule 462(b) Registration Statement) has become effective under the 1933 Act and no stop order suspending the Securities effectiveness of the Registration Statement (or such Rule 462(b) Registration Statement) has been issued under the 1933 Act Rules and Regulationsno 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. In addition, the Indenture has been duly qualified under the 1939 Act. At the time respective times the Registration Statement, any Rule 462(b) Registration Statement and any post-effective amendments thereto became effectiveeffective and at the Closing Time (and, if any Option Securities are purchased, at the Date of Delivery), the Registration Statement, the 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 1933 Act and the Securities 1933 Act Rules and Regulations and did not include any 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; . Neither the Final Prospectus compliednor any amendments or supplements thereto, as at the time the Final Prospectus or any such amendment or supplement was issued and at the Closing Time (and, if any Option Securities are purchased, at the Date of its dateDelivery), in all material respects, with the requirements of the Securities Act and the Securities Act Rules and Regulations as of the Applicable Time, did not contain any 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 this subsection shall not apply to (i) statements in or omissions from the Registration Statement or Final Prospectus made in reliance upon and in conformity with information furnished to the Company in writing by any Underwriter through the Representatives expressly for use in the Registration Statement or Final Prospectus or (ii) that part of the Registration Statement which shall constitute the Statement of Eligibility (Form T-1) under the 1939 Act of the Trustee. 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 under the 1933 Act, complied when so filed in all material respects with the 1933 Act Regulations and each preliminary prospectus and the Final Prospectus delivered to the Underwriters for use in connection with the offering of the Securities will, at the time of such delivery, be identical in all material respects to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(b) The documents incorporated or deemed to be incorporated by reference in the Registration Statement and the Final Prospectus, as of at the date of time they were or hereafter are filed with the Prospectus SupplementCommission, complied and will comply in all material respects with the requirements of the Securities 1934 Act and the Securities rules and regulations of the Commission thereunder (the "1934 Act Rules and Regulations"), and and, when read together with the other information in the Final Prospectus, as at the time the Registration Statement became effective, at the time the Final Prospectus was issued and at the Closing Time (and if any Option Securities are purchased, at the Date of the date of the Prospectus Supplement and the Applicable TimeDelivery), did not and will not contain any an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, therein not misleading; provided, however, that the representations and warranties in this subsection shall not apply to statements in or omissions from the Registration Statement or Prospectus or any amendments or supplements thereto made in reliance upon and in conformity with information relating to the Sales Manager furnished to the Company in writing by the Sales Manager expressly for use in the Registration Statement or Prospectus, it being understood and agreed that the only such information furnished by the Sales Manager consists of the following information in the Prospectus Supplement furnished on behalf the Sales Manager: the last paragraph under the caption “Plan of Distribution.” The Shares have been duly registered under the Securities Act pursuant to the Registration Statement. Each of the Registration Statement, any Rule 462(b) Registration Statement and any post-effective amendments thereto has become effective, and no order suspending the effectiveness of the Registration Statement has been issued by the Commission.
(iic) The Registration Statement has become effective; the Commission There has not issued, and is not, to the knowledge of the Company, threatening to issue, any stop order under the Securities Act or other order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto, and no proceedings for such purpose have been instituted or are pending or, to the best knowledge of the Company are contemplated or threatened by the Commission.
(iii) The Company has elected to be regulated by the Commission as a business development company under the Investment Company Act of 1940, as amended (the “Investment Company Act”), and has not withdrawn that election, and the Commission has not ordered that such election be withdrawn nor to the best of the Company’s knowledge have proceedings to effectuate such withdrawal been initiated or threatened by the Commission.
(iv) To the Company’s knowledge, PricewaterhouseCoopers LLP, the accounting firm that audited the financial statements of the Company set forth in the Registration Statement and Prospectus, were and are independent registered accounting firms as required by the Securities Act and the Securities Act Rules and Regulations and the rules and regulations of the Public Company Accounting Oversight Board.
(v) The financial statements, together with the related schedules and notes thereto, of the Company set forth in the Registration Statement and the Prospectus fairly present in all material respects the results of operations and financial condition of the Company and its subsidiaries as of the dates indicated and the results of their operations for the respective periods specified, and are prepared in conformity with U.S. generally accepted accounting principles and the selected financial information and data included in the Registration Statement and the Prospectus have been prepared on a basis consistent with that of the books and records of the Company.
(vi) The Company (A) has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland, has full corporate power and authority to conduct its business as described in the Prospectus; (B) has full power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby; and (C) is duly licensed or qualified to do business as a foreign corporation and in good standing in each jurisdiction where the Company is required to be qualified or licensed or in good standing, except where the failure to be so qualified or licensed or to be in good standing would not result in a material adverse effect upon the financial condition, business or operations of the Company and its subsidiaries, taken as a whole (“Material Adverse Effect”).
(vii) The Company is not, or with the giving of notice or lapse of time or both would not be, in default or violation with respect to its charter or bylaws or governing documents. The Company is not, or with the giving of notice or lapse of time or both would not be, in default in the performance or observance of any obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which the Company is a party or by which the Company is bound or to which any of the properties or assets of the Company is subject, or in violation of any statutes, laws, ordinances or governmental rules or regulations or any orders or decrees to which it is subject.
(viii) The Company’s authorized capitalization is as set forth in the Prospectus; the outstanding shares of Common Stock have been duly authorized and validly issued and are fully paid and non-assessable and conform in all material respects to the description thereof in the Prospectus under the heading “Description of Capital Stock;” the Shares have been duly authorized by all requisite corporate action on the part of the Company for the issuance and sale of the Shares to the Sales Manager pursuant to this Agreement and, when the Shares are delivered and paid for pursuant to this Agreement on the Applicable Time, such Shares will have been validly issued and fully paid and non-assessable. The stockholders of the Company have no preemptive rights with respect to the Shares and none of the outstanding shares of capital stock of the Company have been issued in violation of any preemptive rights of any security holder.
(ix) Except as set forth in the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, (A) the Company and its subsidiaries have not incurred any liabilities or obligations, direct or contingent, or entered into any transactions, other than in the ordinary course of business, that are material to the Company and its subsidiaries taken as a whole, (B) there has not been any material change in the capital stock of the Company, or occurred any material adverse change, or, to the Company’s knowledge, or any development involving a prospective material adverse change, in the condition (condition, financial or otherwise), businessor in the earnings, net worth, property business or results of operations of the Company (excluding changes due to investment activities in the ordinary course of business), (C) there has been no dividend or distribution declared or paid in respect of the Company’s capital stock and (D) the Company and its subsidiaries have not incurred any short-term debt or long-term debt that is, in either case, material with respect to the Company and its subsidiaries taken as a whole (excluding debt resulting a "Material Adverse Effect"), from a draw down on that set forth in the Company’s credit facilities)Final Prospectus (exclusive of any amendments or supplements thereto) subsequent to the date of this Agreement.
(xd) There is no pending or, to the knowledge The Company and each "significant subsidiary" of the Company, threatened actionas such term is defined in Rule 1-02 of Regulation S-X promulgated under the 1933 Act (each, suit a "Significant Subsidiary"), have been duly incorporated or proceedingorganized, legal are validly existing as corporations or governmentallimited liability companies, as the case may be, in good standing under the laws of the jurisdictions of their incorporation or organization, have the corporate or limited liability company power and authority to own their respective properties and to conduct their respective businesses as currently conducted and are duly qualified to transact business and are in good standing in each jurisdiction in which the conduct of their respective businesses or their ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effect.
(e) The Company's authorized equity capitalization is as set forth in the Final Prospectus; the capital stock of the Company conforms in all material respects to the description thereof contained in the Final Prospectus; the outstanding shares of capital stock have been duly and validly authorized and issued and are fully paid and nonassessable; the outstanding shares of capital stock or other interests of the Significant Subsidiaries held by the Company, directly or indirectly through other subsidiaries, have been duly and validly authorized and issued and, if applicable, are fully paid and non-assessable, and are owned of record by the Company or a subsidiary free and clear of any of its subsidiaries is a partysecurity interest, before claim, lien or by any court or governmental agency or body, that is required to be described in the Prospectus and is not so describedencumbrance.
(xi) There are no contracts, agreements or understandings of the Company or any of its subsidiaries that are required to be filed as exhibits to the Registration Statement by the Securities Act or by the Securities Act Rules and Regulations that have not been so filed or incorporated by reference therein as permitted by the Securities Act Rules and Regulations.
(xiif) This Agreement has been duly authorized, executed and delivered by the Company.
(xiiig) The executionIndenture has been duly authorized by the Company and, when executed and delivered by the Company and the Trustee, will constitute a valid and binding obligation of the Company, enforceable in accordance with its terms, except to the extent that enforcement thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity), and will conform in all material respects to the description thereof in the Final Prospectus.
(h) The Securities have been duly authorized by the Company and, when executed and delivered by the Company and authenticated, issued and delivered in the manner provided for in the Indenture, will constitute valid and binding obligations of the Company, enforceable in accordance with their terms, except to the extent that enforcement thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity), and will conform in all material respects to the description thereof in the Final Prospectus. The Securities will be in the form contemplated by the Indenture and each registered holder thereof will be entitled to the benefits of the Indenture.
(i) Upon issuance and delivery of the Securities in accordance with this Agreement and performance the Indenture, the Securities will be convertible at the option of this Agreementthe holder thereof into shares of Common Stock in accordance with the terms of the Securities and the Indenture. The shares of Common Stock issuable upon such conversion of the Securities have been duly authorized and reserved for issuance upon such conversion by all necessary corporate action and such shares, when issued upon such conversion in accordance with the terms of the Securities and the Indenture, will be validly issued, fully paid and non-assessable. The shares of Common Stock issuable at the Company's option upon purchase of the Securities at the option of the holder thereof will have been, prior to the issuance thereof, duly authorized by all necessary corporate action, and such shares, if and when issued in accordance with the terms of the Securities and the Indenture, will be validly issued, fully paid and non-assessable. No holder of Common Stock will be subject to personal liability by reason of being such a holder, and the issuance of such shares upon such conversion or purchases will not be subject to the preemptive or other similar rights of any security holder of the Company.
(j) None of the Company and the subsidiaries is or, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Final Prospectus, will be an "investment company" as defined in the Investment Company Act of 1940, as amended.
(k) No consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein or in the other Operative Documents, except such as have been obtained under the 1933 Act, the 1939 Act or otherwise and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated herein and in the Final Prospectus.
(l) None of the issuance and sale of the Securities pursuant hereto, the issuance and sale of the Shares and shares of Common Stock issuable upon the consummation conversion of the transactions contemplated herein Securities, the execution and delivery by the Prospectus (including Company of, and performance by the issuance and sale Company of its obligations under, the Shares Operative Documents and the use of proceeds in accordance with the proceeds from the sale of the Shares as described in the Prospectus under the caption “"Use of Proceeds”) and compliance by " section in the Company with its obligations hereunder do not and Final Prospectus, will notconflict with, whether with or without the giving of notice or passage of time or both, conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under (i) the charter or Repayment Event by-laws (as defined belowor other similar documents) under, or result in the creation or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any subsidiary, (ii) the terms of its subsidiaries pursuant toany indenture, any agreementcontract, indenturelease, mortgage, lease deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which the Company or any subsidiary is a party or is bound or to which their property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or any subsidiary of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or any subsidiary or any of their properties, except in the cases of clauses (ii) and (iii) above for any such conflict, breach, violation or default that would not reasonably be expected to have a Material Adverse Effect.
(m) Except for United States Trust Company, as trustee for the GM Hourly Employees Pension Plan, no holders of securities of the Company have rights to the registration of such securities under the Registration Statement.
(n) The Company has not paid or agreed to pay to any person any compensation for soliciting another to purchase any Securities (except as contemplated by this Agreement).
(o) There are no legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or by to which it any of the properties of the Company or any of its properties subsidiaries is subject that are required to be described in the Registration Statement or assets may the Final Prospectus and are not so described (or a description of which is not incorporated therein by reference); and there is no contract or other document that is required to be bound described in the Registration Statement or the Final Prospectus or to be filed or incorporated by reference as an exhibit to the Registration Statement that is not described, filed or incorporated as required.
(p) Except as set forth in the Final Prospectus (exclusive of any supplement thereto), neither the Company nor will such action result any subsidiary is in violation or default of (i) any violation of the Company’s or any provision of its subsidiaries’ charter, charter or bylaws (or other organizational documentssimilar document), (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 it is a party or bound or to which its property is subject, or (iii) any orderstatute, law, statute, rule, regulation, judgment, order, writ order or decree of any court or governmental agency or court, regulatory body, domestic administrative agency, governmental body, arbitrator or foreign, other authority having jurisdiction over the Company or such subsidiary or any of its properties, as applicable, except in the cases of clauses (ii) and (iii) above for any such violation or default that would not result in a Material Adverse Effect.
(q) KPMG LLP, who have certified certain financial statements of the Company and its consolidated subsidiaries and delivered their report with respect to the audited consolidated financial statements incorporated by reference in the Final Prospectus, are independent public accountants with respect to the Company within the meaning of the 1933 Act and the 1933 Act Regulations.
(r) The Company and its subsidiaries own or possess, or can acquire on reasonable terms, adequate patents, patent rights, licenses, inventions, copyrights, know-how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures), trademarks, service marks, trade names or other intellectual property (collectively, "Intellectual Property") necessary to carry on the business now operated by them, and neither the Company nor any of its subsidiaries has received any notice or is otherwise aware of any infringement of or conflict with asserted rights of others with respect to any Intellectual Property or of any facts or circumstances which would render any Intellectual Property invalid or inadequate to protect the interest of the Company or any of its subsidiaries therein, and which infringement or any of their respective assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives conflict (if the holder subject of any noteunfavorable decision, debenture ruling or other evidence of indebtedness (finding) or any person acting on such holder’s behalf) invalidity or inadequacy, singly or in the right to require the repurchaseaggregate, redemption or repayment of all or would result in a portion of such indebtedness by the Company or any of its subsidiariesMaterial Adverse Effect.
Appears in 1 contract
Sources: Underwriting Agreement (Electronic Data Systems Corp /De/)
Representations and Warranties by the Company. The Company represents and warrants to the Sales Manager Underwriter as of the date hereof and as of each Representation Date (as defined hereinthe Closing Time referred to in Section 2(b) on which a certificate is required to be delivered pursuant to Section 7(n) of this Agreement and as of the time of each sale of any Shares or any securities pursuant to this Agreement (the “Applicable Time”)hereof, and agrees with the Sales ManagerUnderwriter, as follows:
(i) The Company meets the requirements for use of Form N-2 under the Securities Act and the Securities Act Rules and Regulations. At the time respective times the Registration Statement, any Rule 462(b) Registration Statement and any post- effective amendments thereto became effective, and at the Closing Time, the Registration Statement, the 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 1933 Act and the Securities 1933 Act Rules Regulations and Regulations the 1939 Act and the rules and regulations of the Commission under the 1939 Act (the "1939 Act Regulations"), and did not include and will not (taking into account any applicable prospectus supplement) 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; . Neither the Prospectus compliednor any amendments or supplements thereto, as of its date, in all material respects, with at the requirements of time the Securities Act Prospectus or any such amendment or supplement was issued and at the Securities Act Rules and Regulations as of the Applicable Time, did not contain any Closing Time included or will 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 Prospectus, as of the date of the Prospectus Supplement, will comply in all material respects with the requirements of the Securities Act and the Securities Act Rules and Regulations, and the Prospectus, as of the date of the Prospectus Supplement and the Applicable Time, did not and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the . The representations and warranties in this subsection shall not apply to statements in or omissions from the Registration Statement or Prospectus or any amendments or supplements thereto made in reliance upon and in conformity with information relating to contained in the Sales Manager last paragraph of the cover page of the Prospectus Supplement, the first paragraph on the inside cover page of the Prospectus Supplement and the third paragraph under the heading "Underwriting" in the Prospectus Supplement and furnished to the Company in writing by the Sales Manager Underwriter expressly for use in the Registration Statement or Prospectus. The Prospectus filed as part of the Registration Statement as originally filed or as part of any amendment thereto, it being understood and agreed that or filed pursuant to Rule 424 under the only such information furnished 1933 Act, complied when so filed in all material respects with the 1933 Act Regulations and, if applicable, the Prospectus delivered to the Underwriter for use in connection with this offering was identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGA▇, ▇▇cept to the extent permitted by Regulation S-T promulgated by the Sales Manager consists of the following information in the Prospectus Supplement furnished on behalf the Sales Manager: the last paragraph under the caption “Plan of DistributionCommission ("Regulation S-T").” The Shares have been duly registered under the Securities Act pursuant to the Registration Statement.
(ii) Each of the Registration Statement, Statement and any Rule 462(b) Registration Statement and any post-effective amendments thereto has become effective, effective under the 1933 Act and no order suspending the effectiveness of the Registration Statement has been issued by the Commission.
(ii) The Registration Statement has become effective; the Commission has not issued, and is not, to the knowledge of the Company, threatening to issue, any stop order under the Securities Act or other order suspending the effectiveness of the Registration Statement or any post-effective amendment theretoRule 462(b) Registration Statement or, in each case, any part thereof has been issued and no proceedings proceeding for such that purpose have has been instituted or are is pending or, to the best knowledge of the Company are Company, is contemplated or threatened by the CommissionCommission or the state securities authority of any jurisdiction and any request on the part of the Commission for additional information has been complied with. No order preventing or suspending the use of the Prospectus has been issued and no proceeding for that purpose has been instituted or is pending before or, to the knowledge of the Company, is contemplated by, the Commission or the state securities authority of any jurisdiction.
(iii) The Company has elected to be regulated documents incorporated by reference in the Commission as a business development company under Prospectus, when they became effective or were filed with the Investment Company Act of 1940Commission, as amended (the “Investment Company Act”)case may be, and has not withdrawn that election, and the Commission has not ordered that such election be withdrawn nor conformed in all material respects to the best requirements of the Company’s knowledge have proceedings to effectuate such withdrawal been initiated or threatened by the Commission.
(iv) To the Company’s knowledge, PricewaterhouseCoopers LLPSecurities Act, the accounting firm that audited Exchange Act or the financial statements of the Company set forth in the Registration Statement and Prospectus1939 Act, were and are independent registered accounting firms as required by the Securities Act and the Securities Act Rules and Regulations applicable, and the rules and regulations of the Public Company Accounting Oversight Board.
(v) The financial statementsCommission thereunder, together and none of such documents contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and any further documents so filed and incorporated by reference in the Prospectus, when such documents become effective or are filed with the related schedules and notes theretoCommission, of as the Company set forth in the Registration Statement and the Prospectus fairly present case may be, will conform in all material respects to the results of operations and financial condition requirements of the Company Securities Act, the Exchange Act or the 1939 Act, as applicable, and its subsidiaries as the rules and regulations of the dates indicated Commission thereunder 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 results of their operations for the respective periods specified, and are prepared in conformity with U.S. generally accepted accounting principles and the selected financial information and data included in the Registration Statement and the Prospectus have been prepared on a basis consistent with that of the books and records of the Companystatements therein not misleading.
(viiv) The Company (A) has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland, has full corporate power and authority to conduct its business as described in the Prospectus; (B) has full power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby; and (C) is duly licensed or qualified to do business and is in good standing as a foreign corporation and in good standing in each jurisdiction where in which its ownership or lease of property or the Company is required to be qualified or licensed or in good standing, conduct of its business requires such qualification (except where the failure to be so qualified or licensed or to be in good standing qualify would not result in have a material adverse effect upon on the consolidated financial conditionposition, stockholders' equity, results of operations, business affairs or operations business prospects of the Company Company), and has all power and authority necessary to own or hold its subsidiaries, taken as a whole (“Material Adverse Effect”).
(vii) The Company is not, or with properties and to conduct the giving of notice or lapse of time or both would not be, business in default or violation with respect to its charter or bylaws or governing documents. The Company is not, or with the giving of notice or lapse of time or both would not be, in default in the performance or observance of any obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which the Company is a party or by which the Company is bound or to which any of the properties or assets of the Company is subject, or in violation of any statutes, laws, ordinances or governmental rules or regulations or any orders or decrees to which it is subject.
(viii) The Company’s authorized capitalization is as set forth in the Prospectusengaged; the outstanding shares of Common Stock have been duly authorized and validly issued and are fully paid and non-assessable and conform in all material respects to the description thereof in the Prospectus under the heading “Description of Capital Stock;” the Shares have been duly authorized by all requisite corporate action on the part of the Company for the issuance and sale has no interest in any entity or person other than (i) its ownership of the Shares to the Sales Manager pursuant to this Agreement and, when the Shares are delivered and paid for pursuant to this Agreement on the Applicable Time, such Shares will have been validly issued and fully paid and non-assessable. The stockholders of the Company have no preemptive rights with respect to the Shares and none all of the outstanding shares of capital stock of the Company have been issued in violation of any preemptive rights of any security holder.
Price/Texas, Inc., a Texas corporation (ix) Except as set forth in the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, (A) the Company and its subsidiaries have not incurred any liabilities or obligations, direct or contingent, or entered into any transactions, other than in the ordinary course of business, that are material to the Company and its subsidiaries taken as a whole, (B) there has not been any material change in the capital stock of the Company, or any material adverse change, or, to the Company’s knowledge, any development involving a prospective material adverse change, in the condition (financial or otherwise), business, net worth, property or results of operations of the Company (excluding changes due to investment activities in the ordinary course of business"Price Texas"), (Cii) there has been no dividend or distribution declared or paid in respect its ownership of all of the Company’s capital stock and (D) the Company and its subsidiaries have not incurred any short-term debt or long-term debt that islimited partnership interests in Price/Baybrook, in either caseLtd., material with respect to the Company and its subsidiaries taken as a whole (excluding debt resulting from a draw down on the Company’s credit facilities).
(x) There is no pending orTexas limited partnership, to the knowledge Price/Baybrook, Ltd.'s ownership of 50% of the membership interests in Price/Fry Limited Liability Company, threatened actiona Texas limited liability company, suit or proceeding, legal or governmental, to which and the Company or any ownership by Price Texas of its subsidiaries is a party, before or by any court or governmental agency or body, that is required to be described in the Prospectus and is not so described.
(xi) There are no contracts, agreements or understandings all of the Company or any general partnership interests of Price/Baybrook, Ltd., (iii) its subsidiaries that are required to be filed as exhibits to the Registration Statement by the Securities Act or by the Securities Act Rules and Regulations that have not been so filed or incorporated by reference therein as permitted by the Securities Act Rules and Regulations.
(xii) This Agreement has been duly authorized, executed and delivered by the 90% membership interest in Smithtown Venture Limited Liability Company.
(xiii) The execution, delivery and performance of this Agreement, the issuance and sale of the Shares and the consummation of the transactions contemplated herein and the Prospectus (including the issuance and sale of the Shares and the use of the proceeds from the sale of the Shares as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or result in a breach or violation of any of the terms and provisions of, constitute a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any of its subsidiaries pursuant to, any agreement, indenture, mortgage, lease or other instrument to which the Company or any of its subsidiaries is a party or by which it or any of its properties or assets may be bound nor will such action result in any violation of the Company’s or any of its subsidiaries’ charter, bylaws or other organizational documents, or any order, law, statute, rule, regulation, judgment, order, writ or decree of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Company or any of its subsidiaries or any of their respective assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any noteNew York limited liability company, debenture or other evidence of indebtedness (or any person acting on such holder’s behalfiv) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its subsidiaries.50% partnership interest in
Appears in 1 contract
Sources: Purchase Agreement (Price Reit Inc)
Representations and Warranties by the Company. The Company hereby represents and warrants to the Sales Manager Underwriters, the Forward Sellers and the Forward Counterparties as of the date hereof, as of the Forward Sale Time (as defined below), as of the Closing Date referred to in Section 3(c) hereof and as of each Representation Option Closing Date (as defined hereinif any) on which a certificate is required referred to be delivered pursuant to in Section 7(n3(b) of this Agreement and as of the time of each sale of any Shares or any securities pursuant to this Agreement (the “Applicable Time”)hereof, and agrees with the Sales ManagerUnderwriters, the Forward Sellers and the Forward Counterparties, as follows:
(i1) The Company meets the requirements for use of Form N-2 S-3 under the Securities Act. The Registration Statement and any post-effective amendments thereto have become effective under the Securities Act. 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 Rules have been instituted or are pending or, to the knowledge of the Company, are contemplated by the Commission, and Regulations. any request on the part of the Commission for additional information has been complied with.
(2) At the time respective times the Registration Statement and any post-effective amendments thereto became or become effective, at each deemed effective date of the Registration Statement with respect to the Underwriters pursuant to Rule 430B(f)(2) of the Securities Act and at the Closing Date (and, if any Option Securities are purchased, at the applicable Option Closing Date), the Registration Statement complied and will comply in all material respects with the requirements of the Securities Act and the Securities Act Rules and Regulations and did not include any 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; .
(3) The Prospectus and any amendments or supplements thereto, at the time the Prospectus compliedor any such amendment or supplement was issued and at the Closing Date (and, as of its dateif any Option Securities are purchased, at the applicable Option Closing Date), complied and will comply in all material respects, respects with the requirements of the Securities Act and the Securities Act Rules and Regulations as of the Applicable Time, did not contain any and will not 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 Prospectus, .
(4) Each preliminary prospectus (including any prospectus or prospectuses filed as part of the date of Registration Statement at the Prospectus Supplementtime it originally became effective or any amendment thereto), will comply 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 Securities Act was identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, 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 Securities Act Rules and Regulationsinformation included on Schedule III hereto all considered together (collectively, and the Prospectus“ Disclosure Package”), nor (y) any individual Issuer Limited Use Free Writing Prospectus (as of defined below), when considered together with the date of the Prospectus Supplement and the Applicable TimeDisclosure Package, did not and will not contain included any untrue statement of a material fact or omit omitted 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; provided, however, that the representations and warranties . As used in this subsection shall not apply to statements and elsewhere in or omissions from the Registration Statement or Prospectus or any amendments or supplements thereto made in reliance upon and in conformity with information relating to the Sales Manager furnished to the Company in writing by the Sales Manager expressly for use in the Registration Statement or Prospectus, it being understood and agreed that the only such information furnished by the Sales Manager consists of the following information in the Prospectus Supplement furnished on behalf the Sales Manager: the last paragraph under the caption “Plan of Distribution.” The Shares have been duly registered under the Securities Act pursuant to the Registration Statement. Each of the Registration Statement, any Rule 462(b) Registration Statement and any post-effective amendments thereto has become effective, and no order suspending the effectiveness of the Registration Statement has been issued by the Commission.
(ii) The Registration Statement has become effective; the Commission has not issued, and is not, to the knowledge of the Company, threatening to issue, any stop order under the Securities Act or other order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto, and no proceedings for such purpose have been instituted or are pending or, to the best knowledge of the Company are contemplated or threatened by the Commission.
(iii) The Company has elected to be regulated by the Commission as a business development company under the Investment Company Act of 1940, as amended (the “Investment Company Act”), and has not withdrawn that election, and the Commission has not ordered that such election be withdrawn nor to the best of the Company’s knowledge have proceedings to effectuate such withdrawal been initiated or threatened by the Commission.
(iv) To the Company’s knowledge, PricewaterhouseCoopers LLP, the accounting firm that audited the financial statements of the Company set forth in the Registration Statement and Prospectus, were and are independent registered accounting firms as required by the Securities Act and the Securities Act Rules and Regulations and the rules and regulations of the Public Company Accounting Oversight Board.
(v) The financial statements, together with the related schedules and notes thereto, of the Company set forth in the Registration Statement and the Prospectus fairly present in all material respects the results of operations and financial condition of the Company and its subsidiaries as of the dates indicated and the results of their operations for the respective periods specified, and are prepared in conformity with U.S. generally accepted accounting principles and the selected financial information and data included in the Registration Statement and the Prospectus have been prepared on a basis consistent with that of the books and records of the Company.
(vi) The Company (A) has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland, has full corporate power and authority to conduct its business as described in the Prospectus; (B) has full power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby; and (C) is duly licensed or qualified to do business as a foreign corporation and in good standing in each jurisdiction where the Company is required to be qualified or licensed or in good standing, except where the failure to be so qualified or licensed or to be in good standing would not result in a material adverse effect upon the financial condition, business or operations of the Company and its subsidiaries, taken as a whole (“Material Adverse Effect”).
(vii) The Company is not, or with the giving of notice or lapse of time or both would not be, in default or violation with respect to its charter or bylaws or governing documents. The Company is not, or with the giving of notice or lapse of time or both would not be, in default in the performance or observance of any obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which the Company is a party or by which the Company is bound or to which any of the properties or assets of the Company is subject, or in violation of any statutes, laws, ordinances or governmental rules or regulations or any orders or decrees to which it is subject.
(viii) The Company’s authorized capitalization is as set forth in the Prospectus; the outstanding shares of Common Stock have been duly authorized and validly issued and are fully paid and non-assessable and conform in all material respects to the description thereof in the Prospectus under the heading “Description of Capital Stock;” the Shares have been duly authorized by all requisite corporate action on the part of the Company for the issuance and sale of the Shares to the Sales Manager pursuant to this Agreement and, when the Shares are delivered and paid for pursuant to this Agreement on the Applicable Time, such Shares will have been validly issued and fully paid and non-assessable. The stockholders of the Company have no preemptive rights with respect to the Shares and none of the outstanding shares of capital stock of the Company have been issued in violation of any preemptive rights of any security holder.
(ix) Except as set forth in the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, (A) the Company and its subsidiaries have not incurred any liabilities or obligations, direct or contingent, or entered into any transactions, other than in the ordinary course of business, that are material to the Company and its subsidiaries taken as a whole, (B) there has not been any material change in the capital stock of the Company, or any material adverse change, or, to the Company’s knowledge, any development involving a prospective material adverse change, in the condition (financial or otherwise), business, net worth, property or results of operations of the Company (excluding changes due to investment activities in the ordinary course of business), (C) there has been no dividend or distribution declared or paid in respect of the Company’s capital stock and (D) the Company and its subsidiaries have not incurred any short-term debt or long-term debt that is, in either case, material with respect to the Company and its subsidiaries taken as a whole (excluding debt resulting from a draw down on the Company’s credit facilities).
(x) There is no pending or, to the knowledge of the Company, threatened action, suit or proceeding, legal or governmental, to which the Company or any of its subsidiaries is a party, before or by any court or governmental agency or body, that is required to be described in the Prospectus and is not so described.
(xi) There are no contracts, agreements or understandings of the Company or any of its subsidiaries that are required to be filed as exhibits to the Registration Statement by the Securities Act or by the Securities Act Rules and Regulations that have not been so filed or incorporated by reference therein as permitted by the Securities Act Rules and Regulations.
(xii) This Agreement has been duly authorized, executed and delivered by the Company.
(xiii) The execution, delivery and performance of this Agreement, the issuance and sale of the Shares and the consummation of the transactions contemplated herein and the Prospectus (including the issuance and sale of the Shares and the use of the proceeds from the sale of the Shares as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or result in a breach or violation of any of the terms and provisions of, constitute a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any of its subsidiaries pursuant to, any agreement, indenture, mortgage, lease or other instrument to which the Company or any of its subsidiaries is a party or by which it or any of its properties or assets may be bound nor will such action result in any violation of the Company’s or any of its subsidiaries’ charter, bylaws or other organizational documents, or any order, law, statute, rule, regulation, judgment, order, writ or decree of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Company or any of its subsidiaries or any of their respective assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its subsidiaries.:
Appears in 1 contract
Representations and Warranties by the Company. The Company represents and warrants to the Sales Manager as of the date hereof and as of each Representation Date (as defined herein) on which a certificate is required to be delivered pursuant to Section 7(n) of this Agreement and as of the time of each sale of any Shares Placement Securities or any securities pursuant to this Agreement (the “Applicable Time”), and agrees with the Sales Manager, as follows:
(i) The Company meets the requirements for use of Form N-2 under the Securities Act and the Securities Act Rules and Regulations. At the time the Registration Statement became effective, the Registration Statement complied in all material respects with the requirements of the Securities Act and Act, the Securities Act Rules and Regulations and the Trust Indenture Act and did not include 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 Prospectus complied, as of its date, in all material respects, with the requirements of the Securities Act and Act, the Securities Act Rules and Regulations and the Trust Indenture Act as of the Applicable Time, did not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; the Prospectus, as of the date of the Prospectus Supplement, will comply in all material respects with the requirements of the Securities Act and Act, the Securities Act Rules and RegulationsRegulations and the Trust Indenture Act, and the Prospectus, as of the date of the Prospectus Supplement and the Applicable Time, did not and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the representations and warranties in this subsection shall not apply to (i) that part of the Registration Statement which shall constitute the Statement of Eligibility Under the Trust Indenture Act on Form T-1 of the Trustee, or (ii) statements in or omissions from the Registration Statement or Prospectus or any amendments or supplements thereto made in reliance upon and in conformity with information relating to the Sales Manager furnished to the Company in writing by the Sales Manager expressly for use in the Registration Statement or Prospectus, it being understood and agreed that the only such information furnished by the Sales Manager consists of the following information in the Prospectus Supplement furnished on behalf the Sales Manager: [the last paragraph under the caption “Plan of Distribution.” ”] The Shares Placement Securities have been duly registered under the Securities Act pursuant to the Registration Statement. .
(ii) Each of the Registration Statement, any Rule 462(b) Registration Statement and any post-effective amendments thereto has become effective, and no order suspending the effectiveness of the Registration Statement has been issued by the Commission.
(ii) The Registration Statement has become effective; the Commission has not issued, and is not, to the knowledge of the Company, threatening to issue, any stop order under the Securities Act or other order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto, and no proceedings for such purpose have been instituted or are pending or, to the best knowledge of the Company are contemplated or threatened by the Commission.
(iii) (A) The Company has duly elected to be regulated by the Commission as a business development company (“BDC”) under the Investment Company Act of 1940, as amended 1940 (the “Investment Company Act”), ) and has not withdrawn that election, and the Commission no order of suspension or revocation has not ordered that such election be withdrawn nor been issued or proceedings therefor initiated or, to the best knowledge of the Company, threatened by the Commission. Subject to the filing of the Registration Statement and the Prospectus, all required action has been taken by the Company under the Securities Act and the Investment Company Act to make the public offering and consummate the sale of the Placement Securities as provided in this Agreement; (B) the provisions of the Company’s knowledge have proceedings charter and bylaws and the investment objective, policies and restrictions described in the Registration Statement and the Prospectus, assuming they are implemented as described, comply in all material respects with the requirements of the Investment Company Act; and (C) the operations of the Company are in compliance in all material respects with the provisions of the Investment Company Act applicable to effectuate such withdrawal been initiated or threatened by the CommissionBDCs.
(iv) To the Company’s knowledge, PricewaterhouseCoopers RSM US LLP, the accounting firm that which audited the certain financial statements of the Company set forth and whose report appears in the Registration Statement and Prospectus, were and are is an independent registered public accounting firms firm as required by the Securities Act and Act, the Securities Act Investment Company Act, the Rules and Regulations and the rules and regulations of the Public Company Accounting Oversight BoardBoard (the “PCAOB”).
(v) The financial statements, together with statements (including the related schedules notes and notes thereto, of the Company set forth supporting schedules) included in the Registration Statement and the Prospectus fairly present comply as to form in all material respects with the requirements of Regulation S-X under the Securities Act and present fairly the financial condition, results of operations and financial condition cash flows of the Company and its subsidiaries as of at the dates and for the periods indicated and the results of their operations for the respective periods specified, and are have been prepared in conformity with U.S. accounting principles generally accepted accounting principles and in the United States applied on a consistent basis throughout the periods involved (“GAAP”). The selected financial information and data included in the Registration Statement Statement, the General Disclosure Package and the Prospectus have been prepared on a basis consistent with that of the books and records of the Company, I-45 (as defined below) and MRI (as defined below), as applicable.
(vi) The Company (A) has been duly incorporated and organized, is validly existing and is in good standing as a corporation in good standing under the laws of the State of Maryland, has full corporate power Texas and authority to conduct its business as described in the Prospectus; (B) has full power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby; and (C) is duly licensed or qualified to do business and in good standing as a foreign corporation and in good standing in each jurisdiction where in which its ownership or lease of property or the Company is required to be qualified or licensed or in good standingconduct of its businesses requires such qualification, except where the failure to be so qualified or licensed or to be in good standing would not result not, in the aggregate, reasonably be expected to have a material adverse effect upon the financial condition, business or operations of the Company and its subsidiaries, taken as a whole (“Material Adverse Effect”).
(vii) The Company is not, or with the giving of notice or lapse of time or both would not be, in default or violation with respect to its charter or bylaws or governing documents. The Company is not, or with the giving of notice or lapse of time or both would not be, in default in the performance or observance of any obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which the Company is a party or by which the Company is bound or to which any of the properties or assets of the Company is subject, or in violation of any statutes, laws, ordinances or governmental rules or regulations or any orders or decrees to which it is subject.
(viii) The Company’s authorized capitalization is as set forth in the Prospectus; the outstanding shares of Common Stock have been duly authorized and validly issued and are fully paid and non-assessable and conform in all material respects to the description thereof in the Prospectus under the heading “Description of Capital Stock;” the Shares have been duly authorized by all requisite corporate action on the part of the Company for the issuance and sale of the Shares to the Sales Manager pursuant to this Agreement and, when the Shares are delivered and paid for pursuant to this Agreement on the Applicable Time, such Shares will have been validly issued and fully paid and non-assessable. The stockholders of the Company have no preemptive rights with respect to the Shares and none of the outstanding shares of capital stock of the Company have been issued in violation of any preemptive rights of any security holder.
(ix) Except as set forth in the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, (A) the Company and its subsidiaries have not incurred any liabilities or obligations, direct or contingent, or entered into any transactions, other than in the ordinary course of business, that are material to the Company and its subsidiaries taken as a whole, (B) there has not been any material change in the capital stock of the Company, or any material adverse change, or, to the Company’s knowledge, any development involving a prospective material adverse change, in the condition (financial or otherwise), business, net worth, property or results of operations operations, stockholders’ equity, prospects, properties, management or business of the Company (excluding changes due to investment activities in the ordinary course of businessa “Material Adverse Effect”), (C) there has been no dividend or distribution declared or paid in respect of the Company’s capital stock and (D) ; the Company has all corporate power and authority necessary to own or hold its subsidiaries have not incurred any short-term debt or long-term debt that is, properties and to conduct the businesses in either case, material with respect to the Company and its subsidiaries taken as a whole (excluding debt resulting from a draw down on the Company’s credit facilities)which it is engaged.
(xvii) There is no pending orThe Company’s only consolidated subsidiaries (each, a “Subsidiary” and collectively, the “Subsidiaries”) are listed on Exhibit E hereto. Each of the Subsidiaries and, to the knowledge of the Company, threatened actionI-45 SLF LLC (“I-45”), suit or proceedingand Media Recovery, legal or governmentalInc. (“MRI” and together with I-45, to which the Company or any of its subsidiaries is a party“Controlled Portfolio Companies”), before or by any court or governmental agency or body, that is required to be described in the Prospectus and is not so described.
(xi) There are no contracts, agreements or understandings of the Company or any of its subsidiaries that are required to be filed as exhibits to the Registration Statement by the Securities Act or by the Securities Act Rules and Regulations that have not been so filed or incorporated by reference therein as permitted by the Securities Act Rules and Regulations.
(xii) This Agreement has been duly authorizedorganized, executed and delivered by is validly existing in good standing under the Company.
(xiii) The execution, delivery and performance of this Agreement, the issuance and sale laws of the Shares jurisdiction of its incorporation or organization and is duly qualified to do business and in good standing as a foreign corporation in each jurisdiction in which its ownership or lease of property or the consummation conduct of its businesses requires such qualification, except where the transactions contemplated herein and the Prospectus (including the issuance and sale of the Shares and the use of the proceeds from the sale of the Shares as described failure to be so qualified or in good standing would not, in the Prospectus under aggregate, reasonably be expected to have a Material Adverse Effect; the caption “Use of Proceeds”) Subsidiaries have the power and compliance by authority, corporate or otherwise, necessary to own or hold their properties and to conduct the Company with its obligations hereunder do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or result businesses in a breach or violation of any of the terms and provisions of, constitute a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any of its subsidiaries pursuant to, any agreement, indenture, mortgage, lease or other instrument to which the Company or any of its subsidiaries is a party or by which it or any of its properties or assets may be bound nor will such action result in any violation of the Company’s or any of its subsidiaries’ charter, bylaws or other organizational documents, or any order, law, statute, rule, regulation, judgment, order, writ or decree of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Company or any of its subsidiaries or any of their respective assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its subsidiariesthey are engaged.
Appears in 1 contract
Sources: Debt Distribution Agreement (Capital Southwest Corp)
Representations and Warranties by the Company. The Company represents and warrants to the Sales Manager each Underwriter as of the date hereof hereof, as of the Closing Time referred to in Section 2(c) hereof, and as of each Representation Date of Delivery (as defined hereinif any) on which a certificate is required referred to be delivered pursuant to in Section 7(n2(b) of this Agreement and as of the time of each sale of any Shares or any securities pursuant to this Agreement (the “Applicable Time”)hereof, and agrees with the Sales Managereach Underwriter, as follows:
(i) The Company meets the requirements for use of Form N-2 S-3 under the Securities 1933 Act. Each of the Registration Statement and any Rule 462(b) Registration Statement has become effective under the 1933 Act and no stop order suspending the Securities effectiveness of the Registration Statement or any Rule 462(b) Registration Statement has been issued under the 1933 Act Rules and Regulationsno 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. At the time respective times the Registration Statement, any Rule 462(b) Registration Statement and any post-effective amendments thereto became effectiveeffective and at the Closing Time (and, if any Option Securities are purchased, at the Date of Delivery), the Registration Statement, the 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 1933 Act and the Securities 1933 Act Rules and Regulations and did not include any 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; . Neither the Prospectus compliednor any amendments or supplements thereto, as at the time the Prospectus or any such amendment or supplement was issued and at the Closing Time (and, if any Option Securities are purchased, at the Date of its dateDelivery), in all material respects, with the requirements of the Securities Act and the Securities Act Rules and Regulations as of the Applicable Time, did not contain any 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; . If Rule 434 is used, the Prospectus, as of the date of the Prospectus Supplement, Company will comply in all material respects with the requirements of the Securities Act and the Securities Act Rules and Regulations, and the Prospectus, as of the date of the Prospectus Supplement and the Applicable Time, did not and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Rule 434. The representations and warranties in this subsection shall not apply to statements in or omissions from the Registration Statement or Prospectus or any amendments or supplements thereto made in reliance upon and in conformity with information relating to the Sales Manager furnished to the Company in writing by the Sales Manager any Underwriter through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use in the Registration Statement or Prospectus, it being understood and agreed that the only such information furnished by the Sales Manager consists of the following information in the Prospectus Supplement furnished on behalf the Sales Manager: the last paragraph under the caption “Plan of Distribution.” The Shares have been duly registered under the Securities Act pursuant to the Registration Statement. Each of preliminary prospectus and the Registration Statement, any Rule 462(b) Registration Statement and any post-effective amendments thereto has become effective, and no 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 under the 1933 Act, complied when so filed in all material respects with the 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 ▇▇▇▇▇, except to the extent permitted by the Commission.Regulation S-T.
(ii) The Registration Statement has become effective; the Commission has not issued, and is not, to the knowledge of the Company, threatening to issue, any stop order under the Securities Act documents incorporated or other order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto, and no proceedings for such purpose have been instituted or are pending or, to the best knowledge of the Company are contemplated or threatened by the Commission.
(iii) The Company has elected deemed to be regulated incorporated by the Commission as a business development company under the Investment Company Act of 1940, as amended (the “Investment Company Act”), and has not withdrawn that election, and the Commission has not ordered that such election be withdrawn nor to the best of the Company’s knowledge have proceedings to effectuate such withdrawal been initiated or threatened by the Commission.
(iv) To the Company’s knowledge, PricewaterhouseCoopers LLP, the accounting firm that audited the financial statements of the Company set forth reference in the Registration Statement and the Prospectus, at the time they were or hereafter are filed with the Commission, complied and are independent registered accounting firms as required by will comply in all material respects with the Securities requirements of the 1934 Act and the Securities Act Rules and Regulations and the rules and regulations of the Public Company Accounting Oversight BoardCommission thereunder (the "1934 Act Regulations"), and, when read together with the other information in the Prospectus, at the time the Registration Statement became effective, at the time the Prospectus was issued and at the Closing Time (and, if any Option Securities are purchased, at the Date of Delivery), 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.
(viii) The historical consolidated financial statementsstatements included in and incorporated by reference in the Registration Statement and the Prospectus, together with the related schedules and notes theretonotes, of the Company set forth in the Registration Statement and the Prospectus present fairly present in all material respects the results of operations and financial condition position of the Company and its consolidated subsidiaries as of at the dates indicated and the results statement of their operations operations, stockholders' equity and cash flows of the Company and its consolidated subsidiaries for the respective periods specified, ; said financial statements comply as to form with the applicable accounting requirements of the 1933 Act and are the 1933 Act regulations thereunder and have been prepared in conformity with U.S. generally accepted accounting principles and ("GAAP") applied on a consistent basis throughout the selected financial information and data periods involved (except as otherwise noted therein). The supporting schedules, if any, included in or incorporated by reference in the Registration Statement present fairly in accordance with GAAP the information required to be stated therein. The selected financial data and the summary financial information included in the Prospectus present fairly the information shown therein and have been prepared compiled on a basis consistent with that of the books and records of audited financial statements incorporated by reference in the CompanyRegistration Statement.
(viiv) The Each of the Company (A) and its subsidiaries has been duly incorporated or organized and is validly existing as a corporation in good standing under the laws of the State of Maryland, has full corporate jurisdiction in which it is chartered or organized with all requisite power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Prospectus; (B) has full power , and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby; and (C) is duly licensed or qualified to do business as a foreign corporation or organization and is in good standing under the laws of each jurisdiction which requires such qualification, except in each jurisdiction where the Company is required to be qualified or licensed case as would not, singly or in good standingthe aggregate, except where the failure to be so qualified or licensed or to be in good standing would not result in have a material adverse effect upon on the condition (financial conditionor otherwise), prospects, earnings, business or operations properties of the Company and its subsidiaries, taken as a whole whole, whether or not arising from transactions in the ordinary course of business (“a "Material Adverse Effect”").
(viiv) The Company is not, or with the giving of notice or lapse of time or both would not be, in default or violation with respect to its charter or bylaws or governing documents. The Company is not, or with the giving of notice or lapse of time or both would not be, in default in the performance or observance of any obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which the Company is a party or by which the Company is bound or to which any of the properties or assets of the Company is subject, or in violation of any statutes, laws, ordinances or governmental rules or regulations or any orders or decrees to which it is subject.
(viii) The Company’s authorized capitalization is as set forth in the Prospectus; the outstanding shares of Common Stock of the Company, including the Securities to be purchased by the Underwriters from the Selling Shareholders, have been duly and validly authorized and validly issued and are fully paid and non-assessable and conform in all material respects to the description thereof in the Prospectus under the heading “Description of Capital Stock;” the Shares have been duly authorized by all requisite corporate action on the part of the Company for the issuance and sale of the Shares to the Sales Manager pursuant to this Agreement and, when the Shares are delivered and paid for pursuant to this Agreement on the Applicable Time, such Shares will have been validly issued and fully paid and non-assessable. The stockholders of the Company have no preemptive rights with respect to the Shares and nonassessable; none of the outstanding shares of capital stock of the Company have been was issued in violation of any the preemptive or similar rights of any security holder.
(ix) Except securityholder of the Company; all the outstanding shares of capital stock of each of the Company's subsidiaries have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as may be otherwise set forth in the Prospectus, subsequent to the respective dates as all outstanding shares of which information is given in the Registration Statement and the Prospectus, (A) the Company and its subsidiaries have not incurred any liabilities or obligations, direct or contingent, or entered into any transactions, other than in the ordinary course of business, that are material to the Company and its subsidiaries taken as a whole, (B) there has not been any material change in the capital stock of the Company, or any material adverse change, or, to the Company’s knowledge, any development involving a prospective material adverse change, in the condition (financial or otherwise), business, net worth, property or results of operations of such subsidiaries are owned by the Company (excluding changes due either directly or through wholly owned subsidiaries, free and clear of any security interests, claims, liens or encumbrances, except as would not reasonably be expected to investment activities in the ordinary course of business), (C) there has been no dividend or distribution declared or paid in respect of the Company’s capital stock and (D) the Company and its subsidiaries have not incurred any short-term debt or long-term debt that is, in either case, material with respect to the Company and its subsidiaries taken as a whole (excluding debt resulting from a draw down on the Company’s credit facilities)Material Adverse Effect.
(x) There is no pending or, to the knowledge of the Company, threatened action, suit or proceeding, legal or governmental, to which the Company or any of its subsidiaries is a party, before or by any court or governmental agency or body, that is required to be described in the Prospectus and is not so described.
(xi) There are no contracts, agreements or understandings of the Company or any of its subsidiaries that are required to be filed as exhibits to the Registration Statement by the Securities Act or by the Securities Act Rules and Regulations that have not been so filed or incorporated by reference therein as permitted by the Securities Act Rules and Regulations.
(xiivi) This Agreement has been duly authorized, executed and delivered by the Company.
(xiiivii) The Company is not and, after giving effect to the offering and sale of the Securities as described in the Prospectus, will not be an "investment company" as defined in the Investment Company Act of 1940, as amended.
(viii) No consent, approval, authorization, order, registration or qualification with any court or governmental agency or body is required for the performance by the Company of its obligations hereunder, in connection with the offering or sale of the Securities by the Selling Shareholders or in connection with the consummation of the transactions contemplated by this Agreement, except such as have been already obtained or as may be required under the 1933 Act or the 1933 Act Regulations or state securities laws.
(ix) The execution, delivery and performance of this Agreement, Agreement and any other agreement or instrument entered into or issued or to be entered into or issued by the issuance and sale of Company in connection with the Shares transactions contemplated hereby or thereby or in the Prospectus and the consummation of the transactions contemplated herein and in the Prospectus (including the issuance and sale of the Shares and Securities by the use of the proceeds from the sale of the Shares as described in the Prospectus under the caption “Use of Proceeds”Selling Shareholders) and compliance by the Company with its obligations hereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or with, result in a breach or violation of any of the terms and provisions of, constitute a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any properties property or assets of the Company or any of its subsidiaries pursuant toto (i) the charter or by-laws of the Company or any of its subsidiaries; (ii) the terms of any indenture, any agreementcontract, indenturelease, mortgage, lease 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 by bound or to which it its or their property is subject; or (iii) any of its properties or assets may be bound nor will such action result in any violation of the Company’s or any of its subsidiaries’ charter, bylaws or other organizational documents, or any orderstatute, law, statute, rule, regulation, judgment, order, writ order or decree applicable to the Company or any of its subsidiaries of any court or governmental agency or court, regulatory body, domestic administrative agency, governmental body, arbitrator or foreign, other authority having jurisdiction over the Company or any of its subsidiaries or any of its or their respective assetsproperties, properties other than, in the case of clauses (ii) and (iii), any breach, violation, lien, charge or operations. As used hereinencumbrance that could not reasonably be expected to have a Material Adverse Effect.
(x) No action, a “Repayment Event” means suit or proceeding by or before any event court or condition which gives the holder of any notegovernmental agency, debenture authority or other evidence of indebtedness (body or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by arbitrator involving the Company or any of its subsidiariessubsidiaries or its or their property is pending or, to the best knowledge of the Company, threatened that (i) could reasonably be expected to have a material adverse effect on the performance of this Agreement or the consummation of any of the transactions contemplated hereby or (ii) could reasonably be expected to have a Material Adverse Effect, except, in the case of this clause (ii), as may be set forth in the Prospectus; and no labor disturbance by or dispute with the employees of the Company or any of its subsidiaries exists or is, to the best knowledge of the Company, threatened or is imminent that could reasonably be expected to have a Material Adverse Effect.
(xi) Each of the Company and each of its subsidiaries owns or leases all such properties as are necessary to the conduct of its operations as presently conducted; neither the Company nor any subsidiary is in non- compliance with any term or condition of, or has failed to obtain and maintain in effect, any license, certificate, permit or other governmental authorization required for the ownership or lease of its property or the conduct of its business, which violation, non-compliance or failure would individually or in the aggregate have a Material Adverse Effect and the Company has not received notice of any proceedings relating to the revocation or material modification of any such license, certificate, permit or other authorization, which revocation or material modification could reasonably be expected to have a Material Adverse Effect.
(xii) Neither the Company nor any subsidiary is in violation or default of (i) any provision of its charter or bylaws, (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 it is a party or bound or to which its property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree of any Federal, state, local or foreign court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or such subsidiary or any of its or their properties, as applicable, which violation or default, in the case of clauses (ii) and (iii), would have a Material Adverse Effect.
(xiii) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, who have certified certain financial statements of the Company and its consolidated subsidiaries and delivered their report with respect to such audited consolidated financial statements and schedules included in or incorporated by reference in the Prospectus, are independent public accountants with respect to the Company within meaning of the 1933 Act and the applicable published rules and regulations thereunder for the periods so reported.
(xiv) The Company has filed all foreign, federal, state and local tax returns that are required to be filed or has requested extensions thereof (except in any case in which the failure so to file would not have a Material Adverse Effect) and has paid all taxes required to be paid by it and any other assessment, fine or penalty levied against it, to the extent that any of the foregoing is due and payable, except for any such assessment, fine or penalty that is currently being contested in good faith or as would not have a Material Adverse Effect.
(xv) The Company and each of its subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as are prudent and customary in the businesses in which they are engaged; neither the Company nor any such subsidiary has been refused any insurance coverage sought or applied for; and neither the Company nor any such subsidiary has any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not have a Material Adverse Effect.
(xvi) No subsidiary of the Company is currently prohibited, directly or indirectly, from paying any dividends to the Company, from making any other distribution on such subsidiary's capital stock, from repaying to the Company any loans or advance to such subsidiary from the Company or from transferring any of such subsidiary's property or assets to the Company or any other subsidiary of the Company, except as may be described in or contemplated by the Prospectus and except as would not result in a Material Adverse Effect.
(xvii) The Company and its subsidiaries possess all certificates, authorizations and permits issued by the appropriate Federal, state or foreign regulatory authorities necessary to conduct their respective businesses, except for such certificates, authorizations and permits as to which the failure to so own, hold or possess would not have a Material Adverse Effect, and neither the Company nor any such subsidiary has received any notice of proceedings relating to the revocation or modification of any such certificate, authorization or permit which, singly or in the aggregate, if the subject of any unfavorable decision, ruling or finding, would result in a Material Adverse Effect.
(xviii) Neither the Company nor any of its subsidiaries is in violation of any Federal or state law or regulation relating to occupational safety and health or to the storage, handling or transportation of hazardous or toxic materials, the Company and its subsidiaries have received all permits, licenses or other approval required of them under applicable Federal and state occupational safety and health and environmental laws and regulations to conduct their respective businesses, and the Company and each such subsidiary is in compliance with all terms and conditions of any such permit, license or approval, except any such violation of law or regulation, failure to receive required permits, licenses or other approvals or failure to comply with the terms and conditions of such permits, licenses or approvals which would not, singly or in the aggregate, result in a Material Adverse Effect.
(xix) The Company and each of its subsidiaries owns, possesses, licenses or has other rights to use all material patents, patent applications, trade and service marks, trade and service ▇▇▇▇ registrations, trade names, copyrights, license, inventions, trade secrets, technology, know-how and other intellectual property (collectively, the "Intellectual Property") necessary for the conduct of their respective business as now conducted or as proposed in the Prospectus to be conducted, subject to such limitations on the use of, or the rights to use such Intellectual Property that, individually or in the aggregate, would not have a Material Adverse Effect.
(xx) The Company and each of its subsidiaries has fulfilled its obligations, if an
Appears in 1 contract