Representations and Warranties - General. 6.1 The REIT represents and warrants to the Underwriters, and acknowledges that each Underwriter is relying upon such representations and warranties, that: (a) the REIT is a limited partnership validly existing under the Laws of the Province of Ontario, and through the board of directors of the GP it has all requisite power and authority to carry on its business or activities and to indirectly own or lease its properties, assets and related business and operations, and to execute, deliver and carry out its obligations hereunder and under the other Material Contracts to which it is a party, as applicable; (b) each of the REIT Entities (other than the REIT) is a corporation, partnership or limited liability company incorporated or created and existing and is validly subsisting under the Laws of its jurisdiction of incorporation, and each such REIT Entity has the corporate or equivalent power and authority to carry on its business or activities and to own or lease its assets and to execute, deliver and carry out its obligations under the Material Contracts to which it is a party, as applicable; (c) other than disclosed in the Preliminary Prospectus and the Prospectus, the REIT is the owner of all of the outstanding securities of the U.S. REIT and the indirect owner of all of the outstanding securities of Lodging Properties, Lodging Enterprises, AHIP Properties, AHIP Enterprises, IML Properties LLC and IML Enterprises LLC; (d) AHIP Properties is the owner of all of the outstanding securities of the Acquisition LLCs and the direct or indirect owner of all of the outstanding securities of the Acquisition LPs; (e) AHIP Enterprises is the owner of all of the outstanding securities of the Acquisition Enterprises LLCs; (f) the ownership structure of the REIT Entities is as set out in the Preliminary Prospectus and the Prospectus and, except as disclosed in the Preliminary Prospectus and the Prospectus, all securities of the REIT Entities held by the REIT or any other REIT Entity are held free and clear of all liens, charges, encumbrances and any other rights of others with the exception that U.S. REIT has granted a security interest to INTRUST Bank, N.A. of its (i) sole membership interests in each of Lodging Properties and Lodging Enterprises, pursuant to a pledge agreement dated December 5, 2014; (ii) sole membership interests in each of Lodging Properties and Lodging Enterprises, pursuant to a pledge and security agreement dated December 5, 2016; (g) other than as disclosed in the Preliminary Prospectus and the Prospectus, there is no agreement to which any REIT Entity is a party in force or effect which in any manner affects or will affect the voting or control of any of the securities of the REIT Entities, other than the Voting Trust Agreement; (h) the REIT is a reporting issuer or the equivalent not in default under the Securities Laws; (i) each of the REIT Entities (other than Lodging Enterprises for periods prior to February 20, 2013) has conducted and is conducting its affairs or business as contemplated in the Preliminary Prospectus and the Prospectus in compliance in all material respects with all Laws and each of the REIT Entities is licensed, registered or qualified and has all necessary licences and permits in all jurisdictions in which it carries on its affairs or business and will immediately following the direct or indirect acquisition thereof by the REIT in respect of the Sunstone Embassy Suites Portfolio and the Midwestern 3 Embassy Suites Portfolio, be so licensed, registered or qualified and will have such licences and permits, in order to carry on its affairs or business after giving effect to such acquisition, to enable its affairs or business to be conducted as contemplated in the Preliminary Prospectus and the Prospectus and to enable it to own or lease and operate its property and assets, except, in each case, where the failure to satisfy such a requirement could not reasonably be expected to have a material adverse effect on the business, financial condition, assets, liabilities (contingent or otherwise), results of operations or prospects of the REIT Entities (taken as a whole), and all such licences, registrations, qualifications and permits are, or in respect of the Sunstone Embassy Suites Portfolio and the Midwestern 3 Embassy Suites Portfolio will be, valid and existing and in good standing, except where the failure to satisfy such a requirement could not reasonably be expected to have a material adverse effect on the business, financial condition, assets, liabilities (contingent or otherwise), results of operations or prospects of the REIT Entities (taken as a whole) and none of them contains, or in respect of the Sunstone Embassy Suites Portfolio and the Midwestern 3 Embassy Suites Portfolio will contain, any term, provision, condition or limitation which has or could reasonably be expected to have a material adverse effect on the business, financial condition, assets, liabilities (contingent or otherwise), results of operations or prospects of the REIT Entities (taken as a whole); (j) all of the Currently Owned Properties are currently being operated in compliance with all Laws in all material respects; (k) the REIT has no Knowledge of any legislation, regulation, by-law or other lawful requirement currently in force or proposed to be brought into force by any Governmental Authority with which the REIT Entities will be unable to comply and/or which could reasonably be expected to have a material adverse effect on the business, financial condition, assets, liabilities (contingent or otherwise), results of operations or prospects of the REIT Entities (taken as a whole); no written notice has been received by any REIT Entity of any pending or threatened administrative, regulatory or judicial actions, suits, demands, demand letters, claims, liens, non-compliances or violations, investigations or proceeding relating to the actual or alleged breach of any licences, permits, legislation, regulations, by-laws or other requirements to which any REIT Entity, Currently Owned Property or any of the Sunstone Embassy Suites Properties and the Midwestern 3 Embassy Suites Properties is or will be subject which could reasonably be expected to have a material adverse effect on the business, financial condition, assets, liabilities (contingent or otherwise), results of operations or prospects of the REIT Entities (taken as a whole); (l) the forward-looking statements (as such forward-looking statements are described in the Preliminary Prospectus and the Prospectus under the caption “Forward-Looking Statements”) included in the Preliminary Prospectus and the Prospectus are based on or derived from sources which the REIT believes to be reliable and accurate or represent the REIT’s good faith estimates; (m) all of the Currently Owned Properties are currently being operated, and to the Knowledge of the REIT Entities have been operated, in compliance with Environmental Laws, including all Environmental Permits, in all material respects. The Environmental Permits are valid and existing and in good standing in all material respects. There are no facts relating to the Currently Owned Properties that are likely to give rise to a violation of Environmental Laws in any material respect. To the Knowledge of the REIT and other than as disclosed in the Preliminary Prospectus and the Prospectus, there are no facts that would require any of the REIT Entities to make future material capital expenditures to comply with Environmental Laws now in force or currently proposed in respect of the Currently Owned Properties; (n) other than as specifically disclosed in any environmental reports relating to the Currently Owned Properties, the Sunstone Embassy Suites Properties and the Midwestern 3 Embassy Suites Properties (copies of which have previously been provided to counsel to the Underwriters), no REIT Entity has, or in respect of the Sunstone Embassy Suites Properties and the Midwestern 3 Embassy Suites Properties will have at the time of their direct or indirect acquisition by the REIT, any liability (contingent or otherwise) of which the REIT has Knowledge in connection with: (i) any spill, discharge, release or threatened release of any Hazardous Substances on or into the Environment in connection with any of the Currently Owned Properties, the Sunstone Embassy Suites Properties or the Midwestern 3 Embassy Suites Properties; or (ii) the presence of any Hazardous Substances on, in or under the Currently Owned Properties, the Sunstone Embassy Suites Properties or the Midwestern 3 Embassy Suites Properties and the buildings constructed thereon; (o) all of the Currently Owned Properties and the buildings constructed thereon are, the Sunstone Embassy Suites Properties and the buildings constructed thereon and the Midwestern 3 Embassy Suites Properties and the buildings constructed thereon, will be at the time of their direct or indirect acquisition by the REIT, insured by the REIT against all loss from damage by hazards or risks normally insured against for properties and buildings of a similar type and usage, with reasonable deductibles; (p) insurance coverage against such risks and in such amounts as are reasonable for owners of businesses similar to that carried on by the REIT is currently in place with responsible insurers and that coverage is in full force and effect; none of the REIT Entities is in default with respect to any of the provisions contained in policies of insurance of the REIT or the Currently Owned Properties or has failed to give any notice or pay any premium or present any claim under any such insurance policy that could reasonably be expected to have a material adverse effect on the business, financial condition, assets, liabilities (contingent or otherwise) or results of operations of the REIT Entities (taken as a whole); (q) all of the Currently Owned Properties are in compliance with all applicable building and zoning by-laws in all material respects; (r) the trust record, corporate books and minute books of each of the REIT Entities (excluding Lodging Enterprises) contain, or will contain by the date that is three days before the Closing Date, in all material respects, complete and accurate minutes of the meetings of the trustees, directors and committees thereof and shareholders and unitholders, as applicable, held since their respective dates of formation or incorporation, and all such meetings were duly called and held and the unit or share certificate books, register of unitholders and shareholders, registers of transfers and registers of trustees and directors of the REIT Entities (excluding Lodging Enterprises) are complete and accurate; (s) no REIT Entity is a party to or bound by any contract with or commitment to any trade union, council of trade unions, employee bargaining agent or Affiliated bargaining agent and no REIT Entity has conducted negotiations with respect to any such future contracts or commitments, no labour representatives hold bargaining rights with respect to any employees of any REIT Entity, the REIT or any Affiliate or Associate thereof, no strike, lock out or other labour action currently exists or, to the Knowledge of the REIT, is contemplated or threatened; (t) none of the REIT Entities have any liability under any Employee Plans that, individually or in the aggregate, would reasonably be expected to have a material adverse effect on the business, financial condition, assets, liabilities (contingent or otherwise), results of operations or prospects of the REIT Entities (taken as a whole); (u) the REIT has conducted and is conducting its business and affairs in compliance in all material respects with the terms and provisions of the REIT LP Agreement; (v) the Currently Owned Properties and the business conducted thereat are not experiencing any significant difficulties that are operational in nature which could reasonably be expected to have a material adverse effect on the business, financial condition, assets, liabilities (contingent or otherwise), results of operations or prospects of the REIT Entities (taken as a whole); (w) except as set forth in the Preliminary Prospectus and the Prospectus, as applicable: (i) all of the Currently Owned Properties and related assets are beneficially owned 100%, directly or indirectly, by the REIT; (ii) immediately following the time of their direct or indirect acquisition by the REIT (should such acquisition occur), the Sunstone Embassy Suites Properties and related assets and the Midwestern 3 Embassy Suites Properties and related assets will be beneficially owned 100% indirectly by the REIT; (iii) other than with respect to the Glenwood, Minnesota property and the Low Moor, Virginia property, there are no co-ownership or joint venture arrangements in place or options in favour of third parties with respect to any of the Currently Owned Properties, any of the Sunstone Embassy Suites Properties, any of the Midwestern 3 Embassy Suites Properties or any of their respective assets; (iv) registered title to the Currently Owned Properties is held by REIT Entities that are owned 100%, directly or indirectly, by the REIT; (v) immediately following the time of their acquisition by the REIT (should such acquisition occur), registered title to the Sunstone Embassy Suites Properties and the Midwestern 3 Embassy Suites Properties will be held by REIT Entities that are owned 100% directly or indirectly by the REIT;
Appears in 1 contract
Samples: Underwriting Agreement
Representations and Warranties - General. 6.1 The REIT represents and warrants to the Underwriters, and acknowledges that each Underwriter is relying upon such representations and warranties, that:
(a) the REIT is a limited partnership validly existing under the Laws of the Province of Ontario, and through the board of directors of the GP it has all requisite power and authority to carry on its business or activities and to indirectly own or lease and to indirectly operate its properties, assets and related business and operations, and to execute, deliver and carry out its obligations hereunder and under the other Material Contracts to which it is a party, as applicable;
(b) each of the REIT Entities (other than the REIT) is a corporation, partnership or limited liability company incorporated or created and existing and is validly subsisting under the Laws of its jurisdiction of incorporation, and each such REIT Entity has the corporate or equivalent power and authority to carry on its business or activities and to own or lease and to operate its assets and to execute, deliver and carry out its obligations under the Material Contracts to which it is a party, as applicable;
(c) other than disclosed in the Preliminary Prospectus and the Prospectus, the REIT is the owner of all of the outstanding securities of the U.S. REIT and the indirect owner of all of the outstanding securities of Lodging Properties, Lodging Enterprises, AHIP Properties, Properties and AHIP Enterprises, IML Properties LLC and IML Enterprises LLC;
(d) AHIP Properties is the owner of all of the outstanding securities of the Acquisition LLCs and the direct or indirect owner of all of the outstanding securities of the Acquisition LPs;
(e) AHIP Enterprises is the owner of all of the outstanding securities of the Acquisition Enterprises LLCs;
(f) immediately following the closing of the Acquisition, the ownership structure of the REIT Entities is will be as that set out in the Preliminary Prospectus and the Prospectus and, except as disclosed in the Preliminary Prospectus and the Prospectus, all securities of the REIT Entities held by the REIT or any other REIT Entity are held free and clear of all liens, charges, encumbrances and any other rights of others with the exception that U.S. REIT has granted a security interest to INTRUST Bank, N.A. of its (i) sole membership interests in each of Lodging Properties and Lodging Enterprises, pursuant to a pledge agreement dated December 5, 2014; (ii) sole membership interests in each of Lodging Properties and Lodging Enterprises, pursuant to a pledge and security agreement dated December 5, 2016others;
(g) other than as disclosed in the Preliminary Prospectus and the Prospectus, there is no agreement to which any REIT Entity is a party in force or effect which in any manner affects or will affect the voting or control of any of the securities of the REIT Entities, other than the Pledge Agreement and the Voting Trust Agreement;
(h) the REIT is a reporting issuer or the equivalent not in default under the Securities Laws;
(i) each of the REIT Entities (other than Lodging Enterprises Enterprises, for periods prior to February 20, 2013) has conducted and is conducting its affairs or business as contemplated in the Preliminary Prospectus and the Prospectus in compliance in all material respects with all Laws and each of the REIT Entities is licensed, registered or qualified and has all necessary licences and permits in all jurisdictions in which it carries on its affairs or business and will will, immediately following the direct or indirect acquisition thereof by the REIT Acquisition Closing Time in respect of the Sunstone Embassy Suites Portfolio and the Midwestern 3 Embassy Suites PortfolioAcquisition Properties, be so licensed, registered or qualified and will have such licences and permits, in order to carry on its affairs or business after giving effect to such acquisitionthe Acquisition, in each case, to enable its affairs or business to be conducted as contemplated in the Preliminary Prospectus and the Prospectus and to enable it to own or lease and operate its property and assets, except, in each case, where the failure to satisfy such a requirement could not reasonably be expected to have a material adverse effect on the business, financial condition, assets, liabilities (contingent or otherwise), results of operations or prospects of the REIT Entities (taken as a whole), and all such licences, registrations, qualifications and permits are, or in respect of the Sunstone Embassy Suites Portfolio and the Midwestern 3 Embassy Suites Portfolio Acquisition Properties will be, valid and existing and in good standing, except where the failure to satisfy such a requirement could not reasonably be expected to have a material adverse effect on the business, financial condition, assets, liabilities (contingent or otherwise), results of operations or prospects of the REIT Entities (taken as a whole) and none of them contains, or in respect of the Sunstone Embassy Suites Portfolio and the Midwestern 3 Embassy Suites Portfolio Acquisition Properties will contain, any term, provision, condition or limitation which has or could reasonably be expected to have a material adverse effect on the business, financial condition, assets, liabilities (contingent or otherwise), results of operations or prospects of the REIT Entities (taken as a whole);
(j) all of the Currently Owned Properties are currently being operated in compliance with all Laws in all material respects;
(k) the REIT has no Knowledge of any legislation, regulation, by-law or other lawful requirement currently in force or proposed to be brought into force by any Governmental Authority with which the REIT Entities will be unable to comply and/or which could reasonably be expected to have a material adverse effect on the business, financial condition, assets, liabilities (contingent or otherwise), results of operations or prospects of the REIT Entities (taken as a whole); no written notice has been received by any REIT Entity of any pending or threatened administrative, regulatory or judicial actions, suits, demands, demand letters, claims, liens, non-non- compliances or violations, investigations or proceeding relating to the actual or alleged breach of any licences, permits, legislation, regulations, by-laws or other requirements to which any REIT Entity, Currently Owned Property Property, or any of the Sunstone Embassy Suites Properties and the Midwestern 3 Embassy Suites Properties Acquisition Property is or will be subject which could reasonably be expected to have a material adverse effect on the business, financial condition, assets, liabilities (contingent or otherwise), results of operations or prospects of the REIT Entities (taken as a whole);
(l) except as described in the Preliminary Prospectus and the Prospectus, no limitations were imposed by the REIT upon the scope of the review of any of the parties commissioned to prepare the Reports other than as set forth in their letters of engagement;
(m) each of the Reports has been commissioned by the REIT upon ordinary commercial terms;
(n) the REIT has no Knowledge of any material facts that are contrary to any of the assumptions, conclusions or descriptions contained in the Reports;
(o) the forward-looking statements (as such forward-looking statements are described in the Preliminary Prospectus and the Prospectus under the caption “Forward-Looking Statements”) included in the Preliminary Prospectus and the Prospectus are based on or derived from sources which the REIT believes to be reliable and accurate or represent the REIT’s good faith estimates;
(mp) all of the Currently Owned Properties are currently being operated, and to the Knowledge of the REIT Entities have been operated, in compliance with Environmental Laws, including all Environmental Permits, in all material respects. The Environmental Permits are valid and existing and in good standing in all material respects. There are no facts relating to the Currently Owned Properties that are likely to give rise to a violation of Environmental Laws in any material respect. To the Knowledge of the REIT and other than as disclosed in the Preliminary Prospectus and the Prospectus, there are no facts that would require any of the REIT Entities to make future material capital expenditures to comply with Environmental Laws now in force or currently proposed in respect of the Currently Owned Properties;
(nq) other than as specifically disclosed in the Phase I ESA Reports and any environmental reports relating to the Currently Owned Properties, the Sunstone Embassy Suites Properties and the Midwestern 3 Embassy Suites Properties (copies of which have previously been provided to counsel to the Underwriters), no REIT Entity has, or in respect of the Sunstone Embassy Suites Properties and the Midwestern 3 Embassy Suites Properties Acquisition Properties, will have at the time of their direct or indirect acquisition by the REITAcquisition Closing Time, any liability (contingent or otherwise) of which the REIT has Knowledge in connection with: (i) any spill, discharge, release or threatened release of any Hazardous Substances on or into the Environment in connection with any of the Currently Owned Properties, the Sunstone Embassy Suites Properties or the Midwestern 3 Embassy Suites Properties; Acquisition Properties or (ii) the presence of any Hazardous Substances on, in or under the Currently Owned Properties, the Sunstone Embassy Suites Properties or the Midwestern 3 Embassy Suites Acquisition Properties and the buildings constructed thereon;
(or) all of the Currently Owned Properties and the buildings constructed thereon are, and all of the Sunstone Embassy Suites Acquisition Properties and the buildings constructed thereon and the Midwestern 3 Embassy Suites Properties and the buildings constructed thereon, will be at the time of their direct or indirect acquisition by the REITAcquisition Closing Time, insured by the REIT against all loss from damage by hazards or risks normally insured against for properties and buildings of a similar type and usage, with reasonable deductibles;
(ps) insurance coverage against such risks and in such amounts as are reasonable for owners of businesses similar to that carried on by the REIT is currently in place with responsible insurers and that coverage is in full force and effect; none of the REIT Entities is in default with respect to any of the provisions contained in policies of insurance of the REIT or the Currently Owned Properties or has failed to give any notice or pay any premium or present any claim under any such insurance policy that could reasonably be expected to have a material adverse effect on the business, financial condition, assets, liabilities (contingent or otherwise) or results of operations of the REIT Entities (taken as a whole);
(qt) all of the Currently Owned Properties are in compliance with all applicable building and zoning by-laws in all material respects;
(ru) the trust record, corporate books and minute books of each of the REIT Entities (excluding Lodging Enterprises) contain, or will contain by the date that is three days before the Closing Date, in all material respects, complete and accurate minutes of the meetings of the trustees, directors and committees thereof and shareholders and unitholders, as applicable, held since their respective dates of formation or incorporation, and all such meetings were duly called and held and the unit or share certificate books, register of unitholders and shareholders, registers of transfers and registers of trustees and directors of the REIT Entities (excluding Lodging Enterprises) are complete and accurate;
(sv) no REIT Entity is a party to or bound by any contract with or commitment to any trade union, council of trade unions, employee bargaining agent or Affiliated bargaining agent and no REIT Entity has conducted negotiations with respect to any such future contracts or commitments, no labour representatives hold bargaining rights with respect to any employees of any REIT Entity, the REIT or any Affiliate or Associate thereof, no strike, lock out or other labour action currently exists or, to the Knowledge of the REIT, is contemplated or threatened;
(tw) other than as disclosed in the Preliminary Prospectus and the Prospectus, none of the REIT Entities have any liability under any Employee Plans that, individually or in the aggregate, would reasonably be expected to have a material adverse effect on the business, financial condition, assets, liabilities (contingent or otherwise), results of operations or prospects of the REIT Entities (taken as a whole)Plans;
(ux) the REIT has conducted and is conducting its business and affairs in compliance in all material respects with the terms and provisions of the REIT LP Agreement;
(vy) the Currently Owned Properties and the business conducted thereat are not experiencing any significant difficulties that are operational in nature which could reasonably be expected to have a material adverse effect on the business, financial condition, assets, liabilities (contingent or otherwise), results of operations or prospects of the REIT Entities (taken as a whole);
(wz) except as set forth in the Preliminary Prospectus and the Prospectus, as applicable: (i) all of the Currently Owned Properties and related assets are beneficially owned 100%, directly or indirectly, by the REIT; (ii) immediately following the time Acquisition Closing Time, at least three of their direct or indirect acquisition by the REIT (should such acquisition occur), the Sunstone Embassy Suites Properties and related assets and the Midwestern 3 Embassy Suites four Acquisition Properties and related assets will be beneficially owned 100% indirectly %, indirectly, by the REIT; (iii) other than with respect to the Glenwood, Minnesota property and the Low Moor, Virginia property, there are no co-ownership or joint venture arrangements in place or options in favour of third parties with respect to any of the Currently Owned Properties, any of the Sunstone Embassy Suites Properties, any of the Midwestern 3 Embassy Suites Acquisition Properties or any of their respective assets; (iv) registered title to the Currently Owned Properties is held by REIT Entities that are owned 100%, directly or indirectly, by the REIT; (v) immediately following the time of their acquisition by the REIT (should such acquisition occur)Acquisition Closing Time, registered title to at least three of the Sunstone Embassy Suites Properties and the Midwestern 3 Embassy Suites four Acquisition Properties will be held by REIT Entities that are owned 100% %, directly or indirectly indirectly, by the REIT; (vi) the applicable REIT Entity has good and marketable freehold title in fee simple to the Currently Owned Properties, subject only to encumbrances disclosed in the Preliminary Prospectus and the Prospectus or that do not materially and adversely affect the value, use or operation of the Currently Owned Properties; (vii) immediately following the Acquisition Closing Time, the applicable REIT Entity will have good and marketable freehold title in fee simply to at least three of the four Acquisition Properties, subject only to encumbrances disclosed in the Preliminary Prospectus and the Prospectus or that do not materially and adversely affect the value, use or operation of the Currently Owned Properties;
Appears in 1 contract
Samples: Underwriting Agreement
Representations and Warranties - General. 6.1 The REIT represents and warrants to the Underwriters, and acknowledges that each Underwriter is relying upon such representations and warranties, that:
(a) the REIT is a limited partnership validly existing under the Laws of the Province of Ontario, and through the board of directors of the GP it has all requisite power and authority to carry on its business or activities and to indirectly own or lease and to indirectly operate its properties, assets and related business and operations, and to execute, deliver and carry out its obligations hereunder and under the other Material Contracts to which it is a party, as applicable;
(b) each of the REIT Entities (other than the REIT) is a corporation, partnership or limited liability company incorporated or created and existing and is validly subsisting under the Laws of its jurisdiction of incorporation, and each such REIT Entity has the corporate or equivalent power and authority to carry on its business or activities and to own or lease and to operate its assets and to execute, deliver and carry out its obligations under the Material Contracts to which it is a party, as applicable;
(c) other than disclosed in the Preliminary Prospectus and the Prospectus, the REIT is the owner of all of the outstanding securities of the U.S. REIT and the indirect owner of all of the outstanding securities of Lodging Properties, Lodging Enterprises, AHIP Properties, Properties and AHIP Enterprises, IML Properties LLC and IML Enterprises LLC;
(d) AHIP Properties is the owner of all of the outstanding securities of the Acquisition LLCs and the direct or indirect owner of all of the outstanding securities of the Acquisition LPs;
(e) AHIP Enterprises is the owner of all of the outstanding securities of the Acquisition Enterprises LLCs;
(f) immediately following the closing of the Acquisition, the ownership structure of the REIT Entities is will be as that set out in the Preliminary Prospectus and the Prospectus and, except as disclosed in the Preliminary Prospectus and the Prospectus, all securities of the REIT Entities held by the REIT or any other REIT Entity are held free and clear of all liens, charges, encumbrances and any other rights of others with the exception that U.S. REIT has granted a security interest to INTRUST Bank, N.A. of its (i) sole membership interests in each of Lodging Properties and Lodging Enterprises, pursuant to a pledge agreement dated December 5, 2014; (ii) sole membership interests in each of Lodging Properties and Lodging Enterprises, pursuant to a pledge and security agreement dated December 5, 2016others;
(g) other than as disclosed in the Preliminary Prospectus and the Prospectus, there is no agreement to which any REIT Entity is a party in force or effect which in any manner affects or will affect the voting or control of any of the securities of the REIT Entities, other than the Pledge Agreement and the Voting Trust Agreement;
(h) the REIT is a reporting issuer or the equivalent not in default under the Securities Laws;
(i) each of the REIT Entities (other than Lodging Enterprises Enterprises, for periods prior to February 20, 2013) has conducted and is conducting its affairs or business as contemplated in the Preliminary Prospectus and the Prospectus in compliance in all material respects with all Laws and each of the REIT Entities is licensed, registered or qualified and has all necessary licences and permits in all jurisdictions in which it carries on its affairs or business and will will, immediately following the direct or indirect acquisition thereof by the REIT Acquisition Closing Time in respect of the Sunstone Embassy Suites Portfolio and the Midwestern 3 Embassy Suites PortfolioAcquisition Properties, be so licensed, registered or qualified and will have such licences and permits, in order to carry on its affairs or business after giving effect to such acquisitionthe Acquisition, in each case, to enable its affairs or business to be conducted as contemplated in the Preliminary Prospectus and the Prospectus and to enable it to own or lease and operate its property and assets, except, in each case, where the failure to satisfy such a requirement could not reasonably be expected to have a material adverse effect on the business, financial condition, assets, liabilities (contingent or otherwise), results of operations or prospects of the REIT Entities (taken as a whole), and all such licences, registrations, qualifications and permits are, or in respect of the Sunstone Embassy Suites Portfolio and the Midwestern 3 Embassy Suites Portfolio Acquisition Properties will be, valid and existing and in good standing, except where the failure to satisfy such a requirement could not reasonably be expected to have a material adverse effect on the business, financial condition, assets, liabilities (contingent or otherwise), results of operations or prospects of the REIT Entities (taken as a whole) and none of them contains, or in respect of the Sunstone Embassy Suites Portfolio and the Midwestern 3 Embassy Suites Portfolio Acquisition Properties will contain, any term, provision, condition or limitation which has or could reasonably be expected to have a material adverse effect on the business, financial condition, assets, liabilities (contingent or otherwise), results of operations or prospects of the REIT Entities (taken as a whole);
(j) all of the Currently Owned Properties are currently being operated in compliance with all Laws in all material respects;
(k) the REIT has no Knowledge of any legislation, regulation, by-law or other lawful requirement currently in force or proposed to be brought into force by any Governmental Authority with which the REIT Entities will be unable to comply and/or which could reasonably be expected to have a material adverse effect on the business, financial condition, assets, liabilities (contingent or otherwise), results of operations or prospects of the REIT Entities (taken as a whole); no written notice has been received by any REIT Entity of any pending or threatened administrative, regulatory or judicial actions, suits, demands, demand letters, claims, liens, non-non- compliances or violations, investigations or proceeding relating to the actual or alleged breach of any licences, permits, legislation, regulations, by-laws or other requirements to which any REIT Entity, Currently Owned Property Property, or any of the Sunstone Embassy Suites Properties and the Midwestern 3 Embassy Suites Properties Acquisition Property is or will be subject which could reasonably be expected to have a material adverse effect on the business, financial condition, assets, liabilities (contingent or otherwise), results of operations or prospects of the REIT Entities (taken as a whole);
(l) except as described in the Preliminary Prospectus and the Prospectus, no limitations were imposed by the REIT upon the scope of the review of any of the parties commissioned to prepare the Reports other than as set forth in their letters of engagement;
(m) each of the Reports has been commissioned by the REIT upon ordinary commercial terms;
(n) the REIT has no Knowledge of any material facts that are contrary to any of the assumptions, conclusions or descriptions contained in the Reports;
(o) the forward-looking statements (as such forward-looking statements are described in the Preliminary Prospectus and the Prospectus under the caption cap-Lotoikinog n “Forward-Looking Forw Statements”) included in the Preliminary Prospectus and the Prospectus iPrnelicmilnaurydPerosdpectiusnandtthheeProspectus are based on or derived from sources which the REIT believes to be reliable and accurate or represent the REIT’s good faith estimatesthgeood RfaiEthIesTtim’astes;
(mp) all of the Currently Owned Properties are currently being operated, and to the Knowledge of the REIT Entities have been operated, in compliance with Environmental Laws, including all Environmental Permits, in all material respects. The Environmental Permits are valid and existing and in good standing in all material respects. There are no facts relating to the Currently Owned Properties that are likely to give rise to a violation of Environmental Laws in any material respect. To the Knowledge of the REIT and other than as disclosed in the Preliminary Prospectus and the Prospectus, there are no facts that would require any of the REIT Entities to make future material capital expenditures to comply with Environmental Laws now in force or currently proposed in respect of the Currently Owned Properties;
(nq) other than as specifically disclosed in the Phase I ESA Reports and any environmental reports relating to the Currently Owned Properties, the Sunstone Embassy Suites Properties and the Midwestern 3 Embassy Suites Properties (copies of which have previously been provided to counsel to the Underwriters), no REIT Entity has, or in respect of the Sunstone Embassy Suites Properties and the Midwestern 3 Embassy Suites Properties Acquisition Properties, will have at the time of their direct or indirect acquisition by the REITAcquisition Closing Time, any liability (contingent or otherwise) of which the REIT has Knowledge in connection with: (i) any spill, discharge, release or threatened release of any Hazardous Substances on or into the Environment in connection with any of the Currently Owned Properties, the Sunstone Embassy Suites Properties or the Midwestern 3 Embassy Suites Properties; Acquisition Properties or (ii) the presence of any Hazardous Substances on, in or under the Currently Owned Properties, the Sunstone Embassy Suites Properties or the Midwestern 3 Embassy Suites Acquisition Properties and the buildings constructed thereon;
(or) all of the Currently Owned Properties and the buildings constructed thereon are, and all of the Sunstone Embassy Suites Acquisition Properties and the buildings constructed thereon and the Midwestern 3 Embassy Suites Properties and the buildings constructed thereon, will be at the time of their direct or indirect acquisition by the REITAcquisition Closing Time, insured by the REIT against all loss from damage by hazards or risks normally insured against for properties and buildings of a similar type and usage, with reasonable deductibles;
(ps) insurance coverage against such risks and in such amounts as are reasonable for owners of businesses similar to that carried on by the REIT is currently in place with responsible insurers and that coverage is in full force and effect; none of the REIT Entities is in default with respect to any of the provisions contained in policies of insurance of the REIT or the Currently Owned Properties or has failed to give any notice or pay any premium or present any claim under any such insurance policy that could reasonably be expected to have a material adverse effect on the business, financial condition, assets, liabilities (contingent or otherwise) or results of operations of the REIT Entities (taken as a whole);
(qt) all of the Currently Owned Properties are in compliance with all applicable building and zoning by-laws in all material respects;
(ru) the trust record, corporate books and minute books of each of the REIT Entities (excluding Lodging Enterprises) contain, or will contain by the date that is three days before the Closing Date, in all material respects, complete and accurate minutes of the meetings of the trustees, directors and committees thereof and shareholders and unitholders, as applicable, held since their respective dates of formation or incorporation, and all such meetings were duly called and held and the unit or share certificate books, register of unitholders and shareholders, registers of transfers and registers of trustees and directors of the REIT Entities (excluding Lodging Enterprises) are complete and accurate;
(sv) no REIT Entity is a party to or bound by any contract with or commitment to any trade union, council of trade unions, employee bargaining agent or Affiliated bargaining agent and no REIT Entity has conducted negotiations with respect to any such future contracts or commitments, no labour representatives hold bargaining rights with respect to any employees of any REIT Entity, the REIT or any Affiliate or Associate thereof, no strike, lock out or other labour action currently exists or, to the Knowledge of the REIT, is contemplated or threatened;
(tw) other than as disclosed in the Preliminary Prospectus and the Prospectus, none of the REIT Entities have any liability under any Employee Plans that, individually or in the aggregate, would reasonably be expected to have a material adverse effect on the business, financial condition, assets, liabilities (contingent or otherwise), results of operations or prospects of the REIT Entities (taken as a whole)Plans;
(ux) the REIT has conducted and is conducting its business and affairs in compliance in all material respects with the terms and provisions of the REIT LP Agreement;
(vy) the Currently Owned Properties and the business conducted thereat are not experiencing any significant difficulties that are operational in nature which could reasonably be expected to have a material adverse effect on the business, financial condition, assets, liabilities (contingent or otherwise), results of operations or prospects of the REIT Entities (taken as a whole);
(wz) except as set forth in the Preliminary Prospectus and the Prospectus, as applicable: (i) all of the Currently Owned Properties and related assets are beneficially owned 100%, directly or indirectly, by the REIT; (ii) immediately following the time Acquisition Closing Time, at least three of their direct or indirect acquisition by the REIT (should such acquisition occur), the Sunstone Embassy Suites Properties and related assets and the Midwestern 3 Embassy Suites four Acquisition Properties and related assets will be beneficially owned 100% indirectly %, indirectly, by the REIT; (iii) other than with respect to the Glenwood, Minnesota property and the Low Moor, Virginia property, there are no co-ownership or joint venture arrangements in place or options in favour of third parties with respect to any of the Currently Owned Properties, any of the Sunstone Embassy Suites Properties, any of the Midwestern 3 Embassy Suites Acquisition Properties or any of their respective assets; (iv) registered title to the Currently Owned Properties is held by REIT Entities that are owned 100%, directly or indirectly, by the REIT; (v) immediately following the time of their acquisition by the REIT (should such acquisition occur)Acquisition Closing Time, registered title to at least three of the Sunstone Embassy Suites Properties and the Midwestern 3 Embassy Suites four Acquisition Properties will be held by REIT Entities that are owned 100% %, directly or indirectly indirectly, by the REIT; (vi) the applicable REIT Entity has good and marketable freehold title in fee simple to the Currently Owned Properties, subject only to encumbrances disclosed in the Preliminary Prospectus and the Prospectus or that do not materially and adversely affect the value, use or operation of the Currently Owned Properties; (vii) immediately following the Acquisition Closing Time, the applicable REIT Entity will have good and marketable freehold title in fee simply to at least three of the four Acquisition Properties, subject only to encumbrances disclosed in the Preliminary Prospectus and the Prospectus or that do not materially and adversely affect the value, use or operation of the Currently Owned Properties;
Appears in 1 contract
Samples: Underwriting Agreement
Representations and Warranties - General. 6.1 The REIT represents and warrants to the Underwriters, and acknowledges that each Underwriter is relying upon such representations and warranties, that:
(a) the REIT is a limited partnership validly existing under the Laws of the Province of Ontario, and through the board of directors of the GP it has all requisite power and authority to carry on its business or activities and to indirectly own or lease its properties, assets and related business and operations, and to execute, deliver and carry out its obligations hereunder and under the other Material Contracts to which it is a party, as applicable;
(b) each of the REIT Entities (other than the REIT) is a corporation, partnership or limited liability company incorporated or created and existing and is validly subsisting under the Laws of its jurisdiction of incorporation, and each such REIT Entity has the corporate or equivalent power and authority to carry on its business or activities and to own or lease its assets and to execute, deliver and carry out its obligations under the Material Contracts to which it is a party, as applicable;
(c) other than disclosed in the Preliminary Prospectus and the Prospectus, the REIT is the owner of all of the outstanding securities of the U.S. REIT and the indirect owner of all of the outstanding securities of Lodging Properties, Lodging Enterprises, AHIP Properties, Properties and AHIP Enterprises, IML Properties LLC and IML Enterprises LLC;
(d) AHIP Properties is the owner of all of the outstanding securities of the Acquisition LLCs and the direct or indirect owner of all of the outstanding securities of the Acquisition LPs;
(e) AHIP Enterprises is the owner of all of the outstanding securities of the Acquisition Enterprises LLCs;
(f) the ownership structure of the REIT Entities is as set out in the Preliminary Prospectus and the Prospectus and, except as disclosed in the Preliminary Prospectus and the Prospectus, all securities of the REIT Entities held by the REIT or any other REIT Entity are held free and clear of all liens, charges, encumbrances and any other rights of others with the exception that U.S. REIT has granted a security interest to INTRUST Bank, N.A. of its (i) sole membership interests in each of Lodging Properties and Lodging Enterprises, pursuant to a pledge agreement dated December 5, 2014; (ii) sole membership interests in each of Lodging Properties and Lodging Enterprises, pursuant to a pledge and security agreement dated December 5, 2016;
(g) other than as disclosed in the Preliminary Prospectus and the Prospectus, there is no agreement to which any REIT Entity is a party in force or effect which in any manner affects or will affect the voting or control of any of the securities of the REIT Entities, other than the Voting Trust Agreement;
(h) the REIT is a reporting issuer or the equivalent not in default under the Securities Laws;
(i) each of the REIT Entities (other than (A) Lodging Enterprises for periods prior to February 20, 2013, and (B) the Sunstone Entities prior to the closing of the purchase of the Embassy Suites Portfolio) has conducted and is conducting its affairs or business as contemplated in the Preliminary Prospectus and the Prospectus in compliance in all material respects with all Laws and each of the REIT Entities is licensed, registered or qualified and has all necessary licences and permits in all jurisdictions in which it carries on its affairs or business and will immediately following the direct or indirect acquisition thereof by the REIT in respect of the Sunstone Embassy Suites Portfolio and the Midwestern 3 Embassy Suites Portfolio, be so licensed, registered or qualified and will have such licences and permits, in order to carry on its affairs or business after giving effect to such acquisition, to enable its affairs or business to be conducted as contemplated in the Preliminary Prospectus and the Prospectus and to enable it to own or lease and operate its property and assets, except, in each case, where the failure to satisfy such a requirement could not reasonably be expected to have a material adverse effect on the business, financial condition, assets, liabilities (contingent or otherwise), results of operations or prospects of the REIT Entities (taken as a whole), and all such licences, registrations, qualifications and permits are, or in respect of the Sunstone Embassy Suites Portfolio and the Midwestern 3 Embassy Suites Portfolio will be, valid and existing and in good standing, except where the failure to satisfy such a requirement could not reasonably be expected to have a material adverse effect on the business, financial condition, assets, liabilities (contingent or otherwise), results of operations or prospects of the REIT Entities (taken as a whole) and none of them contains, or in respect of the Sunstone Embassy Suites Portfolio and the Midwestern 3 Embassy Suites Portfolio will contain, any term, provision, condition or limitation which has or could reasonably be expected to have a material adverse effect on the business, financial condition, assets, liabilities (contingent or otherwise), results of operations or prospects of the REIT Entities (taken as a whole);
(j) all of the Currently Owned Properties are currently being operated in compliance with all Laws in all material respects;
(k) the REIT has no Knowledge of any legislation, regulation, by-law or other lawful requirement currently in force or proposed to be brought into force by any Governmental Authority with which the REIT Entities will be unable to comply and/or which could reasonably be expected to have a material adverse effect on the business, financial condition, assets, liabilities (contingent or otherwise), results of operations or prospects of the REIT Entities (taken as a whole); no written notice has been received by any REIT Entity of any pending or threatened administrative, regulatory or judicial actions, suits, demands, demand letters, claims, liens, non-compliances or violations, investigations or proceeding relating to the actual or alleged breach of any licences, permits, legislation, regulations, by-laws or other requirements to which any REIT Entity, Currently Owned Property or any of the Sunstone Embassy Suites Properties and the Midwestern 3 Embassy Suites Properties is or will be subject which could reasonably be expected to have a material adverse effect on the business, financial condition, assets, liabilities (contingent or otherwise), results of operations or prospects of the REIT Entities (taken as a whole);
(l) the forward-looking statements (as such forward-looking statements are described in the Preliminary Prospectus and the Prospectus under the caption “Forward-Looking Statements”) included in the Preliminary Prospectus and the Prospectus are based on or derived from sources which the REIT believes to be reliable and accurate or represent the REIT’s good faith estimates;
(m) all of the Currently Owned Properties are currently being operated, and to the Knowledge of the REIT Entities have been operated, in compliance with Environmental Laws, including all Environmental Permits, in all material respects. The Environmental Permits are valid and existing and in good standing in all material respects. There are no facts relating to the Currently Owned Properties that are likely to give rise to a violation of Environmental Laws in any material respect. To the Knowledge of the REIT and other than as disclosed in the Preliminary Prospectus and the Prospectus, there are no facts that would require any of the REIT Entities to make future material capital expenditures to comply with Environmental Laws now in force or currently proposed in respect of the Currently Owned Properties;
(n) other than as specifically disclosed in any environmental reports relating to the Currently Owned Properties, the Sunstone Embassy Suites Properties and the Midwestern 3 Embassy Suites Properties (copies of which have previously been provided to counsel to the Underwriters), no REIT Entity has, or in respect of the Sunstone Embassy Suites Properties and the Midwestern 3 Embassy Suites Properties Properties, will have at the time of their direct or indirect acquisition by the REIT, any liability (contingent or otherwise) of which the REIT has Knowledge in connection with: (i) any spill, discharge, release or threatened release of any Hazardous Substances on or into the Environment in connection with any of the Currently Owned Properties, the Sunstone Embassy Suites Properties or the Midwestern 3 Embassy Suites Properties; or (ii) the presence of any Hazardous Substances on, in or under the Currently Owned Properties, the Sunstone Embassy Suites Properties or the Midwestern 3 Embassy Suites Properties and the buildings constructed thereon;
(o) all of the Currently Owned Properties and the buildings constructed thereon are, and the Sunstone Embassy Suites Properties and the buildings constructed thereon and the Midwestern 3 Embassy Suites Properties and the buildings constructed thereon, will be at the time of their direct or indirect acquisition by the REIT, insured by the REIT against all loss from damage by hazards or risks normally insured against for properties and buildings of a similar type and usage, with reasonable deductibles;
(p) insurance coverage against such risks and in such amounts as are reasonable for owners of businesses similar to that carried on by the REIT is currently in place with responsible insurers and that coverage is in full force and effect; none of the REIT Entities is in default with respect to any of the provisions contained in policies of insurance of the REIT or the Currently Owned Properties or has failed to give any notice or pay any premium or present any claim under any such insurance policy that could reasonably be expected to have a material adverse effect on the business, financial condition, assets, liabilities (contingent or otherwise) or results of operations of the REIT Entities (taken as a whole);
(q) all of the Currently Owned Properties are in compliance with all applicable building and zoning by-laws in all material respects;
(r) the trust record, corporate books and minute books of each of the REIT Entities (excluding Lodging EnterprisesEnterprises and the Sunstone Entities) contain, or will contain by the date that is three days before the Closing Date, in all material respects, complete and accurate minutes of the meetings of the trustees, directors and committees thereof and shareholders and unitholders, as applicable, held since their respective dates of formation or incorporation, and all such meetings were duly called and held and the unit or share certificate books, register of unitholders and shareholders, registers of transfers and registers of trustees and directors of the REIT Entities (excluding Lodging Enterprises) are complete and accurate;
(s) no REIT Entity is a party to or bound by any contract with or commitment to any trade union, council of trade unions, employee bargaining agent or Affiliated bargaining agent and no REIT Entity has conducted negotiations with respect to any such future contracts or commitments, no labour representatives hold bargaining rights with respect to any employees of any REIT Entity, the REIT or any Affiliate or Associate thereof, no strike, lock out or other labour action currently exists or, to the Knowledge of the REIT, is contemplated or threatened;
(t) none of the REIT Entities have any liability under any Employee Plans that, individually or in the aggregate, would reasonably be expected to have a material adverse effect on the business, financial condition, assets, liabilities (contingent or otherwise), results of operations or prospects of the REIT Entities (taken as a whole);
(u) the REIT has conducted and is conducting its business and affairs in compliance in all material respects with the terms and provisions of the REIT LP Agreement;
(v) the Currently Owned Properties and the business conducted thereat are not experiencing any significant difficulties that are operational in nature which could reasonably be expected to have a material adverse effect on the business, financial condition, assets, liabilities (contingent or otherwise), results of operations or prospects of the REIT Entities (taken as a whole);
(w) except as set forth in the Preliminary Prospectus and the Prospectus, as applicable: (i) all of the Currently Owned Properties and related assets are beneficially owned 100%, directly or indirectly, by the REIT; (ii) immediately following the time of their direct or indirect acquisition by the REIT (should such acquisition occur), the Sunstone Embassy Suites Properties and related assets and the Midwestern 3 Embassy Suites Properties and related assets will be beneficially owned 100% indirectly by the REIT; (iii) other than with respect to the Glenwood, Minnesota property and the Low Moor, Virginia property, there are no co-ownership or joint venture arrangements in place or options in favour of third parties with respect to any of the Currently Owned Properties, any of the Sunstone Embassy Suites Properties, any of the Midwestern 3 Embassy Suites Properties or any of their respective assets; (iv) registered title to the Currently Owned Properties is held by REIT Entities that are owned 100%, directly or indirectly, by the REIT; (v) immediately following the time of their acquisition by the REIT (should such acquisition occur), registered title to the Sunstone Embassy Suites Properties and the Midwestern 3 Embassy Suites Properties will be held by REIT Entities that are owned 100% directly or indirectly by the REIT; (vi) the applicable REIT Entity has good and marketable freehold title in fee simple to the Currently Owned Properties, subject only to encumbrances disclosed in the Preliminary Prospectus and the Prospectus or that do not materially and adversely affect the value, use or operation of the Currently Owned Properties;
Appears in 1 contract
Samples: Underwriting Agreement
