Representations, Warranties and Agreements of the Company. Each of the Company and the Operating Partnership, jointly and severally, represent and warrant to, and agree with, DBS, on and as of (i) the date hereof, (ii) each date on which the Company delivers a Transaction Notice (the “Time of Delivery”) or executes and delivers a Terms Agreement, (iii) each Time of Sale (as defined below), (iv) each Settlement Date and (v) each Bring-Down Delivery Date (as defined in Section 6(b)) (each such date listed in (i) through (v), a “Representation Date”), as follows: (a) There is no order preventing or suspending the use of the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus, and, to the knowledge of the Company, no proceeding for that purpose or pursuant to Section 8A of the Act against the Company or related to the offering has been initiated or threatened by the Commission; no notice of objection of the Commission to the use of such Registration Statement pursuant to Rule 401(g)(2) under the Act has been received by the Company; the Registration Statement complied when it initially became effective, complies as of the date hereof and, as then amended or supplemented, as of each other Representation Date will comply, in all material respects, with the requirements of the Act; the conditions to the use of Form S-3ASR in connection with the offering and sale of the Shares as contemplated hereby have been satisfied; the Registration Statement meets, and the offering and sale of the Shares as contemplated hereby complies with, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5)); the Prospectus complied or will comply, at the time it was or will be filed with the Commission, and will comply, as then amended or supplemented, as of each Representation Date (other than the date hereof), in all material respects, with the requirements of the Act; the Registration Statement did not, as of the time of its initial effectiveness, and does not or will not, as then amended or supplemented, as of each Representation Date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; as of each Representation Date (other than the date hereof), the Prospectus, as then amended or supplemented, together with all of the then issued Permitted Free Writing Prospectuses, if any, will not contain an untrue statement of a material fact or omit to state a material fact necessary in
Appears in 3 contracts
Samples: Equity Distribution Agreement (American Campus Communities Operating Partnership LP), Equity Distribution Agreement (American Campus Communities Operating Partnership LP), Equity Distribution Agreement (American Campus Communities Inc)
Representations, Warranties and Agreements of the Company. Each of the The Company represents and the Operating Partnership, jointly and severally, represent and warrant warrants to, and agree agrees with, DBSthe Agents, on and as of (i) the date hereof, ; (ii) each date on which the Company delivers receives a Transaction Notice Acceptance (the “Time of DeliveryAcceptance”); (iii) or each date on which the Company executes and delivers a Terms Agreement, ; (iiiiv) each Time of Sale (as defined belowin Section 3(a), ); (ivv) each Settlement Date Date; and (vvi) each Bring-Down Delivery Date (as defined in Section 6(b)) (each such date listed in (i) through (vvi), a “Representation Date”), as follows:
(a) There The Company meets the requirements for use of Form S-3 under the Act. The Registration Statement is no an “automatic shelf registration statement” as defined under Rule 405 of the Act that automatically became effective not more than three years prior to the date hereof. No stop order preventing or suspending the use of the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus, andProspectus has been issued under the Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Company, no proceeding for that purpose or pursuant to Section 8A of the Act against the Company or related to the offering has been initiated or threatened are contemplated by the Commission; no notice of objection , and any request on the part of the Commission to for additional information has been complied with. The Company has not received from the use of such Registration Statement Commission any notice pursuant to Rule 401(g)(2) under the Act objecting to the use of the automatic shelf registration statement form and the Company has been received by not otherwise ceased to be eligible to use the Company; automatic shelf registration form. At the respective times the Registration Statement complied when it initially became effective, complies as effective (including without limitation any effective dates of any amendments thereto and each deemed effective date with respect to the Agents pursuant to Rule 430B(f)(2) of the date hereof andAct) and at each Representation Date, the Registration Statement and any amendments and supplements thereto complied or will comply, as then amended or supplemented, as of each other Representation Date will complythe case may be, in all material respects, respects with the requirements of the Act; the conditions to the use of Form S-3ASR in connection with the offering and sale of the Shares as contemplated hereby have been satisfied; the Registration Statement meets, and the offering and sale of the Shares as contemplated hereby complies with, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5)); the Prospectus complied or will comply, at the time it was or will be filed with the Commission, and will comply, as then amended or supplemented, as of each Representation Date (other than the date hereof), in all material respects, with the requirements of the Act; the Registration Statement did not, as of the time of its initial effectiveness, and does not or will not, as then amended or supplemented, as of each Representation Datethe case may be, 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; as of each . Neither the Prospectus nor any amendments or supplements thereto, at the time the Prospectus or any such amendment or supplement was issued and at any Representation Date (other than the date hereof)Date, the Prospectus, as then amended included or supplemented, together with all of the then issued Permitted Free Writing Prospectuses, if any, will not contain include an untrue statement of a material fact or omitted or will omit to state a material fact necessary inin 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 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 the Agents expressly for use in the Registration Statement (or any amendment thereto) or Prospectus (or any amendment thereto), it being understood and agreed that the only such information consists of the information appearing in the fifth paragraph under the caption “Plan of Distribution” in the Prospectus Supplement. Each of the Basic Prospectus and the Prospectus Supplement 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 Act, complied when so filed in all material respects with the Act and each preliminary prospectus and the Prospectus delivered to the Agents for use in connection with this offering was identical to the electronically transmitted copies thereof filed on the Commission’s Electronic Data Gathering, Analysis and Retrieval system or any successor system thereto (collectively, “XXXXX”)), except to the extent permitted by Regulation S-T. Each Permitted Free Writing Prospectus, as of its issue date and at all subsequent times through the completion of the public offer and sale of the Shares or until any earlier date that the Company notified or notifies the Agents as described in the next sentence, did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein and any preliminary or other prospectus deemed to be a part thereof that has not been superseded or modified. If at any time following issuance of a Permitted Free Writing Prospectus there occurred or occurs an event or development as a result of which such Permitted Free Writing Prospectus included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances, not misleading, the Company has notified or will notify promptly the Agents so that any use of such Permitted Free Writing Prospectus may cease until it is amended or supplemented. The foregoing two sentences do not apply to statements in or omissions from any Permitted Free Writing Prospectus based upon and in conformity with written information furnished to the Company by the Agents expressly for use therein.
Appears in 3 contracts
Samples: Distribution Agreement (Alliant Energy Corp), Distribution Agreement (Alliant Energy Corp), Distribution Agreement (Alliant Energy Corp)
Representations, Warranties and Agreements of the Company. Each of the Company and the Operating Partnership, jointly and severally, represent and warrant to, and agree with, DBSKeyBanc, on and as of (i) the date hereof, (ii) each date on which the Company delivers a Transaction Notice (the “Time of Delivery”) or executes and delivers a Terms Agreement, (iii) each Time of Sale (as defined below), (iv) each Settlement Date and (v) each Bring-Down Delivery Date (as defined in Section 6(b)) (each such date listed in (i) through (v), a “Representation Date”), as follows:
(a) There is no order preventing or suspending the use of the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus, and, to the knowledge of the Company, no proceeding for that purpose or pursuant to Section 8A of the Act against the Company or related to the offering has been initiated or threatened by the Commission; no notice of objection of the Commission to the use of such Registration Statement pursuant to Rule 401(g)(2) under the Act has been received by the Company; the Registration Statement complied when it initially became effective, complies as of the date hereof and, as then amended or supplemented, as of each other Representation Date will comply, in all material respects, with the requirements of the Act; the conditions to the use of Form S-3ASR in connection with the offering and sale of the Shares as contemplated hereby have been satisfied; the Registration Statement meets, and the offering and sale of the Shares as contemplated hereby complies with, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5)); the Prospectus complied or will comply, at the time it was or will be filed with the Commission, and will comply, as then amended or supplemented, as of each Representation Date (other than the date hereof), in all material respects, with the requirements of the Act; the Registration Statement did not, as of the time of its initial effectiveness, and does not or will not, as then amended or supplemented, as of each Representation Date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; as of each Representation Date (other than the date hereof), the Prospectus, as then amended or supplemented, together with all of the then issued Permitted Free Writing Prospectuses, if any, will not contain an untrue statement of a material fact or omit to state a material fact necessary inits
Appears in 3 contracts
Samples: Equity Distribution Agreement (American Campus Communities Operating Partnership LP), Equity Distribution Agreement (American Campus Communities Operating Partnership LP), Equity Distribution Agreement (American Campus Communities Inc)
Representations, Warranties and Agreements of the Company. Each of the The Company represents and the Operating Partnership, jointly warrants to and severally, represent and warrant to, and agree with, DBS, on and as of (i) the date hereof, (ii) agrees with each date on which the Company delivers a Transaction Notice (the “Time of Delivery”) or executes and delivers a Terms Agreement, (iii) each Time of Sale (as defined below), (iv) each Settlement Date and (v) each Bring-Down Delivery Date (as defined in Section 6(b)) (each such date listed in (i) through (v), a “Representation Date”), as followsUnderwriter that:
(a) There A registration statement on Form S-1 (File No. 333-______) with respect to the Shares, including a preliminary 3 form of prospectus, copies of which have heretofore been delivered to you, has been prepared by the Company in conformity with the requirements of the Securities Act of 1933, as amended (the "Act"), and the rules and regulations (the "Rules and Regulations") of the Securities and Exchange Commission (the "Commission") under the Act, and has been filed with the Commission under the Act; such amendment or amendments to such registration statement, copies of which have heretofore been delivered to you, as may have been made prior to the date of this Agreement have been so prepared and filed; and the Company has so prepared and proposes so to file in a timely manner after the effective date of such registration statement the final form of prospectus. Such registration statement (including all exhibits thereto), as finally amended and revised as of the time the Underwriters first offer the Shares for sale to the public together with information, if any, which is permitted to be, and is, subsequently filed pursuant to Rule 430A of the Rules and Regulations, is herein referred to as the "Registration Statement". Such prospectus in the form filed pursuant to Rule 424(b) of the Rules and Regulations, or, if no final prospectus is filed with the Commission pursuant to Rule 424(b), in such form as such final prospectus is included in the Registration Statement, is herein referred to as the "Prospectus". Each preliminary form of prospectus is herein referred to as a "Preliminary Prospectus".
(b) The Commission has not issued any order preventing or suspending the use of the Registration Statement, the Prospectus or any Permitted Free Writing Preliminary Prospectus, and, to the knowledge of the Company, no proceeding for that purpose or pursuant to Section 8A of the Act against the Company or related to the offering has been initiated or threatened by the Commission; no notice of objection of the Commission to the use of such Registration Statement pursuant to Rule 401(g)(2) under the Act has been received by the Company; the Registration Statement complied when it initially became effective, complies as of the date hereof and, as then amended or supplemented, as of each other Representation Date will comply, in all material respects, with the requirements of the Act; the conditions to the use of Form S-3ASR in connection with the offering and sale of the Shares as contemplated hereby have been satisfied; the Registration Statement meets, and the offering and sale of the Shares as contemplated hereby complies with, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5)); the Prospectus complied or will comply, at the time it was or will be filed with the Commission, and will comply, as then amended or supplemented, as of each Representation Date (other than the date hereof), in all material respects, with the requirements of the Act; the Registration Statement did not, as of . At the time of its initial effectiveness, and does not or will not, as then amended or supplemented, as filing of each Representation DatePreliminary Prospectus, contain an such prospectus did not include any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading; . When the Registration Statement was or is declared effective and at all times subsequent thereto up to and at each Closing Date (hereinafter defined) (i) the Registration Statement contained or will contain as of each Representation Date (other than its date all material statements and information which are required to be included therein in accordance with the date hereof), Act and Rules and Regulations and will in all material respects conform to the Prospectus, as then amended or supplemented, together with all requirements of the then issued Permitted Free Writing ProspectusesAct and the Rules and Regulations, if any, and (ii) the Registration Statement did not or will not contain an include as of its date any untrue statement of a material fact or omit to state a any material fact necessary into make the statements therein not misleading. When the Prospectus or any amendment or supplement thereto is filed with the Commission pursuant to Rule 424(b) (or, if the Prospectus or such amendment or supplement is not required to be so filed, when the Registration Statement or the amendment thereto containing such amendment or supplement to the Prospectus was or is declared effective), on the date when the Prospectus is otherwise amended or supplemented and on each Closing Date (as hereinafter defined), the Prospectus, as amended or supplemented at any such time, (i) contained or will contain all statements required to be
Appears in 2 contracts
Samples: Underwriting Agreement (Anthra Pharmaceuticals Inc), Underwriting Agreement (Anthra Pharmaceuticals Inc)
Representations, Warranties and Agreements of the Company. Each of the The Company represents and the Operating Partnership, jointly and severally, represent and warrant warrants to, and agree agrees with, DBSJPMS, on and as of (i) the date hereof, (ii) each date on which the Company delivers accepts a Transaction Notice (the “Time of DeliveryAcceptance”) or executes and delivers a Terms Agreement, (iii) each Time of Sale (as defined below), (iv) each Settlement Date and (v) each Bring-Down Delivery Date (as defined in Section 6(b)) (each such date listed in (i) through (v), a “Representation Date”), as follows:
(a) There is no order preventing or suspending the use of the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus, and, to the knowledge of the Company, no proceeding for that purpose or pursuant to Section 8A of the Act against the Company or related to the offering has been initiated or threatened by the Commission; no notice of objection of the Commission to the use of such Registration Statement pursuant to Rule 401(g)(2) under the Act has been received by the Company; the Registration Statement complied when it initially became effective, complies as of the date hereof and, as then amended or supplemented, as of each other Representation Date will comply, in all material respects, with the requirements of the Act; the conditions to the use of Form S-3ASR S-3 in connection with the offering and sale of the Shares as contemplated hereby have been satisfied; the Registration Statement meets, and the offering and sale of the Shares as contemplated hereby complies with, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5)); the Prospectus complied or will comply, at the time it was or will be filed with the Commission, and will comply, as then amended or supplemented, as of each Representation Date (other than the date hereof), in all material respects, with the requirements of the Act; the Registration Statement did not, as of the time of its initial effectiveness, and does not or will not, as then amended or supplemented, as of each Representation Date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; as of each Representation Date (other than the date hereof), the Prospectus, as then amended or supplemented, together with all of the then issued Permitted Free Writing Prospectuses, if any, will not contain an untrue statement of a material fact or omit to state a material fact necessary inin 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 representation or warranty with respect to any statement or omission in the
Appears in 2 contracts
Samples: Distribution Agreement (Cathay General Bancorp), Distribution Agreement (Cathay General Bancorp)
Representations, Warranties and Agreements of the Company. Each The Company and each of the Company and the Operating Partnership, jointly and severally, Guarantors represent and warrant to, and agree with, DBS, the Initial Purchaser on and as of (i) the date hereof, (ii) each date on which hereof and the Company delivers a Transaction Notice (the “Time of Delivery”) or executes and delivers a Terms Agreement, (iii) each Time of Sale (as defined below), (iv) each Settlement Date and (v) each Bring-Down Delivery Closing Date (as defined in Section 6(b)3) (each such date listed in (i) through (v), a “Representation Date”), as followsthat:
(a) There is no order preventing or suspending the use Each of the Registration Statement, Preliminary Offering Memorandum and the Prospectus or any Permitted Free Writing Prospectus, and, to the knowledge of the Company, no proceeding for that purpose or pursuant to Section 8A of the Act against the Company or related to the offering has been initiated or threatened by the Commission; no notice of objection of the Commission to the use of such Registration Statement pursuant to Rule 401(g)(2) under the Act has been received by the Company; the Registration Statement complied when it initially became effective, complies as of the date hereof and, as then amended or supplementedOffering Memorandum, as of each other Representation Date will complyits respective date, in all material respects, with the requirements of the Act; the conditions to the use of Form S-3ASR in connection with the offering and sale of the Shares as contemplated hereby have been satisfied; the Registration Statement meets, and the offering and sale of the Shares as contemplated hereby complies with, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5)); the Prospectus complied or will comply, at the time it was or will be filed with the Commission, and will comply, as then amended or supplemented, as of each Representation Date (other than the date hereof), in all material respects, with the requirements of the Act; the Registration Statement did not, as of and on the time of its initial effectiveness, and does not or Closing Date the Offering Memorandum will not, as then amended or supplemented, as of each Representation Date, contain an 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 therein, in the light of the circumstances under which they were made, not misleading; PROVIDED that the Company and the Guarantors make no representation or warranty as to information contained in or omitted from the Preliminary Offering Memorandum or the Offering Memorandum in reliance upon and in conformity with written information relating to the Initial Purchaser furnished to the Company by or on behalf of the Initial Purchaser specifically for use therein (the "INITIAL PURCHASER'S INFORMATION").
(b) Each of the Preliminary Offering Memorandum and the Offering Memorandum, as of each Representation Date (other than the date hereof)its respective date, the Prospectus, as then amended or supplemented, together with contains all of the then issued Permitted Free Writing Prospectusesinformation that, if anyrequested by a prospective purchaser of the Securities, will would be required to be provided to such prospective purchaser pursuant to Rule 144A(d)(4) under the Securities Act.
(c) Assuming the accuracy of the representations and warranties of the Initial Purchaser contained in Section 2 and its compliance with the agreements set forth therein, it is not contain an untrue statement necessary, in connection with the issuance and sale of a material fact the Securities to the Initial Purchaser and the offer, resale and delivery of the Securities by the Initial Purchaser in the manner contemplated by this Agreement and the Offering Memorandum, to register the Securities under the Securities Act or omit to state a material fact necessary inqualify the Indenture under the Trust Indenture Act of 1939, as amended (the "TRUST INDENTURE ACT").
(d) The Company and each of its subsidiaries have been duly incorporated and are validly existing as corporations in good standing under the laws of their
Appears in 2 contracts
Samples: Purchase Agreement (American Media Operations Inc), Purchase Agreement (Marketing Services Inc)
Representations, Warranties and Agreements of the Company. Each of the The Company represents, warrants and the Operating Partnership, jointly and severally, represent and warrant to, and agree with, DBS, on and as of (i) the date hereof, (ii) each date on which the Company delivers a Transaction Notice (the “Time of Delivery”) or executes and delivers a Terms Agreement, (iii) each Time of Sale (as defined below), (iv) each Settlement Date and (v) each Bring-Down Delivery Date (as defined in Section 6(b)) (each such date listed in (i) through (v), a “Representation Date”), as followsagrees that:
(a) There is no order preventing or suspending the use of the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus, and, A registration statement on Form F-1 (File No. 333-[_____]) with respect to the knowledge of the Company, no proceeding for that purpose or pursuant to Section 8A of the Act against Shares has (i) been prepared by the Company or related to the offering has been initiated or threatened by the Commission; no notice of objection of the Commission to the use of such Registration Statement pursuant to Rule 401(g)(2) under the Act has been received by the Company; the Registration Statement complied when it initially became effective, complies as of the date hereof and, as then amended or supplemented, as of each other Representation Date will comply, in all material respects, conformity with the requirements of the Securities Act of 1933, as amended (the "SECURITIES ACT"), and the rules and regulations (the "RULES AND REGULATIONS") of the Securities and Exchange Commission (the "COMMISSION") thereunder, (ii) been filed with the Commission under the Securities Act and (iii) become effective under the Securities Act; the conditions . The registration statement contains a prospectus to the use of Form S-3ASR be used in connection with the offering and sale of the Shares as contemplated hereby Shares. Copies of such registration statement and each of the amendments thereto have been satisfied; delivered by the Registration Statement meetsCompany to you as the representatives (the "REPRESENTATIVES") of the Underwriters. As used in this Agreement, "EFFECTIVE TIME" means the date and the offering and sale of the Shares as contemplated hereby complies with, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5)); the Prospectus complied or will comply, at the time it was or will be filed with the Commission, and will comply, as then amended or supplemented, as of each Representation Date (other than which such registration statement, or the date hereof), in all material respects, with the requirements of the Act; the Registration Statement did not, as of the time of its initial effectiveness, and does not or will not, as then amended or supplemented, as of each Representation Date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; as of each Representation Date (other than the date hereof), the Prospectus, as then amended or supplemented, together with all of the then issued Permitted Free Writing Prospectusesmost recent post-effective amendment thereto, if any, will was declared effective by the Commission; "EFFECTIVE DATE" means the date of the Effective Time; "PRELIMINARY PROSPECTUS" means the prospectus included in such registration statement, or amendments thereof, before it became effective under the Securities Act and any prospectus filed with the Commission by the Company with the consent of the Representatives pursuant to Rule 424(a) of the Rules and Regulations, provided, however, that the term "Preliminary Prospectus" shall not contain include any prospectus submitted confidentially to (and not filed with) the Commission; "REGISTRATION STATEMENT" means such registration statement, as amended at the Effective Time, including all information contained in the final prospectus filed with the Commission pursuant to Rule 424(b) of the Rules and Regulations in accordance with Section 6(a) hereof and deemed to be a part of the registration statement as of the Effective Time pursuant to Rule 430A of the Rules and Regulations; and "PROSPECTUS" means the prospectus in the form first filed with the Commission pursuant to Rule 424(b) of the Rules and Regulations. If the Company has filed an untrue abbreviated registration statement to register additional Ordinary Shares pursuant to Rule 462(b) under the Securities Act (the "RULE 462 REGISTRATION STATEMENT"), then any reference herein to the term "REGISTRATION STATEMENT" shall be deemed to include such Rule 462 Registration Statement. Subject to compliance by the Underwriters with the provisions of the final paragraph of Section 4 of this Agreement, the Company is not required to publish a material fact or omit to state a material fact necessary inprospectus in Israel under the laws of the State of Israel.
Appears in 2 contracts
Samples: Underwriting Agreement (Given Imaging LTD), Underwriting Agreement (Given Imaging LTD)
Representations, Warranties and Agreements of the Company. Each of the The Company represents and the Operating Partnership, jointly and severally, represent and warrant warrants to, and agree agrees with, DBS, the Agents on and as of (i) the date hereof, (ii) each date on which the Company delivers receives a Transaction Notice Acceptance (the “Time of DeliveryAcceptance”), (iii) or each date on which the Company executes and delivers a Terms Agreement, (iiiiv) each Time of Sale (as defined belowin Section 3(a)), (ivv) each Settlement Date and (vvi) each Bring-Down Delivery Date (as defined in Section 6(b)) (each such date listed in (i) through (vvi), a “Representation Date”), as follows:
(a) There The Registration Statement is an “automatic shelf registration statement” as defined under Rule 405 of the Securities Act that has been filed with the Commission not earlier than three years prior to the date hereof; there is no order preventing or suspending the use of the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus, and, to the knowledge of the Company, no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering has been initiated or threatened by the Commission; no notice of objection of the Commission to the use of such Registration Statement pursuant to Rule 401(g)(2) under the Securities Act has been received by the Company; the Registration Statement complied when it initially became effective, complies as of the date hereof and, as then amended or supplemented, as of each other Representation Date will comply, in all material respects, with the requirements of the Securities Act; the conditions to the use of Form S-3ASR S-3 in connection with the offering and sale of the Shares as contemplated hereby have been satisfied; the Registration Statement meets, and the offering and sale of the Shares as contemplated hereby complies comply with, the requirements of Rule 415 under the Securities Act (including, without limitation, Rule 415(a)(5)); the Prospectus complied or will comply, at the time it was or will be filed with the Commission, and will comply, as then amended or supplemented, as of each Representation Date (other than the date hereof), in all material respects, with the requirements of the Act; the Registration Statement did not, as of the time of its initial effectiveness, and does not or will not, as then amended or supplemented, as of each Representation Date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; as of each Representation Date (other than the date hereof), the Prospectus, as then amended or supplemented, together with all of the then issued Permitted Free Writing Prospectuses, if any, will not contain an untrue statement of a material fact or omit to state a material fact necessary inthe
Appears in 2 contracts
Samples: Distribution Agreement (Iron Mountain Inc), Distribution Agreement (Iron Mountain Inc)
Representations, Warranties and Agreements of the Company. Each of the The Company represents and the Operating Partnership, jointly warrants to and severally, represent and warrant to, and agree with, DBS, on and as of (i) the date hereof, (ii) agrees with each date on which the Company delivers a Transaction Notice (the “Time of Delivery”) or executes and delivers a Terms Agreement, (iii) each Time of Sale (as defined below), (iv) each Settlement Date and (v) each Bring-Down Delivery Date (as defined in Section 6(b)) (each such date listed in (i) through (v), a “Representation Date”), as followsUnderwriter that:
(a) There A registration statement on Form S-1 (File No. 333-47725) with respect to the Shares, including a preliminary 3 form of prospectus, copies of which have heretofore been delivered to you, has been prepared by the Company in conformity with the requirements of the Securities Act of 1933, as amended (the "Act"), and the rules and regulations (the "Rules and Regulations") of the Securities and Exchange Commission (the "Commission") under the Act, and has been filed with the Commission under the Act; such amendment or amendments to such registration statement, copies of which have heretofore been delivered to you, as may have been made prior to the date of this Agreement have been so prepared and filed; and the Company has so prepared and proposes so to file in a timely manner after the effective date of such registration statement the final form of prospectus. Such registration statement (including all exhibits thereto), as finally amended and revised as of the time the Underwriters first offer the Shares for sale to the public together with information, if any, which is permitted to be, and is, subsequently filed pursuant to Rule 430A of the Rules and Regulations, is herein referred to as the "Registration Statement". Such prospectus in the form filed pursuant to Rule 424(b) of the Rules and Regulations, or, if no final prospectus is filed with the Commission pursuant to Rule 424(b), in such form as such final prospectus is included in the Registration Statement, is herein referred to as the "Prospectus". Each preliminary form of prospectus is herein referred to as a "Preliminary Prospectus".
(b) The Commission has not issued any order preventing or suspending the use of the Registration Statement, the Prospectus or any Permitted Free Writing Preliminary Prospectus, and, to the knowledge of the Company, no proceeding for that purpose or pursuant to Section 8A of the Act against the Company or related to the offering has been initiated or threatened by the Commission; no notice of objection of the Commission to the use of such Registration Statement pursuant to Rule 401(g)(2) under the Act has been received by the Company; the Registration Statement complied when it initially became effective, complies as of the date hereof and, as then amended or supplemented, as of each other Representation Date will comply, in all material respects, with the requirements of the Act; the conditions to the use of Form S-3ASR in connection with the offering and sale of the Shares as contemplated hereby have been satisfied; the Registration Statement meets, and the offering and sale of the Shares as contemplated hereby complies with, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5)); the Prospectus complied or will comply, at the time it was or will be filed with the Commission, and will comply, as then amended or supplemented, as of each Representation Date (other than the date hereof), in all material respects, with the requirements of the Act; the Registration Statement did not, as of . At the time of its initial effectiveness, and does not or will not, as then amended or supplemented, as filing of each Representation DatePreliminary Prospectus, contain an such prospectus did not include any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading; . When the Registration Statement was or is declared effective and at all times subsequent thereto up to and at each Closing Date (hereinafter defined) (i) the Registration Statement contained or will contain as of each Representation Date (other than its date all material statements and information which are required to be included therein in accordance with the date hereof), Act and Rules and Regulations and will in all material respects conform to the Prospectus, as then amended or supplemented, together with all requirements of the then issued Permitted Free Writing ProspectusesAct and the Rules and Regulations, if any, and (ii) the Registration Statement did not or will not contain an include as of its date any untrue statement of a material fact or omit to state a any material fact necessary into make the statements therein not misleading. When the Prospectus or any amendment or supplement thereto is filed with the Commission pursuant to Rule 424(b) (or, if the Prospectus or such amendment or supplement is not required to be so filed, when the Registration Statement or the amendment thereto containing such amendment or supplement to the Prospectus was or is declared effective), on the date when the Prospectus is otherwise amended or supplemented and on each Closing Date (as hereinafter defined), the Prospectus, as amended or supplemented at any such time, (i) contained or will contain all statements required to be
Appears in 2 contracts
Samples: Underwriting Agreement (Anthra Pharmaceuticals Inc), Underwriting Agreement (Anthra Pharmaceuticals Inc)
Representations, Warranties and Agreements of the Company. Each of the The Company represents and the Operating Partnership, jointly and severally, represent and warrant warrants to, and agree agrees with, DBS, on and each of the Underwriters as of (i) the date hereof, (ii) each date on which and as of the Company delivers a Transaction Notice (the “Time of Delivery”) or executes and delivers a Terms Agreement, (iii) each Time of Sale (as defined below), (iv) each Settlement Date and (v) each Bring-Down Delivery First Closing Date (as defined in Section 6(b)3(a) below) and the Option Closing Date (each such date listed as defined in (iSection 3(b) through (vbelow), a “Representation Date”)if any, as follows:
(a) There is no The Company has filed with the Securities and Exchange Commission (the "Commission") a registration statement, and an amendment or amendments thereto, on Form S-1 (File No. 333-86332) including any related preliminary prospectus (the "Preliminary Prospectus") for the registration of the Securities under the Securities Act of 1933, as amended (the "Securities Act"), which registration statement and amendment or amendments thereto have been prepared by the Company in conformity with the requirements of the Securities Act and the rules and regulations (the "Rules and Regulations") of the Commission under the Securities Act. Copies of such registration statement and each of the amendments thereto have been delivered by the Company to the Underwriters. As used in this Agreement, "Effective Time" means the date and the time as of which such registration statement, or the most recent post-effective amendment thereto, if any, was declared effective by the Commission; "Effective Date" means the date of the Effective Time; "Preliminary Prospectus" means each prospectus included in such registration statement, or amendments thereof, before it became effective under the Securities Act and any prospectus filed with the Commission by the Company with the consent of the Underwriters pursuant to Rule 424(a) of the Rules and Regulations; "Registration Statement" means such registration statement, as amended at the Effective Time, including all information contained in the Prospectus filed with the Commission pursuant to Rule 424(b) of the Rules and Regulations and deemed to be a part of the Registration Statement as of the Effective Time pursuant to Rule 430A of the Rules and Regulations; and "Prospectus" means the prospectus in the form first used to confirm sales of Shares. If the Company has filed an abbreviated registration statement to register additional shares of Common Stock pursuant to Rule 462(b) under the Securities Act (the "Rule 462 Registration Statement"), then any reference herein to the term "Registration Statement" shall be deemed to include such Rule 462 Registration Statement. Neither the Commission nor any state regulatory authority has issued any order preventing or suspending the use of any Preliminary Prospectus or the Registration Statement, the Prospectus Statement or any Permitted Free Writing Prospectus, and, to part of any thereof and no proceedings for a stop order suspending the knowledge effectiveness of the Registration Statement or any of the Company, no proceeding for that purpose 's securities have been instituted or pursuant to Section 8A of the Act against the Company are pending or related to the offering has been initiated or threatened by the Commission; no notice of objection of the Commission to the use of such Registration Statement pursuant to Rule 401(g)(2) under the Act has been received by the Company; the Registration Statement complied when it initially became effective's knowledge, complies as of the date hereof and, as then amended or supplemented, as of each other Representation Date will comply, in all material respects, with the requirements of the Act; the conditions to the use of Form S-3ASR in connection with the offering and sale of the Shares as contemplated hereby have been satisfied; the Registration Statement meets, and the offering and sale of the Shares as contemplated hereby complies with, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5)); the Prospectus complied or will comply, at the time it was or will be filed with the Commission, and will comply, as then amended or supplemented, as of each Representation Date (other than the date hereof), in all material respects, with the requirements of the Act; the Registration Statement did not, as of the time of its initial effectiveness, and does not or will not, as then amended or supplemented, as of each Representation Date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; as of each Representation Date (other than the date hereof), the Prospectus, as then amended or supplemented, together with all of the then issued Permitted Free Writing Prospectuses, if any, will not contain an untrue statement of a material fact or omit to state a material fact necessary inthreatened.
Appears in 2 contracts
Samples: Underwriting Agreement (Bakers Footwear Group Inc), Underwriting Agreement (Bakers Footwear Group Inc)
Representations, Warranties and Agreements of the Company. Each of the The Company represents and the Operating Partnership, jointly and severally, represent and warrant warrants to, and agree agrees with, DBSDBSI, on and as of (i) the date hereof, (ii) each date on which the Company delivers accepts a Transaction Notice (the “Time of DeliveryAcceptance”) or executes and delivers a Terms Agreement, (iii) each Time of Sale (as defined below), (iv) each Settlement Date and (v) each Bring-Down Delivery Date (as defined in Section 6(b)) (each such date listed in (i) through (v), a “Representation Date”), as follows:
(a) There is no order preventing or suspending the use of the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus, and, to the knowledge of the Company, no proceeding for that purpose or pursuant to Section 8A of the Act against the Company or related to the offering has been initiated or threatened by the Commission; no notice of objection of the Commission to the use of such Registration Statement pursuant to Rule 401(g)(2) under the Act has been received by the Company; the Registration Statement complied when it initially became effective, complies as of the date hereof and, as then amended or supplemented, as of each other Representation Date will comply, in all material respects, with the requirements of the Act; the conditions to the use of Form S-3ASR S-3 in connection with the offering and sale of the Shares as contemplated hereby have been satisfied; the Registration Statement meets, and the offering and sale of the Shares as contemplated hereby complies with, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5)); the Prospectus complied or will comply, at the time it was or will be filed with the Commission, and will comply, as then amended or supplemented, as of each Representation Date (other than the date hereof), in all material respects, with the requirements of the Act; the Registration Statement did not, as of the time of its initial effectiveness, and does not or will not, as then amended or supplemented, as of each Representation Date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; as of each Representation Date (other than the date hereof), the Prospectus, as then amended or supplemented, together with all of the then issued Permitted Free Writing Prospectuses, if any, will not contain an untrue statement of a material fact or omit to state a material fact necessary inin 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 representation or warranty with respect to any statement or omission in the
Appears in 2 contracts
Samples: Distribution Agreement (Cathay General Bancorp), Distribution Agreement (Cathay General Bancorp)
Representations, Warranties and Agreements of the Company. Each of the The Company represents and the Operating Partnership, jointly and severally, represent and warrant warrants to, and agree agrees with, DBSthe Underwriter and the Selling Stockholder, on and as of (i) the date hereofTime of Sale, (ii) each date on which the Company delivers a Transaction Notice (the “Time of Delivery”) or executes Closing Date and delivers a Terms Agreement, (iii) each Time of Sale (Additional Closing Date, as defined below), (iv) each Settlement Date and (v) each Bring-Down Delivery Date (as defined in Section 6(b)) applicable (each such date listed in (i) through (viii), a “Representation Date”), as follows:
(a) There No order preventing or suspending the use of any Preliminary Prospectus has been issued by the Commission, and each Preliminary Prospectus included in the Pricing Disclosure Package, at the time of filing thereof, complied in all material respects with the Securities Act, and no Preliminary Prospectus, at the time of filing thereof, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company makes no representation and warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to the Underwriter furnished to the Company in writing by the Underwriter expressly for use in any Preliminary Prospectus, it being understood and agreed that the only such information furnished by the Underwriter consists of the information described as such in Section 10(c) hereof. The Pricing Disclosure Package as of the Time of Sale did not, and as of the Closing Date and, if applicable, as of any Additional Closing Date, as the case may be, 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 that the Company makes no representation and warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to the Underwriter furnished to the Company in writing by the Underwriter expressly for use in such Pricing Disclosure Package, it being understood and agreed that the only such information furnished by the Underwriter consists of the information described as such in Section 10(c) hereof. The Registration Statement is an “automatic shelf registration statement” as defined under Rule 405 of the Securities Act that has been filed with the Commission not earlier than three years prior to the date hereof; there is no order preventing or suspending the use of the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus, and, to the knowledge of the Company, no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering has been initiated or threatened by the Commission; no notice of objection of the Commission to the use of such Registration Statement pursuant to Rule 401(g)(2) under the Securities Act has been received by the Company; the Registration Statement complied when it initially became effective, complies as of the date hereof and, as then amended or supplemented, as of each other Representation Date will comply, in all material respects, with the requirements of the Securities Act; the conditions to the use of Form S-3ASR S-3 in connection with the offering and sale of the Shares as contemplated hereby have been satisfied; the Registration Statement meets, and the offering and sale of the Shares as contemplated hereby complies with, the requirements of Rule 415 under the Securities Act (including, without limitation, Rule 415(a)(5)); the Prospectus complied or will comply, at the time it was or will be filed with the Commission, and will comply, as then amended or supplemented, as of each Representation Date (other than the date hereof), in all material respects, with the requirements of the Securities Act; the Registration Statement did not, as of the time of its initial effectiveness, and does not or will not, as then amended or supplemented, as of each Representation Date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; as of each Representation Date (other than the date hereof), the Prospectus, as then amended or supplemented, together with all of the then issued Permitted Free Writing Prospectuses, if any, will not contain an untrue statement of a material fact or omit to state a material fact necessary inin 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 representation or warranty with respect to any statement or omission in the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus in reliance upon and in conformity with information concerning the Underwriter and furnished in writing by or on behalf of the Underwriter expressly for use in the Registration Statement, the Prospectus or such Permitted Free Writing Prospectus (it being understood that such information consists solely of the information specified in Section 10(c)).
(b) Prior to the execution of this Agreement, the Company has not, directly or indirectly, offered or sold any of the Shares by means of any “prospectus” (within the meaning of the Securities Act) or used any “prospectus” (within the meaning of the Securities Act) in connection with the offer or sale of the Shares, in each case other than the Basic Prospectus and the Preliminary Prospectus. The Company represents and agrees that, unless it obtains the prior consent of the Underwriter, it has not made and will not make any offer relating to the Shares that would constitute an “issuer free writing prospectus” (as defined in Rule 433 under the Securities Act) or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under the Securities Act). Any such free writing prospectus relating to the Shares consented to by the Underwriter is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has complied and will comply in all material respects with the requirements of Rule 433 under the Securities Act applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The conditions set forth in one or more of subclauses (i) through (iv), inclusive, of Rule 433(b)(1) under the Securities Act are satisfied, and the registration statement relating to the offering of the Shares contemplated hereby, as initially filed with the Commission, includes a prospectus that, other than by reason of Rule 433 or Rule 431 under the Securities Act, satisfies the requirements of Section 10 of the Securities Act; neither the Company nor the Underwriter is disqualified, by reason of Rule 164(f) or (g) under the Securities Act, from using, in connection with the offer and sale of the Shares, “free writing prospectuses” (as defined in Rule 405 under the Securities Act) pursuant to Rules 164 and 433 under the Securities Act; the Company is not an “ineligible issuer” (as defined in Rule 405 under the Securities Act) as of the eligibility determination date for purposes of Rules 164 and 433 under the Securities Act with respect to the offering of the Shares contemplated by the Registration Statement.
(c) The Incorporated Documents, when they were filed with the Commission, conformed in all material respects to the requirements of the Securities Act or the Exchange Act, as applicable, 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, in light of the circumstances under which they were made, not misleading; and any further documents so filed and incorporated by reference in the Registration Statement, the Pricing Disclosure Package, the Prospectus or any Permitted Free Writing Prospectus, when such documents become effective or are filed with the Commission, as the case may be, will conform in all material respects to the requirements of the Securities Act or the Exchange Act, as applicable, and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(d) The financial statements and the related notes thereto included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package, the Prospectus and any Permitted Free Writing Prospectus comply in all material respects with the applicable requirements of the Securities Act and the Exchange Act, as applicable, and present fairly the financial position of the Company and its consolidated subsidiaries at the dates indicated and their results of operations, stockholders’ equity and cash flows for the periods specified, and such financial statements have been prepared in conformity with the generally accepted accounting principles in the United States (“GAAP”) applied on a consistent basis throughout the periods involved. The other historical financial and statistical information and data included in the Registration Statement, the Pricing Disclosure Package, Prospectus or any Permitted Free Writing Prospectus are, in all material respects, fairly presented.
(e) Except in each case as otherwise disclosed in the Registration Statement, the Pricing Disclosure Package, the Prospectus and any Permitted Free Writing Prospectus, since the date of the most recent financial statements of the Company included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package, the Prospectus and any Permitted Free Writing Prospectus, (i) there has not been any material change in the capital stock or long-term debt of the Company or any of its subsidiaries and there has not been a Material Adverse Effect (as defined below), (ii) neither the Company nor any of its subsidiaries has entered into any transaction or agreement that is material to the Company and its subsidiaries, taken as a whole, or incurred any liability or obligation, direct or contingent, except for such liabilities or obligations that, individually or in the aggregate, would not have a Material Adverse Effect and (iii) neither the Company nor any of its subsidiaries has sustained any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor disturbance or dispute or any action, order or decree of any court or arbitrator or governmental or regulatory authority, except for such losses that, individually or in the aggregate, would not have a Material Adverse Effect. As used herein, “Material Adverse Effect” means a material adverse effect on the earnings, business, properties, condition (financial or otherwise), results of operations or prospects of the Company and its subsidiaries taken as a whole.
Appears in 2 contracts
Samples: Underwriting Agreement (Citadel L P), Underwriting Agreement (E Trade Financial Corp)
Representations, Warranties and Agreements of the Company. Each of The Company represents and warrants to and agrees with the Company and the Operating Partnership, jointly and severally, represent and warrant to, and agree with, DBS, on and as of (i) the date hereof, (ii) each date on which the Company delivers a Transaction Notice (the “Time of Delivery”) or executes and delivers a Terms Agreement, (iii) each Time of Sale (as defined below), (iv) each Settlement Date and (v) each Bring-Down Delivery Date (as defined in Section 6(b)) (each such date listed in (i) through (v), a “Representation Date”), Underwriter as follows, which representations and warranties shall be deemed to be made continuously throughout the term of this Agreement:
(a) There is no The Registration Statement on Form S-11 (File N 333-154831) with respect to the Certificates, including the Prospectus subject to completion, has been prepared by the Company in conformity with the requirements of the Securities Act, and the Rules and Regulations of the Commission thereunder and has been filed with the Commission under the Securities Act.
(b) As of the Effective Date, and at all times subsequent thereto until the termination of the Offering, the Registration Statement and Prospectus, and all amendments thereof and supplements thereto, will comply or complied with the provisions and requirements of the Securities Act and the Rules and Regulations. Neither the Commission nor any state securities authority has issued any order preventing or suspending the use of any Preliminary Prospectus or requiring the recirculation of a Preliminary Prospectus, or issued a stop order with respect to the offering of the Certificates (if the Registration StatementStatement has been declared effective), the Prospectus or any Permitted Free Writing Prospectus, andinstituted or, to the knowledge of Company's knowledge, threatened the Companyinstitution of, no proceeding proceedings for that purpose or pursuant to Section 8A of the Act against the Company or related to the offering has been initiated or threatened by the Commission; no notice of objection of the Commission to the use any of such Registration Statement pursuant to Rule 401(g)(2) under the Act has been received by the Company; purposes. When the Registration Statement complied shall become effective and when it initially became any post-effective amendment thereto shall become effective, complies as of the date hereof and, as then amended or supplemented, as of each other Representation Date will comply, in all material respects, with the requirements of the Act; the conditions to the use of Form S-3ASR in connection with the offering and sale of the Shares as contemplated hereby have been satisfied; the Registration Statement meets, and the offering and sale of the Shares as contemplated hereby complies with, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5)); the Prospectus complied or will comply, at the time it was or will be filed with the Commission, and will comply, as then amended or supplemented, as of each Representation Date (other than the date hereof), in all material respects, with the requirements of the Act; the Registration Statement did not, as of the time of its initial effectiveness, and does not or will not, as then amended or supplemented, as of each Representation Date, did not contain an any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances in which they were made, not misleading; as . When the Registration Statement is or was declared effective by the Commission and at all times subsequent thereto until the termination of each Representation Date (other than the date hereof)offering, the Prospectus, Prospectus (as then amended or supplemented, together if the Company shall have filed with all of the then issued Permitted Free Writing Prospectuses, if any, Commission any amendment thereof or supplement thereto) will not or did not contain an any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary inin order to make the statements therein, in light of the circumstances in which they were made, not misleading.
(c) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Minnesota, with full power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement and Prospectus. The Company is duly qualified to do business and is in good standing in each jurisdiction in which the ownership or lease of its properties or the conduct of its business requires such qualification and in which the failure to be qualified or in good standing would have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company, and no proceeding has been instituted in any such jurisdiction revoking, limiting or curtailing, or seeking to revoke, limit or curtail, such power and authority or qualification.
(d) The Company has operated and is operating in material compliance with all authorizations, licenses, certificates, consents, permits, approvals and orders of and from all state, federal and other governmental regulatory officials and bodies necessary to own its properties and to conduct its business as described in the Registration Statement and Prospectus, all of which are, to the Company's knowledge, valid and in full force and effect. The Company is conducting its business in substantial compliance with all applicable laws, rules and regulations of the jurisdictions in which it is conducting business, and the Company is not in material violation of any applicable law, order, rule, regulation, writ, injunction, judgment or decree of any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its properties.
(e) The Company is not in violation of its articles of incorporation or bylaws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any bond, debenture, note or other evidence of indebtedness or in any contract, lease, indenture, mortgage, loan agreement, joint venture or other agreement or instrument to which it is a party or by which it or its properties are bound.
(f) The Company has full requisite power and authority to enter into this Agreement and perform the transactions contemplated hereby. This Agreement has been duly authorized, executed and delivered by the Company and is a valid and binding agreement on the part of the Company, enforceable against the Company in accordance with its terms. The performance of this Agreement and the consummation of the transactions herein contemplated will not result in a breach or violation of any of the terms and provisions of, or constitute a default under:
(i) any indenture, mortgage, deed of trust loan agreement, bond, debenture, note, agreement or other evidence of indebtedness, any lease, contract, joint venture or other agreement or instrument to which the Company is a party or by which the Company or its properties may be bound;
(ii) the articles of incorporation or bylaws of the Company: or
(iii) any applicable law, order, rule, regulation, writ, injunction, judgment or decree of any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its properties.
(g) No consent, approval, authorization or order of or qualification with any court, governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its properties is required for the execution and delivery of this Agreement and the consummation by the Company of the transactions herein contemplated, except such as may be required under the Securities Act, the Exchange Act, or under state or other securities or Blue Sky laws, all of which requirements have been satisfied.
(h) Except as is otherwise expressly described in the Registration Statement or Prospectus, there is neither pending nor, to the best of the Company's knowledge, threatened, any action, suit, claim or proceeding against the Company or any of its officers or any of its properties, assets or rights before any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its officers or properties or otherwise which (A) might result in any material adverse change in the condition (financial or otherwise), earnings, operations or business of the Company or might materially and adversely affect its properties, assets or rights, or (B) might prevent consummation of the transactions contemplated hereby.
(i) The Certificates to be sold hereunder by the Company have been duly authorized for issuance and sale pursuant to this Agreement and, when issued and delivered against payment therefor in accordance with the terms of this Agreement, will be duly and validly issued and fully paid and non-assessable and will be sold free and clear of any pledge, lien, security interest, encumbrance, claim or equitable interest; and no preemptive right, co-sale right, registration right, right of first refusal or other similar right exists with respect to any of the Certificates to be sold hereunder by the Company or the issuance and sale thereof. The Indenture has been duly authorized, executed and delivered by the Company and the Trustee and is a valid and binding agreement on the part of the Company, enforceable against the Company in accordance with its terms. The Certificates will comply as to form with all applicable laws.
(j) Boulay, Heutmaker, Xxxxxx and Company, P.L.L.P. which has expressed its opinion with respect to certain of the financial statements included as a part (whether filed or incorporated by reference) of the Registration Statement, is an independent registered public accounting firm within the meaning of the Securities Act, the Public Company Accounting Oversight Board (PCAOB), and the Rules and Regulations. The financial statements of the Company set forth in the Registration Statement and Prospectus (or incorporated therein by reference) comply in all material respects with the requirements of the Securities Act and fairly present the financial position and the results of operations of the Company at the respective dates and for the respective periods to which they apply in accordance with generally accepted accounting principles consistently applied throughout the periods involved; and the supporting schedules included in the Registration Statement present fairly the information required to be stated therein. The selected and summary financial included in the Registration Statement (or incorporated therein by reference) present fairly the information shown therein and have been compiled on a basis consistent with the audited financial statements presented therein. No other financial statements or schedules are required by the Securities Act or the Rules and Regulations to be included in the Registration Statement.
(k) Subsequent to the respective dates as of which information is given in the Registration Statement and Prospectus, except as is otherwise disclosed in the Registration Statement or Prospectus, there has not been:
(i) any change in the capital stock or long term debt (including any capitalized lease obligation) or material increase in the short-term debt of the Company;
(ii) any material adverse change, or any development involving a material adverse change, in or affecting the condition (financial or otherwise), earnings, operations, business or business prospects, management, financial position, shareholders' equity, results of operations or general condition of the Company;
(iii) any transaction entered into by the Company that is material to the Company;
(iv) any obligation, direct or contingent, incurred by the Company, except obligations incurred in the ordinary course of business that, in the aggregate, are not material; or
(v) any loss or damage (whether or not insured) to the property of the Company which reasonably could be expected to have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company.
(l) Except as is otherwise expressly disclosed in the Registration Statement or Prospectus:
(i) the Company has good and marketable title to all of the property, real and personal, and assets described in the Registration Statement or Prospectus as being owned by it, free and clear of any and all pledges, liens, security interests, encumbrances, equities, charges or claims, other than such as would not have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company;
(ii) the agreements to which the Company is a party described in the Registration Statement and Prospectus are valid agreements, enforceable by the Company except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors' rights generally or by judicial limitations on the right of specific performance; and
(iii) the Company has valid and enforceable leases for all properties described in the Registration Statement and Prospectus as leased by it, except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors' rights generally or by judicial limitations on the right of specific
Appears in 2 contracts
Samples: Distribution Agreement (American Church Mortgage Co), Distribution Agreement (American Church Mortgage Co)
Representations, Warranties and Agreements of the Company. Each of the The Company represents, warrants and the Operating Partnership, jointly and severally, represent and warrant to, and agree with, DBS, on and as of (i) the date hereof, (ii) each date on which the Company delivers a Transaction Notice (the “Time of Delivery”) or executes and delivers a Terms Agreement, (iii) each Time of Sale (as defined below), (iv) each Settlement Date and (v) each Bring-Down Delivery Date (as defined in Section 6(b)) (each such date listed in (i) through (v), a “Representation Date”), as followsagrees that:
(a) There is no A registration statement on Form S-1, and amendments thereto, with respect to the Stock have (i) been prepared by the Company in conformity with the requirements of the United States Securities Act of 1933 (the "Securities Act") and the rules and regulations (the "Rule and Regulations") of the United States Securities and Exchange Commission (the "Commission") gthereunder, (ii) been filed with the Commission under the Securities Act and (iii) become effective under the Securities Act. Copies of such registration statement and the amendments thereto have been delivered by the Company to you as the representatives (the "Representatives") of the Underwriters. As used in this Agreement, "Effective Time" means the date and the time as of which such registration statement, or the most recent post-effective amendment thereto, if any, was declared effective by the Commission; "Effective Date" means the date of the Effective Time; "Preliminary Prospectus" means each prospectus included in such registration statement, or amendments thereof, before it became effective under the Securities Act and any prospectus filed with the Commission by the Company with the consent of the Representatives pursuant to Rule 424(a) of the Rules and Regulations; "Registration Statement" means such registration statement, as amended at the Effective Time, including all information contained in the final prospectus filed with the Commission pursuant to Rule 424(b) of the Rules and Regulations in accordance with Section 6(a) hereof and deemed to be a part of the registration statement as of the Effective Time pursuant to paragraph (b) of Rule 430A of the Rules and Regulations; and "Prospectus" means such final prospectus, as first filed with the Commission pursuant to paragraph (1) or (4) of Rule 424(b) of the Rules and Regulations. The Commission has not issued any order preventing or suspending the use of the Registration Statement, the Prospectus or any Permitted Free Writing Preliminary Prospectus, and, to the knowledge of the Company, no proceeding for that purpose or pursuant to Section 8A of the Act against the Company or related to the offering has been initiated or threatened by the Commission; no notice of objection of the Commission to the use of such Registration Statement pursuant to Rule 401(g)(2) under the Act has been received by the Company; the Registration Statement complied when it initially became effective, complies as of the date hereof and, as then amended or supplemented, as of each other Representation Date will comply, in all material respects, with the requirements of the Act; the conditions to the use of Form S-3ASR in connection with the offering and sale of the Shares as contemplated hereby have been satisfied; the Registration Statement meets, and the offering and sale of the Shares as contemplated hereby complies with, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5)); the Prospectus complied or will comply, at the time it was or will be filed with the Commission, and will comply, as then amended or supplemented, as of each Representation Date (other than the date hereof), in all material respects, with the requirements of the Act; the Registration Statement did not, as of the time of its initial effectiveness, and does not or will not, as then amended or supplemented, as of each Representation Date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; as of each Representation Date (other than the date hereof), the Prospectus, as then amended or supplemented, together with all of the then issued Permitted Free Writing Prospectuses, if any, will not contain an untrue statement of a material fact or omit to state a material fact necessary in.
Appears in 2 contracts
Samples: Underwriting Agreement (U S Interactive Inc/Pa), Underwriting Agreement (U S Interactive Inc/Pa)
Representations, Warranties and Agreements of the Company. Each of The Company represents, warrants and agrees that: 2
(a) A registration statement on Form S-1 with respect to the Company and the Operating Partnership, jointly and severally, represent and warrant to, and agree with, DBS, on and as of Stock has (i) been prepared by the date hereofCompany in conformity with the requirements of the Securities Act of 1933, as amended (the "Securities Act"), and the rules and regulations (the "Rules and Regulations") of the Securities and Exchange Commission (the "Commission") thereunder, (ii) each date on which been filed with the Company delivers a Transaction Notice (Commission under the “Time of Delivery”) or executes Securities Act, and delivers a Terms Agreement, (iii) become effective under the Securities Act (other than any Rule 462 Registration Statement to be filed after the execution of this Agreement which will become effective no later than the day after the execution of this Agreement). Copies of such registration statement and each of the amendments thereto have been delivered by the Company to you. As used in this Agreement, "Effective Time" means the date and the time as of which such registration statement, or the most recent post-effective amendment thereto, if any, was declared effective by the Commission; "Effective Date" means the date of the Effective Time; "Preliminary Prospectus" means each prospectus included in such registration statement, or amendments thereof, before it became effective under the Securities Act and any prospectus filed with the Commission by the Company with the consent of the Representatives pursuant to Rule 424(a) of the Rules and Regulations; "Registration Statement" means such registration statement, including all material incorporated by reference therein, as amended at the Effective Time, including all information contained in the final prospectus filed with the Commission pursuant to Rule 424(b) of the Rules and Regulations and deemed to be a part of the registration statement as of the Effective Time pursuant to Rule 430A of Sale the Rules and Regulations; and "Prospectus" means the prospectus in the form first used to confirm sales of Stock. If the Company has filed an abbreviated registration statement to register additional shares of Common Stock pursuant to Rule 462(b) under the Securities Act (as defined belowthe "Rule 462 Registration Statement"), (iv) each Settlement Date and (v) each Bring-Down Delivery Date (as defined in Section 6(b)) (each then any reference herein to the term "Registration Statement" shall be deemed to include such date listed in (i) through (v), a “Representation Date”), as follows:
(a) There is no Rule 462 Registration Statement. The Commission has not issued any order preventing or suspending the use of the Registration Statement, the Prospectus or any Permitted Free Writing Preliminary Prospectus, and, to the knowledge of the Company, no proceeding for that purpose or pursuant to Section 8A of the Act against the Company or related to the offering has been initiated or threatened by the Commission; no notice of objection of the Commission to the use of such Registration Statement pursuant to Rule 401(g)(2) under the Act has been received by the Company; the Registration Statement complied when it initially became effective, complies as of the date hereof and, as then amended or supplemented, as of each other Representation Date will comply, in all material respects, with the requirements of the Act; the conditions to the use of Form S-3ASR in connection with the offering and sale of the Shares as contemplated hereby have been satisfied; the Registration Statement meets, and the offering and sale of the Shares as contemplated hereby complies with, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5)); the Prospectus complied or will comply, at the time it was or will be filed with the Commission, and will comply, as then amended or supplemented, as of each Representation Date (other than the date hereof), in all material respects, with the requirements of the Act; the Registration Statement did not, as of the time of its initial effectiveness, and does not or will not, as then amended or supplemented, as of each Representation Date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; as of each Representation Date (other than the date hereof), the Prospectus, as then amended or supplemented, together with all of the then issued Permitted Free Writing Prospectuses, if any, will not contain an untrue statement of a material fact or omit to state a material fact necessary in.
Appears in 2 contracts
Samples: Underwriting Agreement (Spanish Broadcasting System Inc), Underwriting Agreement (Spanish Broadcasting System Inc)
Representations, Warranties and Agreements of the Company. Each of the The Company represents and the Operating Partnership, jointly and severally, represent and warrant warrants to, and agree agrees with, DBSeach Agent, on and as of (i) the date hereof, (ii) each date on which the Company delivers receives a Transaction Notice Acceptance (the “Time of DeliveryAcceptance”), (iii) or each date on which the Company executes and delivers a Terms Agreement, (iiiiv) each Time of Sale (as defined belowin Section 3(a)), (ivv) each Settlement Date Date, and (vvi) each Bring-Down Delivery Date (as defined in Section 6(b)) (each such date listed in (i) through (vvi), a “Representation Date”), as follows:
(a) The Registration Statement has been declared effective by the Commission. There is no order preventing or suspending the use of the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus, and, to the knowledge of the Company, no proceeding for that purpose or pursuant to Section 8A of the Act against the Company or related to the offering has been initiated or threatened by the Commission; no notice of objection of the Commission to the use of such Registration Statement pursuant to Rule 401(g)(2) under the Act has been received by the Company; the Registration Statement complied when it initially became effective, complies as of the date hereof and, as then amended or supplemented, as of each other Representation Date will comply, in all material respects, with the requirements of the Act; the conditions to the use of Form S-3ASR S-3 in connection with the offering and sale of the Shares as contemplated hereby have been satisfied; the Registration Statement meets, and the offering and sale of the Shares as contemplated hereby complies with, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5)); the Prospectus complied or will comply, at the time it was or will be filed with the Commission, and will comply, as then amended or supplemented, as of each Representation Date (other than the date hereof)Date, in all material respects, with the requirements of the Act; the Registration Statement did not, as of the time of its initial effectiveness, and does not or will not, as then amended or supplemented, as of each Representation Date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; as of each Representation Date (other than the date hereof)Date, the Prospectus, as then amended or supplemented, together with all of the then issued Permitted Free Writing Prospectuses, if any, will not contain an untrue statement of a material fact or omit to state a material fact necessary inin 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 representation or warranty with respect to any statement in or omission from the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus made in reliance upon and in conformity with information concerning any Agent and furnished in writing by or on behalf of any Agent expressly for use in the Registration Statement, the Prospectus or such Permitted Free Writing Prospectus (it being understood that such information consists solely of the information specified in Section 9(b)). As used herein, “Time of Sale” means (i) with respect to each offering of Shares pursuant to this Agreement, the time of the applicable Agent’s initial entry into contracts with investors for the sale of such Shares and (ii) with respect to each offering of Shares pursuant to any relevant Terms Agreement, the time of sale of such Shares.
Appears in 2 contracts
Samples: Distribution Agreement (Century Communities, Inc.), Distribution Agreement (Century Communities, Inc.)
Representations, Warranties and Agreements of the Company. Each of the The Company represents and the Operating Partnership, jointly and severally, represent and warrant warrants to, and agree agrees with, DBS, on and as of (i) the date hereof, (ii) each date on which the Company delivers a Transaction Notice (the “Time of Delivery”) or executes and delivers a Terms Agreement, (iii) each Time of Sale (as defined below), (iv) each Settlement Date and (v) each Bring-Down Delivery Date (as defined in Section 6(b)) (each such date listed in (i) through (v), a “Representation Date”), as followsUnderwriter that:
(a) There A registration statement on Form S-1 (File No. 333-29959) relating to the Shares has been prepared by the Company in conformity with the requirements of the Securities Act of 1933, as amended (the "Securities Act"), and the Rules and Regulations (as defined below) of the Securities and Exchange Commission (the "Commission") thereunder and has been filed with the Commission. Copies of such registration statement and any amendments, and all forms of the related prospectuses contained therein, previously filed by the Company with the Commission have been delivered to you and the Company has consented to the Underwriter's use of such copies for the purposes permitted by the Securities Act. Such registration statement, including the prospectus, Part II and all exhibits thereto, as amended at the time when it shall become effective, is no order preventing or suspending herein referred to as the use "Registration Statement," and the prospectus included as part of the Registration Statement on file with the Commission that discloses all the information that was omitted from the prospectus on the effective date pursuant to Rule 430A of the Rules and Regulations with any changes contained in any prospectus filed with the Commission by the Company with your consent after the effective date of the Registration Statement, is herein referred to as the Prospectus or any Permitted Free Writing "Final Prospectus, and, ." Such amendments to such Registration Statement as may have been required prior to the knowledge of date hereof have been filed with the Company, no proceeding for that purpose or pursuant to Section 8A of the Act against Commission; and the Company or related will file such additional amendments to such Registration Statement and such amended prospectuses as may hereafter be required. If the offering Registration Statement has been initiated or threatened declared effective under the Securities Act by the Commission; no notice of objection of , the Company has prepared and will promptly file with the Commission to the use of such information omitted from the Registration Statement pursuant to Rule 401(g)(2430A(a) under of the Act has been received by Rules and Regulations as part of an amendment or supplement to the Company; prospectus pursuant to subparagraph (1) or (4) of Rule 424(b) of the Rules and Regulations or as part of a post-effective amendment to the Registration Statement complied when it initially became effective, complies as of (including an amended prospectus); otherwise the date hereof and, as then amended or supplemented, as of each other Representation Date Company has prepared and will comply, in all material respects, with the requirements of the Act; the conditions promptly file an amendment to the use of Form S-3ASR in connection with the offering and sale of the Shares as contemplated hereby have been satisfied; the Registration Statement meets, and the offering and sale (including an amended prospectus). The prospectus included as part of the Shares as contemplated hereby complies with, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5)); the Prospectus complied or will comply, at the time it was or will be filed with the Commission, and will comply, as then amended or supplemented, as of each Representation Date (other than the date hereof), in all material respects, with the requirements of the Act; the Registration Statement did noton the date when the Registration Statement became effective is referred to herein as the "Effective Prospectus"; any prospectus included in the Registration Statement of the Company and in any amendments thereto prior to the effective date of the Registration Statement is referred to herein as a "Pre-Effective Prospectus." For purposes of this Agreement, "Rules and Regulations" mean the rules and regulations adopted by the Commission under either the Securities Act or the Securities Exchange Act of 1934, as amended (the "Exchange Act"), as applicable, and "affiliate" shall have the definition specified in Rule 405 of the time of its initial effectiveness, Rules and does not or will not, as then amended or supplemented, as of each Representation Date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; as of each Representation Date (other than the date hereof), the Prospectus, as then amended or supplemented, together with all of the then issued Permitted Free Writing Prospectuses, if any, will not contain an untrue statement of a material fact or omit to state a material fact necessary inRegulations.
Appears in 2 contracts
Samples: Underwriting Agreement (Authentic Specialty Foods Inc), Underwriting Agreement (Authentic Specialty Foods Inc)
Representations, Warranties and Agreements of the Company. Each of the Company and the Operating Partnership, jointly and severally, represent and warrant to, and agree with, DBSBAML, on and as of (i) the date hereof, (ii) each date on which the Company delivers a Transaction Notice (the “Time of Delivery”) or executes and delivers a Terms Agreement, (iii) each Time of Sale (as defined below), (iv) each Settlement Date and (v) each Bring-Down Delivery Date (as defined in Section 6(b)) (each such date listed in (i) through (v), a “Representation Date”), as follows:
(a) There is no order preventing or suspending the use of the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus, and, to the knowledge of the Company, no proceeding for that purpose or pursuant to Section 8A of the Act against the Company or related to the offering has been initiated or threatened by the Commission; no notice of objection of the Commission to the use of such Registration Statement pursuant to Rule 401(g)(2) under the Act has been received by the Company; the Registration Statement complied when it initially became effective, complies as of the date hereof and, as then amended or supplemented, as of each other Representation Date will comply, in all material respects, with the requirements of the Act; the conditions to the use of Form S-3ASR in connection with the offering and sale of the Shares as contemplated hereby have been satisfied; the Registration Statement meets, and the offering and sale of the Shares as contemplated hereby complies with, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5)); the Prospectus complied or will comply, at the time it was or will be filed with the Commission, and will comply, as then amended or supplemented, as of each Representation Date (other than the date hereof), in all material respects, with the requirements of the Act; the Registration Statement did not, as of the time of its initial effectiveness, and does not or will not, as then amended or supplemented, as of each Representation Date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; as of each Representation Date (other than the date hereof), the Prospectus, as then amended or supplemented, together with all of the then issued Permitted Free Writing Prospectuses, if any, will not contain an untrue statement of a material fact or omit to state a material fact necessary inthe
Appears in 2 contracts
Samples: Equity Distribution Agreement (American Campus Communities Operating Partnership LP), Equity Distribution Agreement (American Campus Communities Operating Partnership LP)
Representations, Warranties and Agreements of the Company. Each of the The Company represents and the Operating Partnership, jointly and severally, represent and warrant warrants to, and agree agrees with, DBSeach Agent, on and as of (i) the date hereof, (ii) each date on which the Company delivers receives a Transaction Notice Acceptance (the “Time of DeliveryAcceptance”), (iii) or each date on which the Company executes and delivers a Terms Agreement, (iiiiv) each Time of Sale (as defined belowin Section 3(a)), (ivv) each Settlement Date Date, and (vvi) each Bring-Down Delivery Date (as defined in Section 6(b)) (each such date listed in (i) through (vvi), a “Representation Date”), as follows:
(a) The Registration Statement is an “automatic shelf registration statement” as defined under Rule 405 of the Act that has been filed with the Commission not earlier than three years prior to the date hereof, and has been declared effective by the Commission. There is no order preventing or suspending the use of the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus, and, to the knowledge of the Company, no proceeding for that purpose or pursuant to Section 8A of the Act against the Company or related to the offering has been initiated or threatened by the Commission; no notice of objection of the Commission to the use of such Registration Statement pursuant to Rule 401(g)(2) under the Act has been received by the Company; the Registration Statement complied when it initially became effective, complies as of the date hereof and, as then amended or supplemented, as of each other Representation Date will comply, in all material respects, with the requirements of the Act; the conditions to the use of Form S-3ASR S-3 in connection with the offering and sale of the Shares as contemplated hereby have been satisfied; the Registration Statement meets, and the offering and sale of the Shares as contemplated hereby complies with, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5)); the Prospectus complied or will comply, at the time it was or will be filed with the Commission, and will comply, as then amended or supplemented, as of each Representation Date (other than the date hereof)Date, in all material respects, with the requirements of the Act; the Registration Statement did not, as of the time of its initial effectiveness, and does not or will not, as then amended or supplemented, as of each Representation Date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; as of each Representation Date (other than the date hereof)Date, the Prospectus, as then amended or supplemented, together with all of the then issued Permitted Free Writing Prospectuses, if any, will not contain an untrue statement of a material fact or omit to state a material fact necessary inin 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 representation or warranty with respect to any statement in or omission from the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus made in reliance upon and in conformity with information concerning any Agent and furnished in writing by or on behalf of any Agent expressly for use in the Registration Statement, the Prospectus or such Permitted Free Writing Prospectus (it being understood that such information consists solely of the information specified in Section 9(b)). As used herein, “Time of Sale” means (i) with respect to each offering of Shares pursuant to this Agreement, the time of the applicable Agent’s initial entry into contracts with investors for the sale of such Shares and (ii) with respect to each offering of Shares pursuant to any relevant Terms Agreement, the time of sale of such Shares.
Appears in 2 contracts
Samples: Distribution Agreement (Century Communities, Inc.), Distribution Agreement (Century Communities, Inc.)
Representations, Warranties and Agreements of the Company. Each of the Company and the Operating Partnership, jointly and severally, represent and warrant to, and agree with, DBSBAML, on and as of (i) the date hereof, (ii) each date on which the Company delivers a Transaction Notice (the “Time of Delivery”) or executes and delivers a Terms Agreement, (iii) each Time of Sale (as defined below), (iv) each Settlement Date and (v) each Bring-Down Delivery Date (as defined in Section 6(b)) (each such date listed in (i) through (v), a “Representation Date”), as follows:
(a) There is no order preventing or suspending the use of the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus, and, to the knowledge of the Company, no proceeding for that purpose or pursuant to Section 8A of the Act against the Company or related to the offering has been initiated or threatened by the Commission; no notice of objection of the Commission to the use of such Registration Statement pursuant to Rule 401(g)(2) under the Act has been received by the Company; the Registration Statement complied when it initially became effective, complies as of the date hereof and, as then amended or supplemented, as of each other Representation Date will comply, in all material respects, with the requirements of the Act; the conditions to the use of Form S-3ASR in connection with the offering and sale of the Shares as contemplated hereby have been satisfied; the Registration Statement meets, and the offering and sale of the Shares as contemplated hereby complies with, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5)); the Prospectus complied or will comply, at the time it was or will be filed with the Commission, and will comply, as then amended or supplemented, as of each Representation Date (other than the date hereof), in all material respects, with the requirements of the Act; the Registration Statement did not, as of the time of its initial effectiveness, and does not or will not, as then amended or supplemented, as of each Representation Date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; as of each Representation Date (other than the date hereof), the Prospectus, as then amended or supplemented, together with all of the then issued Permitted Free Writing Prospectuses, if any, will not contain an untrue statement of a material fact or omit to state a material fact necessary inan
Appears in 2 contracts
Samples: Equity Distribution Agreement (American Campus Communities Inc), Equity Distribution Agreement (American Campus Communities Inc)
Representations, Warranties and Agreements of the Company. Each of The Company represents, warrants and agrees that:
(a) A registration statement on Form S-1 (File No. 333-173808) relating to the Company and the Operating Partnership, jointly and severally, represent and warrant to, and agree with, DBS, on and as of Stock has (i) been prepared by the date hereofCompany in conformity with the requirements of the Securities Act of 1933, as amended (the “Securities Act”), and the rules and regulations of the Securities and Exchange Commission (the “Commission”) thereunder; (ii) each date on which been filed with the Commission under the Securities Act; and (iii) become effective under the Securities Act. Copies of such registration statement and any amendment thereto have been delivered by the Company delivers a Transaction Notice to you as the representatives (the “Time of DeliveryRepresentatives”) of the Underwriters. The Commission has not issued any order preventing or executes suspending the use of any Preliminary Prospectus or the Prospectus or suspending the effectiveness of the Registration Statement, and delivers no proceeding or examination for such purpose has been instituted or threatened by the Commission.
(b) The Company was not at the time of initial filing of the Registration Statement and at the earliest time thereafter that the Company or another offering participant made a Terms Agreementbona fide offer (within the meaning of Rule 164(h)(2) under the Securities Act) of the Stock, (iii) each Time of Sale (as defined below), (iv) each Settlement Date is not on the date hereof and (v) each Bring-Down will not be on the applicable Delivery Date (as defined in Section 6(b)) (each such date listed in (i) through (v5), a an “Representation Date”ineligible issuer” (as defined in Rule 405 under the Securities Act), as follows:.
(ac) There is no order preventing or suspending The Registration Statement conformed and will conform in all material respects on the use of Effective Date and on the applicable Delivery Date, and any amendment to the Registration Statement, Statement filed after the Prospectus or any Permitted Free Writing Prospectus, anddate hereof will conform in all material respects when filed, to the knowledge requirements of the CompanySecurities Act and the rules and regulations thereunder. The most recent Preliminary Prospectus conformed, no proceeding for that purpose or pursuant to Section 8A of and the Act against the Company or related to the offering has been initiated or threatened by the Commission; no notice of objection of the Commission to the use of such Registration Statement pursuant to Rule 401(g)(2) under the Act has been received by the Company; the Registration Statement complied when it initially became effective, complies as of the date hereof and, as then amended or supplemented, as of each other Representation Date Prospectus will complyconform, in all material respects, respects when filed with the Commission pursuant to Rule 424(b) under the Securities Act and on the applicable Delivery Date to the requirements of the Act; the conditions to the use of Form S-3ASR in connection with the offering and sale of the Shares as contemplated hereby have been satisfied; the Registration Statement meets, Securities Act and the offering rules and sale of the Shares as contemplated hereby complies with, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5)); the Prospectus complied or will comply, at the time it was or will be filed with the Commission, and will comply, as then amended or supplemented, as of each Representation Date (other than the date hereof), in all material respects, with the requirements of the Act; the Registration Statement did not, as of the time of its initial effectiveness, and does not or will not, as then amended or supplemented, as of each Representation Date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; as of each Representation Date (other than the date hereof), the Prospectus, as then amended or supplemented, together with all of the then issued Permitted Free Writing Prospectuses, if any, will not contain an untrue statement of a material fact or omit to state a material fact necessary inregulations thereunder.
Appears in 2 contracts
Samples: Underwriting Agreement (WPX Energy, Inc.), Underwriting Agreement (WPX Energy, Inc.)
Representations, Warranties and Agreements of the Company. Each of the The Company represents, warrants and the Operating Partnership, jointly and severally, represent and warrant to, and agree with, DBS, on and as of (i) the date hereof, (ii) each date on which the Company delivers a Transaction Notice (the “Time of Delivery”) or executes and delivers a Terms Agreement, (iii) each Time of Sale (as defined below), (iv) each Settlement Date and (v) each Bring-Down Delivery Date (as defined in Section 6(b)) (each such date listed in (i) through (v), a “Representation Date”), as followsagrees that:
(a) There is no A registration statement on Form S-1 with respect to the Company, the Selling Stockholders and the Stock has (i) been prepared by the Company in conformity with the requirements of the Securities Act of 1933, as amended (the “Securities Act”), and the rules and regulations (the “Rules and Regulations”) of the Securities and Exchange Commission (the “Commission”) thereunder, (ii) been filed with the Commission under the Securities Act and (iii) become effective under the Securities Act. Copies of such registration statement and each of the amendments thereto have been delivered by the Company to you. As used in this Agreement, “Effective Time” means the date and the time as of which such registration statement, or the most recent post-effective amendment thereto, if any, was declared effective by the Commission; “Effective Date” means the date of the Effective Time; “Preliminary Prospectus” means each prospectus included in such registration statement, or amendments thereof, before it became effective under the Securities Act and any prospectus filed with the Commission by the Company with the consent of the Representatives pursuant to Rule 424(a) of the Rules and Regulations; “Registration Statement” means such registration statement, as amended at the Effective Time, including all information contained in the final prospectus filed with the Commission pursuant to Rule 424(b) of the Rules and Regulations and deemed to be a part of the registration statement as of the Effective Time pursuant to Rule 430A of the Rules and Regulations; and “Prospectus” means the prospectus in the form first used to confirm sales of Stock. If the Company has filed an abbreviated registration statement to register additional shares of Common Stock pursuant to Rule 462(b) under the Securities Act (the “Rule 462 Registration Statement”), then any reference herein to the term “Registration Statement” shall be deemed to include such Rule 462 Registration Statement. The Commission has not issued any order preventing or suspending the use of the Registration Statement, the Prospectus or any Permitted Free Writing Preliminary Prospectus, and, to the knowledge of the Company, no proceeding for that purpose or pursuant to Section 8A of the Act against the Company or related to the offering has been initiated or threatened by the Commission; no notice of objection of the Commission to the use of such Registration Statement pursuant to Rule 401(g)(2) under the Act has been received by the Company; the Registration Statement complied when it initially became effective, complies as of the date hereof and, as then amended or supplemented, as of each other Representation Date will comply, in all material respects, with the requirements of the Act; the conditions to the use of Form S-3ASR in connection with the offering and sale of the Shares as contemplated hereby have been satisfied; the Registration Statement meets, and the offering and sale of the Shares as contemplated hereby complies with, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5)); the Prospectus complied or will comply, at the time it was or will be filed with the Commission, and will comply, as then amended or supplemented, as of each Representation Date (other than the date hereof), in all material respects, with the requirements of the Act; the Registration Statement did not, as of the time of its initial effectiveness, and does not or will not, as then amended or supplemented, as of each Representation Date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; as of each Representation Date (other than the date hereof), the Prospectus, as then amended or supplemented, together with all of the then issued Permitted Free Writing Prospectuses, if any, will not contain an untrue statement of a material fact or omit to state a material fact necessary in.
Appears in 2 contracts
Samples: Underwriting Agreement (Tessera Technologies Inc), Underwriting Agreement (Tessera Technologies Inc)
Representations, Warranties and Agreements of the Company. Each of the Company and the Operating Partnership, jointly and severally, represent and warrant to, and agree with, DBSKeyBanc, on and as of (i) the date hereof, (ii) each date on which the Company delivers a Transaction Notice (the “Time of Delivery”) or executes and delivers a Terms Agreement, (iii) each Time of Sale (as defined below), (iv) each Settlement Date and (v) each Bring-Down Delivery Date (as defined in Section 6(b)) (each such date listed in (i) through (v), a “Representation Date”), as follows:
(a) There is no order preventing or suspending the use of the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus, and, to the knowledge of the Company, no proceeding for that purpose or pursuant to Section 8A of the Act against the Company or related to the offering has been initiated or threatened by the Commission; no notice of objection of the Commission to the use of such Registration Statement pursuant to Rule 401(g)(2) under the Act has been received by the Company; the Registration Statement complied when it initially became effective, complies as of the date hereof and, as then amended or supplemented, as of each other Representation Date will comply, in all material respects, with the requirements of the Act; the conditions to the use of Form S-3ASR in connection with the offering and sale of the Shares as contemplated hereby have been satisfied; the Registration Statement meets, and the offering and sale of the Shares as contemplated hereby complies with, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5)); the Prospectus complied or will comply, at the time it was or will be filed with the Commission, and will comply, as then amended or supplemented, as of each Representation Date (other than the date hereof), in all material respects, with the requirements of the Act; the Registration Statement did not, as of the time of its initial effectiveness, and does not or will not, as then amended or supplemented, as of each Representation Date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; as of each Representation Date (other than the date hereof), the Prospectus, as then amended or supplemented, together with all of the then issued Permitted Free Writing Prospectuses, if any, will not contain an untrue statement of a material fact or omit to state a material fact necessary inor
Appears in 2 contracts
Samples: Equity Distribution Agreement (American Campus Communities Operating Partnership LP), Equity Distribution Agreement (American Campus Communities Inc)
Representations, Warranties and Agreements of the Company. Each of the The Company represents, warrants and the Operating Partnership, jointly and severally, represent and warrant to, and agree with, DBS, on and as of (i) the date hereof, (ii) each date on which the Company delivers a Transaction Notice (the “Time of Delivery”) or executes and delivers a Terms Agreement, (iii) each Time of Sale (as defined below), (iv) each Settlement Date and (v) each Bring-Down Delivery Date (as defined in Section 6(b)) (each such date listed in (i) through (v), a “Representation Date”), agrees as follows:
(a) There is no order preventing or suspending The Company meets the requirements for use of the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus, and, Form S-3 and a shelf registration statement on Form S-3 (File Nos. 33-89612 and 333-18259) relating to the knowledge Shares, one or more series of the Company's unsecured debt securities, preferred shares of beneficial interest, Common Shares and warrants exercisable for Common Shares, including a prospectus, has (i) been prepared by the Company in conformity with the requirements of the Securities Act of 1933, as amended (the "Securities Act"), and the rules and regulations (the "Rules and Regulations") of the Securities and Exchange Commission (the "Commission") thereunder, (ii) been filed with the Commission under the Securities Act and (iii) become effective under the Securities Act. The registration statement and prospectus may have been amended or supplemented prior to the date of this Agreement; any such amendment or supplement was so prepared and filed, and any such amendment filed after the effective date of the registration statement has become effective. No stop order suspending the effectiveness of the registration statement has been issued, and no proceeding for that purpose or pursuant to Section 8A of the Act against the Company or related has been instituted or, to the offering has been initiated or Company's knowledge, threatened by the Commission; no notice of objection . Copies of the registration statement and prospectus, any amendments or supplements and all documents incorporated by reference therein that were filed with the Commission on or prior to the use date of this Agreement have been delivered or made available to the Underwriter. As used in this Agreement, "Effective Time" means the date and the time as of which such Registration Statement registration statement, or the most recent post-effective amendment thereto, if any, was declared effective by the Commission; "Effective Date" means the date of the Effective Time; "Base Prospectus" means the prospectus included in such registration statement, and as further amended and filed under Rule 424(b) at the time of the filing of the Prospectus Supplement; "Prospectus Supplement" means each prospectus supplement accompanying the Base Prospectus in connection with the offer and sale of the Shares, or amendments or supplements thereto; the Base Prospectus and Prospectus Supplement include any prospectus filed with the Commission by the Company pursuant to Rule 401(g)(2424(b) of the Rules and Regulations with respect to the offer and sale of the Shares; "Registration Statement" means such registration statement, as amended at the Effective Time, including any documents incorporated by reference therein at such time and all information contained in the Prospectus (as defined below) filed with the Commission pursuant to Rule 424(b) of the Rules and Regulations; and "Prospectus" means the final Base Prospectus and Prospectus Supplement, as first filed with the Commission pursuant to Rule 424(b) of the Rules and Regulations. Reference made herein to the Prospectus Supplement or to the Prospectus shall be deemed to refer to and include any documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the Act has been received by the Company; the Registration Statement complied when it initially became effectiveSecurities Act, complies as of the date hereof and, as then amended of such Prospectus Supplement or supplemented, as of each other Representation Date will comply, in all material respects, with the requirements of the Act; the conditions to the use of Form S-3ASR in connection with the offering and sale of the Shares as contemplated hereby have been satisfied; the Registration Statement meets, and the offering and sale of the Shares as contemplated hereby complies with, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5)); the Prospectus complied or will comply, at the time it was or will be filed with the Commission, and will comply, as then amended or supplemented, as of each Representation Date (other than the date hereof), in all material respects, with the requirements of the Act; the Registration Statement did not, as of the time of its initial effectiveness, and does not or will not, as then amended or supplemented, as of each Representation Date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; as of each Representation Date (other than the date hereof), the Prospectus, as then amended the case may be, and any reference to any amendment or supplemented, together with all supplement to the Prospectus Supplement or the Prospectus shall be deemed to refer to and include any document filed under the Securities Exchange Act of 1934 (the "Exchange Act") after the date of the then issued Permitted Free Writing ProspectusesProspectus Supplement or the Prospectus, if anyas the case may be, will not contain an untrue statement and incorporated by reference in such Prospectus Supplement or the Prospectus, as the case may be; and any reference to any amendment to the Registration Statement shall be deemed to include any report or document filed by or on behalf of a material fact the Company with the Commission pursuant to Section 13(a), 13(c), 14 or omit to state a material fact necessary in15(d) of the Exchange Act after the Effective Time that is incorporated by reference in the Prospectus.
Appears in 1 contract
Representations, Warranties and Agreements of the Company. Each of the The Company represents and the Operating Partnership, jointly and severally, represent and warrant to, and agree with, DBS, on and warrants to each Underwriter as of (i) the date hereof, (ii) each as of the date on which of the Company delivers a Transaction Notice (applicable Terms Agreement and as of the “Closing Time of Delivery”) or executes and delivers a Terms Agreement, (iii) each Time of Sale (as defined below), (iv) each Settlement Date and (v) each Bring-Down Delivery Date (as defined referred to in Section 6(b)) (3 hereof, and agrees with each such date listed in (i) through (v), a “Representation Date”), Underwriter as follows:
(a) There is The Company meets the requirements for use of Form S-3 under the Securities Act and the Securities Act Regulations and the conditions for use of Form S-3, as set forth in the general instructions thereto, have been satisfied. The Company has filed with the Commission the Registration Statement and has filed such amendments thereto as may have been required to the date hereof. The Registration Statement (which includes any post-effective amendment thereto) has been declared effective by the Commission; no stop order preventing or suspending the use effectiveness of the such Registration Statement, the Prospectus or any Permitted Free Writing Prospectus, and, to the knowledge of the Company, Statement has been issued; and no proceeding for that purpose or pursuant to Section 8A of the Act against the Company or related to the offering has been initiated or threatened by the Commission; no notice of objection of Commission and the Commission to the use of such Registration Statement pursuant to Rule 401(g)(2) Indenture has been qualified under the Act has been received by Trust Indenture Act;
(b) The Registration Statement, the Company; Prospectus and the Indenture, at the time the Registration Statement complied when it initially and any amendments thereto became effective, complies effective and as of the date hereof and, as then amended or supplementedhereof, as of each other Representation Date will complythe date of the applicable Terms Agreement and as of the Closing Time, complied in all material respectsrespects with the applicable requirements of the Securities Act, the Securities Act Regulations and the Trust Indenture Act and the rules and regulations thereunder (the "Trust Indenture Act Regulations"). The Registration Statement, at the time the Registration Statement and any amendments thereto became effective and as of the date hereof, as of the date of the applicable Terms Agreement and as of the Closing Time, did not, and will not, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading. The Prospectus, at the time the Registration Statement and any amendments thereto became effective and as of the date hereof, as of the date of the applicable Terms Agreement and as of the Closing Time (unless the term "Prospectus" refers to a prospectus which has been provided to the Underwriters by the Company for use in connection with the offering of the Securities which differs from the Prospectus filed with the Commission pursuant to Rule 424(b) of the Securities Act Regulations, in which case also at the time the Prospectus is first provided to the Underwriters for such use) did not, and will not, contain any untrue statement 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 two preceding sentences do not apply to (i) that part of the Registration Statement which shall constitute the Statement of Eligibility and Qualification ("Form T-1") of the Trustee under the Trust Indenture Act or (ii) information contained in or omitted from the Registration Statement or the Prospectus (or any supplement thereto) in reliance upon and in conformity with written information furnished to the Company through the Representatives by or on behalf of any Underwriter specifically for use therein (the "Underwriters' Information"). For purposes of this Section 1(b), all references to the Registration Statement, any post-effective amendments thereto and the Prospectus shall be deemed to include, without limitation, any electronically transmitted copies thereof, including, without limitation, any copy filed with the Commission pursuant to its Electronic Data Gathering, Analysis, and Retrieval system ("EDGAX");
(c) The documents incorporated by reference or deemed to be incorporated by reference in the Prospectus, when they became effective and at the time they were filed with the Commission, complied and will comply in all material respects with the requirements of the Act; Exchange Act and the conditions to the use of Form S-3ASR in connection with the offering rules and sale regulations of the Shares as contemplated hereby have been satisfied; Commission thereunder (the Registration Statement meets"Exchange Act Regulations"), 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 offering statements therein not misleading; and sale of any further documents so filed and incorporated by reference in the Shares as contemplated hereby complies withProspectus, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5)); the Prospectus complied or will comply, at the time it was or will be when such documents are filed with the Commission, and will comply, as then amended or supplemented, as of each Representation Date (other than the date hereof), conform in all material respects, with respects to the requirements of the Act; Exchange Act and the Registration Statement did not, as of the time of its initial effectiveness, Exchange Act Regulations and does will not or will not, as then amended or supplemented, as of each Representation Date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading; (d) The Company and each of its subsidiaries have been duly incorporated and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation, are duly qualified to do business and are in good standing as foreign corporations in each jurisdiction in which their respective ownership or lease of property or the conduct of their respective businesses requires such qualification, and have all power and authority necessary to own or hold their respective properties and to conduct the businesses in which they are engaged, except where the failure to so qualify or have such power or authority would not have, singularly or in the aggregate, a material adverse effect on the financial condition, results of operations or business of the Company and its subsidiaries taken as a whole;
(e) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and are not subject to preemptive or similar rights and conform to the description thereof contained in the Prospectus;
(f) The Securities being sold pursuant to the Terms Agreement have, as of the date of the Terms Agreement, been duly authorized and, when the Securities are executed and authenticated in accordance with the provisions of the Indenture and issued and delivered against payment therefor as provided in the Terms Agreement with respect to such Securities, such Securities will have been duly executed, authenticated, issued and delivered and will constitute valid and legally binding obligations of the Company entitled to the benefits provided by the Indenture, in each Representation Date case enforceable against the Company in accordance with their respective terms, subject, as to enforcement, to bankruptcy, insolvency, moratorium, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles (regardless of whether the enforcement is sought in a proceeding at law or in equity); which Securities will be in the form filed as an exhibit to the Registration Statement in all material respects; the Indenture has been duly authorized and, at the Closing Time for such Securities, the Indenture will constitute a valid and legally binding agreement, enforceable against the Company in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, moratorium, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles (regardless of whether the enforcement is sought in a proceeding at law or in equity); and the Indenture conforms, and the Securities will conform, to the descriptions thereof contained in the Prospectus as amended or supplemented with respect to such Securities;
(g) This Agreement has been duly authorized, executed and delivered by the Company;
(h) The execution, delivery and performance of this Agreement, the applicable Terms Agreement, the Indenture and the Securities by the Company and the consummation of the transactions contemplated hereby and thereby will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject and which conflict, breach, violation or default would have a material adverse effect on the financial condition, results of operations or business of the Company and its subsidiaries taken as a whole, nor will such actions result in any violation of the provisions of the charter or by-laws of the Company or any of its subsidiaries or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or any of their properties or assets; and except for the registration of the Securities under the Securities Act, the qualification of the Indenture under the Trust Indenture Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws in connection with the purchase and distribution of the Securities by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body is required for the execution, delivery and performance of this Agreement, the Indenture or the Securities by the Company and the consummation of the transactions contemplated hereby and thereby;
(i) The financial statements (including the related notes and supporting schedules) filed as part of the Registration Statement or included or incorporated by reference in the Prospectus present fairly in all material respects the financial condition and results of operations of the entities purported to be shown thereby, at the dates and for the periods indicated, and have been prepared in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods involved except as disclosed therein;
(j) Other than as set forth or incorporated by reference in the Registration Statement and the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property or assets of the Company or any of its subsidiaries is the subject which, singularly or in the aggregate, are reasonably likely to have a material adverse effect on the financial condition, results of operations or business of the Company and its subsidiaries taken as a whole; and to the best of the Company's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(k) Neither the Company nor any of its subsidiaries has sustained since the date of the latest audited financial statements included or incorporated by reference in the Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, which is material to the Company and its subsidiaries, taken as a whole, otherwise than as set forth or contemplated in the Prospectus; and since the respective dates as of which information is given in the Prospectus, there has not been any material change in the capital stock or long-term debt of the Company or any of its subsidiaries (other than pursuant to employee stock option and dividend reinvestment plans or the date hereof), Company's common stock repurchase program as set forth or contemplated in the Prospectus) or any material adverse change, as then amended or supplementedany development which the Company has reasonable cause to believe will involve a material adverse change, together with all in or affecting the management, financial position, stockholder's equity or results of operations of the then issued Permitted Free Writing ProspectusesCompany and its subsidiaries, if any, will not contain an untrue statement otherwise than as set forth or contemplated in the Prospectus; and
(l) The accountants who certified the financial statements and supporting schedules included or incorporated by reference into the Registration Statement and Prospectus are independent public accountants as required by the Securities Act and the Securities Act Regulations. Any certificate signed by any officer of the Company and delivered to the Representatives or to counsel for the Underwriters shall be deemed a material fact or omit representation and warranty by the Company to state a material fact necessary ineach Underwriter as to the matters covered thereby.
Appears in 1 contract
Samples: Underwriting Agreement (Mapco Inc)
Representations, Warranties and Agreements of the Company. Each of the The Company represents and the Operating Partnership, jointly and severally, represent and warrant warrants to, and agree agrees with, DBSeach of the Agents, on and as of (i) the date hereof, (ii) each date on which the Company delivers receives a Transaction Notice Acceptance (the “Time of DeliveryAcceptance”), (iii) or each date on which the Company executes and delivers a Terms Agreement, (iiiiv) each Time of Sale (as defined belowin Section 3(a)), (ivv) each Settlement Date and (vvi) each Bring-Down Delivery Date (as defined in Section 6(b)) (each such date listed in (i) through (vvi), a “Representation Date”), as follows:
(a) There The Registration Statement is an “automatic shelf registration statement” as defined under Rule 405 under the Act that has been filed with the Commission not earlier than three years prior to the date hereof; there is no order preventing or suspending the use of the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus, and, to the knowledge of the Company, no proceeding for that purpose or pursuant to Section 8A of the Act against the Company or related to the offering has been initiated or threatened by the Commission; no notice of objection of the Commission to the use of such Registration Statement pursuant to Rule 401(g)(2) under the Act has been received by the Company; the Registration Statement complied when it initially became effective, complies as of the date hereof and, as then amended or supplemented, as of each other Representation Date will comply, in all material respects, with the requirements of the Act; the conditions to the use of Form S-3ASR S-3 in connection with the offering and sale of the Shares as contemplated hereby by this Agreement and any Terms Agreement have been satisfied; the Registration Statement meets, and the offering and sale of the Shares as contemplated hereby complies by this Agreement and any Terms Agreement comply with, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5)); the Prospectus complied or will comply, at the time it was or will be filed with the Commission, and will comply, as then amended or supplemented, as of each Representation Date (other than the date hereof)Date, in all material respects, with the requirements of the Act; the Registration Statement did not, as of the time of its initial effectiveness, and does not or will not, as then amended or supplemented, as of each Representation Date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; as of each Representation Date (other than the date hereof)Date, the Prospectus, as then amended or supplemented, together with all of the then issued Permitted Free Writing Prospectuses, if any, will not contain an untrue statement of a material fact or omit to state a material fact necessary inin 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 representation or warranty with respect to any statement in or omission from the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus made in reliance upon and in conformity with information concerning the Agents and furnished in writing by or on behalf of the Agents expressly for use in the Registration Statement, the Prospectus or such Permitted Free Writing Prospectus (it being understood that such information consists solely of the information specified in Section 9(b)). As used herein, “Time of Sale” means (i) with respect to each offering of Shares pursuant to this Agreement, the time of an Agent’s initial entry into contracts with investors for the sale of such Shares and (ii) with respect to each offering of Shares pursuant to any relevant Terms Agreement, the time of sale of such Shares.
Appears in 1 contract
Samples: Distribution Agreement (New Residential Investment Corp.)
Representations, Warranties and Agreements of the Company. Each of the The Company represents and the Operating Partnership, jointly and severally, represent and warrant to, and agree with, DBS, on and warrants to each Underwriter as of (i) the date hereof, as of the date of the applicable Terms Agreement (iieach of such dates being hereinafter referred to as a "Representation Date") each date on which and as of the Company delivers a Transaction Notice (the “Closing Time of Delivery”) or executes and delivers a Terms Agreement, (iii) each Time of Sale (as defined below), (iv) each Settlement Date and (v) each Bring-Down Delivery Date (as defined referred to in Section 6(b)) (3 hereof, and agrees with each such date listed in (i) through (v), a “Representation Date”), Underwriter as follows:
(a) There is The Company meets the requirements for use of Form S-3 under the Securities Act and the Securities Act Regulations and the conditions for use of Form S-3, as set forth in the general instructions thereto, have been satisfied. The Company has filed with the Commission the Registration Statement and has filed such amendments thereto as may have been required to the date hereof. The Registration Statement (which includes any post-effective amendment thereto) has been declared effective by the Commission; no stop order preventing or suspending the use effectiveness of the such Registration Statement, the Prospectus or any Permitted Free Writing Prospectus, and, to the knowledge of the Company, Statement has been issued; and no proceeding for that purpose or pursuant to Section 8A of the Act against the Company or related to the offering has been initiated or threatened by the Commission; no notice of objection of Commission and the Commission to the use of such Registration Statement pursuant to Rule 401(g)(2) Indenture has been qualified under the Act has been received by Trust Indenture Act;
(b) The Registration Statement, the Company; the Registration Statement complied when it initially became effective, complies as of the date hereof and, as then amended or supplemented, as of each other Representation Date will comply, in all material respects, with the requirements of the Act; the conditions to the use of Form S-3ASR in connection with the offering and sale of the Shares as contemplated hereby have been satisfied; the Registration Statement meets, Prospectus and the offering and sale of the Shares as contemplated hereby complies with, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5)); the Prospectus complied or will complyIndenture, at the time it was or will be filed with the Commission, and will comply, as then amended or supplemented, as of each Representation Date (other than the date hereof), in all material respects, with the requirements of the Act; the Registration Statement did not, as of the time of its initial effectiveness, and does not or will not, as then amended or supplemented, any amendments thereto became effective and as of each Representation Date, complied in all material respects with the applicable requirements of the Securities Act, the Securities Act Regulations and the Trust Indenture Act and the rules and regulations thereunder (the "Trust Indenture Act Regulations"). The Registration Statement, at the time the Registration Statement and any amendments thereto became effective and as of the Representation Date and the Closing Time, did not, and will not, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading. The Prospectus, at the time the Registration Statement and any amendments thereto became effective and as of each Representation Date and at the Closing Time (unless the term "Prospectus" refers to a prospectus which has been provided to the Underwriters by the Company for use in connection with the offering of the Securities which differs from the Prospectus filed with the Commission pursuant to Rule 424(b) of the Securities Act Regulations, in which case also at the time the Prospectus is first provided to the Underwriters for such use) 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. The two preceding sentences do not apply to (i) that part of the Registration Statement which shall constitute the Statement of Eligibility and Qualification ("Form T-1") of the Trustee under the Trust Indenture Act or (ii) information contained in or omitted from the Registration Statement or the Prospectus (or any supplement thereto) in reliance upon and in conformity with written information furnished to the Company through the Representatives by or on behalf of any Underwriter specifically for use therein (the "Underwriters' Information"). For purposes of this Section 1(b), all references to the Registration Statement, any post-effective amendments thereto and the Prospectus shall be deemed to include, without limitation, any electronically transmitted copies thereof, including, without limitation, any copy filed with the Commission pursuant to its Electronic Data Gathering, Analysis, and Retrieval system ("EDGAX");
(c) The documents incorporated by reference or deemed to be incorporated by reference in the Prospectus, when they became effective and at the time they were filed with the Commission, complied and will comply in all material respects with the requirements of the Exchange Act and the rules and regulations of the Commission thereunder (the "Exchange Act Regulations"), 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 are filed with the Commission, will conform in all material respects to the requirements of the Exchange Act and the Exchange Act Regulations 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 therein, in the light of the circumstances under which they were made, not misleading; ;
(d) The Company and each of its subsidiaries have been duly incorporated and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation, are duly qualified to do business and are in good standing as foreign corporations in each jurisdiction in which their respective ownership or lease of property or the conduct of their respective businesses requires such qualification, and have all power and authority necessary to own or hold their respective properties and to conduct the businesses in which they are engaged, except where the failure to so qualify or have such power or authority would not have, singularly or in the aggregate, a material adverse effect on the financial condition, results of operations or business of the Company and its subsidiaries taken as a whole;
(e) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and conform to the description thereof contained in the Prospectus;
(f) The Securities being sold pursuant to the Terms Agreement have, as of the date of the Terms Agreement, been duly authorized and, when the Securities are executed and authenticated in accordance with the provisions of the Indenture and issued and delivered against payment therefor as provided in the Terms Agreement with respect to such Securities, such Securities will have been duly executed, authenticated, issued and delivered and will constitute valid and legally binding obligations of the Company entitled to the benefits provided by the Indenture, in each Representation Date case enforceable against the Company in accordance with their respective terms, subject, as to enforcement, to bankruptcy, insolvency, moratorium, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles (regardless of whether the enforcement is sought in a proceeding at law or in equity); which Securities will be in the form filed as an exhibit to the Registration Statement in all material respects; the Indenture has been duly authorized and, at the Closing Time for such Securities, the Indenture will constitute a valid and legally binding agreement, enforceable against the Company in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, moratorium, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles (regardless of whether the enforcement is sought in a proceeding at law or in equity); and the Indenture conforms, and the Securities will conform, to the descriptions thereof contained in the Prospectus as amended or supplemented with respect to such Securities;
(g) This Agreement has been duly authorized, executed and delivered by the Company;
(h) The execution, delivery and performance of this Agreement, the Indenture and the Securities by the Company and the consummation of the transactions contemplated hereby and thereby will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject and which conflict, breach, violation or default would have a material adverse effect on the financial condition, results of operations or business of the Company and its subsidiaries taken as a whole, nor will such actions result in any violation of the provisions of the charter or by-laws of the Company or any of its subsidiaries or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or any of their properties or assets; and except for the registration of the Securities under the Securities Act, the qualification of the Indenture under the Trust Indenture Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws in connection with the purchase and distribution of the Securities by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body is required for the execution, delivery and performance of this Agreement, the Indenture or the Securities by the Company and the consummation of the transactions contemplated hereby and thereby;
(i) The financial statements (including the related notes and supporting schedules) filed as part of the Registration Statement or included or incorporated by reference in the Prospectus present fairly in all material respects the financial condition and results of operations of the entities purported to be shown thereby, at the dates and for the periods indicated, and have been prepared in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods involved except as disclosed therein;
(j) Other than as set forth or incorporated by reference in the Registration Statement and the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property or assets of the Company or any of its subsidiaries is the subject which, singularly or in the aggregate, are reasonably likely to have a material adverse effect on the financial condition, results of operations or business of the Company and its subsidiaries taken as a whole; and to the best of the Company's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(k) Neither the Company nor any of its subsidiaries has sustained since the date of the latest audited financial statements included or incorporated by reference in the Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, which is material to the Company and its subsidiaries, taken as a whole, otherwise than as set forth or contemplated in the Prospectus; and since the respective dates as of which information is given in the Prospectus, there has not been any material change in the capital stock or long-term debt of the Company or any of its subsidiaries (other than pursuant to employee stock option and dividend reinvestment plans or the date hereof), Company's common stock repurchase program as set forth or contemplated in the Prospectus) or any material adverse change, as then amended or supplementedany development which the Company has reasonable cause to believe will involve a material adverse change, together with all in or affecting the management, financial position, stockholder's equity or results of operations of the then issued Permitted Free Writing ProspectusesCompany and its subsidiaries, if any, will not contain an untrue statement otherwise than as set forth or contemplated in the Prospectus; and
(l) The accountants who certified the financial statements and supporting schedules included or incorporated by reference into the Registration Statement and Prospectus are independent public accountants as required by the Securities Act and the Securities Act Regulations. Any certificate signed by any officer of the Company and delivered to the Representatives or to counsel for the Underwriters shall be deemed a material fact or omit representation and warranty by the Company to state a material fact necessary ineach Underwriter as to the matters covered thereby.
Appears in 1 contract
Samples: Underwriting Agreement (Mapco Inc)
Representations, Warranties and Agreements of the Company. Each of the The Company represents and the Operating Partnership, jointly and severally, represent and warrant towarrants to you, and agree withagrees with you, DBS, on and as of (i) the date hereof, (ii) each date on which the Company delivers a Transaction Notice (the “Time of Delivery”) or executes and delivers a Terms Agreement, (iii) each Time of Sale (as defined below), (iv) each Settlement Date and (v) each Bring-Down Delivery Date (as defined in Section 6(b)) (each such date listed in (i) through (v), a “Representation Date”), as followsthat:
(a) There is no The Registration Statement, including each Preliminary Prospectus and the Prospectus, has been prepared by the Company in conformity with the requirements of the Securities Act and the Rules and Regulations thereunder and has been filed with the Commission; such amendments to such Registration Statement, and each Preliminary Prospectus and Prospectus and such abbreviated registration statements pursuant to Rule 462(b) of the Rules and Regulations as may have been required prior to the date hereof have been similarly prepared and filed with the Commission; and the Company will file such additional amendments to such Registration Statement, Preliminary Prospectuses and Prospectus and such abbreviated registration statements as may hereafter be required. Copies of such Registration Statement, Preliminary Prospectuses and Prospectus, including all amendments thereto, and of any abbreviated registration statement pursuant to Rule 462(b) of the Rules and Regulations have been or, if filed after the Commencement Date, will be, delivered or made available to you and your counsel;
(b) The Registration Statement, including a Preliminary Prospectus, has been filed with the Commission and will become effective not later than the Expiration Date of the Exchange Offer; and the Commission has not issued or to the Company’s knowledge threatened to issue any order refusing or suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus or Prospectus or instituted or to the Company’s knowledge threatened to institute proceedings for that purpose;
(c) At the respective times the Registration Statement, the Prospectus Statement (or any Permitted Free Writing Prospectuspost effective amendment thereto, and, including a registration statement (if any) filed pursuant to the knowledge Rule 462(b) of the Company, no proceeding for that purpose or pursuant to Section 8A Rules and Regulations increasing the size of the Act against offering registered under the Company Act) is or related to the offering has been initiated or threatened was declared effective by the Commission; no notice of objection of , and at the Commission to the use of such Registration Statement pursuant to Rule 401(g)(2Closing Date, (i) under the Act has been received by the Company; the Registration Statement complied when it initially became effective, complies (as of the date hereof and, as then so amended and/or supplemented) conformed or supplemented, as of each other Representation Date will comply, conform in all material respects, with respects to the requirements of the Act; Act and the conditions to the use of Form S-3ASR in connection with the offering Rules and sale of the Shares as contemplated hereby have been satisfied; Regulations, and (ii) the Registration Statement meets, and the offering and sale of the Shares (as contemplated hereby complies with, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5)); the Prospectus complied or will comply, at the time it was or will be filed with the Commission, and will comply, as then so amended or and/or supplemented, as of each Representation Date (other than the date hereof), in all material respects, with the requirements of the Act; the Registration Statement ) did not, as of the time of its initial effectiveness, and does not or will not, as then amended or supplemented, as of each Representation Date, contain not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; as except that the foregoing shall not apply to statements in or omissions from any such document in reliance upon, and in conformity with, written information furnished to the Company by you, specifically for use in the preparation thereof;
(d) None of each Representation Date (other than the date hereof), any Preliminary Prospectus or the Prospectus, as then amended or supplementedany amendments or supplements thereto, together with all of at the then issued Permitted Free Writing Prospectusestime they were or are issued, if any, contained or will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary into make the statements therein, in light of the circumstances in which they were or are made, not misleading; except that the foregoing shall not apply to statements in or omissions from any such document in reliance upon, and in conformity with, written information furnished to the Company by you, specifically for use in the preparation thereof. Each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto conformed or will conform in all material respects to the requirements of the Securities Act, the Exchange Act and the Rules and Regulations, and each Preliminary Prospectus and the Prospectus delivered to you for use in connection with the New Money Offering was or will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T;
(e) As of the Applicable Time, neither (A) the Issuer-Represented General Free Writing Prospectus(es) issued at or prior to the Applicable Time, the Statutory Prospectus and the information included on Schedule I hereto, and the Exchange Offer Materials all considered together (collectively, the “Pricing Disclosure Package”), nor (B) any individual Issuer-Represented Limited-Use Free Writing Prospectus, when considered together with the Pricing Disclosure Package, included any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from any Prospectus included in the Registration Statement or any Issuer-Represented Free Writing Prospectus based upon and in conformity with written information furnished to the Company by you or by any Placement Agent through you specifically for use therein. In the event this Agreement is executed before the Applicable Time, the parties agree that Schedule I hereto shall be completed subsequent to the execution of this Agreement and no later than the Applicable Time. As used in this paragraph and elsewhere in this Agreement:
Appears in 1 contract
Samples: Placement Agreement (Xoma LTD /De/)
Representations, Warranties and Agreements of the Company. Each of the Company and the Operating Partnership, jointly and severally, represent and warrant to, and agree with, DBSJPMS, on and as of (i) the date hereof, (ii) each date on which the Company delivers a Transaction Notice (the “Time of Delivery”) or executes and delivers a Terms Agreement, (iii) each Time of Sale (as defined below), (iv) each Settlement Date and (v) each Bring-Down Delivery Date (as defined in Section 6(b)) (each such date listed in (i) through (v), a “Representation Date”), as follows:
(a) There is no order preventing or suspending the use of the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus, and, to the knowledge of the Company, no proceeding for that purpose or pursuant to Section 8A of the Act against the Company or related to the offering has been initiated or threatened by the Commission; no notice of objection of the Commission to the use of such Registration Statement pursuant to Rule 401(g)(2) under the Act has been received by the Company; the Registration Statement complied when it initially became effective, complies as of the date hereof and, as then amended or supplemented, as of each other Representation Date will comply, in all material respects, with the requirements of the Act; the conditions to the use of Form S-3ASR S–3ASR in connection with the offering and sale of the Shares as contemplated hereby have been satisfied; the Registration Statement meets, and the offering and sale of the Shares as contemplated hereby complies with, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5)); the Prospectus complied or will comply, at the time it was or will be filed with the Commission, and will comply, as then amended or supplemented, as of each Representation Date (other than the date hereof), in all material respects, with the requirements of the Act; the Registration Statement did not, as of the time of its initial effectiveness, and does not or will not, as then amended or supplemented, as of each Representation Date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; as of each Representation Date (other than the date hereof), the Prospectus, as then amended or supplemented, together with all of the then issued Permitted Free Writing Prospectuses, if any, will not contain an untrue statement of a material fact or omit to state a material fact necessary inan
Appears in 1 contract
Samples: Equity Distribution Agreement (American Campus Communities Operating Partnership LP)
Representations, Warranties and Agreements of the Company. Each of the The Company represents and the Operating Partnership, jointly and severally, represent and warrant warrants to, and agree agrees with, DBSthe Underwriter and the Selling Stockholder, on and as of (i) the date hereof, Time of Sale and (ii) each date on which the Company delivers a Transaction Notice (the “Time of Delivery”) or executes and delivers a Terms AgreementClosing Date, (iii) each Time of Sale (as defined below), (iv) each Settlement Date and (v) each Bring-Down Delivery Date (as defined in Section 6(b)) applicable (each such date listed in (i) through and (vii), a “Representation Date”), as follows:
(a) There No order preventing or suspending the use of any Preliminary Prospectus has been issued by the Commission, and each Preliminary Prospectus included in the Pricing Disclosure Package, at the time of filing thereof, complied in all material respects with the Securities Act, and no Preliminary Prospectus, at the time of filing thereof, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company makes no representation and warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to the Underwriter furnished to the Company in writing by the Underwriter expressly for use in any Preliminary Prospectus, it being understood and agreed that the only such information furnished by the Underwriter consists of the information described as such in Section 10(c) hereof. The Pricing Disclosure Package as of the Time of Sale did not, and as of the Closing Date, 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 that the Company makes no representation and warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to the Underwriter furnished to the Company in writing by the Underwriter expressly for use in such Pricing Disclosure Package, it being understood and agreed that the only such information furnished by the Underwriter consists of the information described as such in Section 10(c) hereof. The Registration Statement is an “automatic shelf registration statement” as defined under Rule 405 of the Securities Act that has been filed with the Commission not earlier than three years prior to the date hereof; there is no order preventing or suspending the use of the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus, and, to the knowledge of the Company, no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering has been initiated or threatened by the Commission; no notice of objection of the Commission to the use of such Registration Statement pursuant to Rule 401(g)(2) under the Securities Act has been received by the Company; the Registration Statement complied when it initially became effective, complies as of the date hereof and, as then amended or supplemented, as of each other Representation Date will comply, in all material respects, with the requirements of the Securities Act; the conditions to the use of Form S-3ASR S-3 in connection with the offering and sale of the Shares as contemplated hereby have been satisfied; the Registration Statement meets, and the offering and sale of the Shares as contemplated hereby complies with, the requirements of Rule 415 under the Securities Act (including, without limitation, Rule 415(a)(5)); the Prospectus complied or will comply, at the time it was or will be filed with the Commission, and will comply, as then amended or supplemented, as of each Representation Date (other than the date hereof)Date, in all material respects, with the requirements of the Securities Act; the Registration Statement did not, as of the time of its initial effectiveness, and does not or will not, as then amended or supplemented, as of each Representation Date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; as of each Representation Date (other than the date hereof)Date, the Prospectus, as then amended or supplemented, together with all of the then issued Permitted Free Writing Prospectuses, if any, will not contain an untrue statement of a material fact or omit to state a material fact necessary inin 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 representation or warranty with respect to any statement or omission in the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus in reliance upon and in conformity with information concerning the Underwriter and furnished in writing by or on behalf of the Underwriter expressly for use in the Registration Statement, the Prospectus or such Permitted Free Writing Prospectus (it being understood that such information consists solely of the information specified in Section 10(c)).
(b) Prior to the execution of this Agreement, the Company has not, directly or indirectly, offered or sold any of the Shares by means of any “prospectus” (within the meaning of the Securities Act) or used any “prospectus” (within the meaning of the Securities Act) in connection with the offer or sale of the Shares, in each case other than the Basic Prospectus and the Preliminary Prospectus. The Company represents and agrees that, unless it obtains the prior consent of the Underwriter, it has not made and will not make any offer relating to the Shares that would constitute an “issuer free writing prospectus” (as defined in Rule 433 under the Securities Act) or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under the Securities Act). Any such free writing prospectus relating to the Shares consented to by the Underwriter is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has complied and will comply in all material respects with the requirements of Rule 433 under the Securities Act applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The conditions set forth in one or more of subclauses (i) through (iv), inclusive, of Rule 433(b)(1) under the Securities Act are satisfied, and the registration statement relating to the offering of the Shares contemplated hereby, as initially filed with the Commission, includes a prospectus that, other than by reason of Rule 433 or Rule 431 under the Securities Act, satisfies the requirements of Section 10 of the Securities Act; neither the Company nor the Underwriter is disqualified, by reason of Rule 164(f) or (g) under the Securities Act, from using, in connection with the offer and sale of the Shares, “free writing prospectuses” (as defined in Rule 405 under the Securities Act) pursuant to Rules 164 and 433 under the Securities Act; the Company is not an “ineligible issuer” (as defined in Rule 405 under the Securities Act) as of the eligibility determination date for purposes of Rules 164 and 433 under the Securities Act with respect to the offering of the Shares contemplated by the Registration Statement.
(c) The Incorporated Documents, when they were filed with the Commission, conformed in all material respects to the requirements of the Securities Act or the Exchange Act, as applicable, 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, in light of the circumstances under which they were made, not misleading; and any further documents so filed and incorporated by reference in the Registration Statement, the Pricing Disclosure Package, the Prospectus or any Permitted Free Writing Prospectus, when such documents become effective or are filed with the Commission, as the case may be, will conform in all material respects to the requirements of the Securities Act or the Exchange Act, as applicable, and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(d) The financial statements and the related notes thereto included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package, the Prospectus and any Permitted Free Writing Prospectus comply in all material respects with the applicable requirements of the Securities Act and the Exchange Act, as applicable, and present fairly the financial position of the Company and its consolidated subsidiaries at the dates indicated and their results of operations, stockholders’ equity and cash flows for the periods specified, and such financial statements have been prepared in conformity with the generally accepted accounting principles in the United States (“GAAP”) applied on a consistent basis throughout the periods involved. The other historical financial and statistical information and data included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package, Prospectus or any Permitted Free Writing Prospectus are, in all material respects, fairly presented. The interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Prospectus and the Pricing Disclosure Package fairly present the information called for in all material respects and have been prepared in accordance with the Commission's rules and guidelines applicable thereto.
(e) Except in each case as otherwise disclosed in the Registration Statement, the Pricing Disclosure Package, the Prospectus or any Permitted Free Writing Prospectus, since the date of the most recent financial statements of the Company included or incorporated by reference in the Registration Statement, the Pricing
Appears in 1 contract
Samples: Underwriting Agreement (Citadel L P)
Representations, Warranties and Agreements of the Company. Each of the The Company represents and the Operating Partnership, jointly and severally, represent and warrant warrants to, and agree agrees with, DBS, on and as each of (i) the date hereof, (ii) each date on which the Company delivers a Transaction Notice (the “Time of Delivery”) or executes and delivers a Terms Agreement, (iii) each Time of Sale (as defined below), (iv) each Settlement Date and (v) each Bring-Down Delivery Date (as defined in Section 6(b)) (each such date listed in (i) through (v), a “Representation Date”), as followsUnderwriters that:
(a) There is An “automatic shelf registration statement” as defined under Rule 405 under the Securities Act of 1933, as amended (the “Securities Act”), on Form S-3 (File No. 333-217991) in respect of the Securities has been filed with the Securities and Exchange Commission (the “Commission”) not earlier than three years prior to the date of this Agreement; such registration statement, and any post-effective amendment thereto, became effective on filing; no stop order preventing or suspending the use effectiveness of the Registration Statement, the Prospectus such registration statement or any Permitted Free Writing Prospectus, and, to the knowledge of the Company, part thereof has been issued and no proceeding for that purpose or pursuant to Section 8A of the Act against the Company or related to the offering has been initiated or threatened by the Commission; , and no notice of objection of the Commission to the use of such Registration Statement registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act has been received by the Company; the Registration various parts of such registration statement, including all exhibits thereto (other than the Statement complied when it initially of Eligibility and Qualification on Form T‑1) and including any prospectus supplement relating to the Securities that is filed with the Commission pursuant to Rule 424(b) under the Securities Act and deemed by Rule 430B under the Securities Act to be part of such registration statement, each as amended at the time such part of the registration statement became effective, complies are hereinafter collectively called the “Registration Statement”; the base prospectus filed as part of the Registration Statement, in the form in which it was most recently filed with the Commission prior to or on the date hereof andof this Agreement, is hereinafter called the “Base Prospectus”; the final prospectus supplement to such prospectus (including the Base Prospectus) relating to the Securities, in the form filed or to be filed with the Commission pursuant to Rule 424(b) under the Securities Act, is hereinafter called the “Prospectus”; any preliminary prospectus (including any preliminary prospectus supplement) relating to the Securities, in the form filed or to be filed with the Commission pursuant to Rule 424(b), is hereinafter called a “Preliminary Prospectus”; the Base Prospectus, as then amended or supplementedsupplemented immediately prior to the Applicable Time (as defined in Section 1(e) hereof), including, without limitation, any Preliminary Prospectus relating to the Securities, is hereinafter called the “Pricing Prospectus”; any reference in this Agreement to the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein that were filed under the Securities Exchange Act of 1934, as of each other Representation Date will complyamended (the “Exchange Act”), in all material respectsor the Securities Act, with as the requirements of the Act; the conditions to the use of Form S-3ASR in connection with the offering and sale of the Shares as contemplated hereby have been satisfied; the Registration Statement meetscase may be, and the offering rules and sale regulations of the Shares as contemplated hereby complies withCommission thereunder, on or before the date of this Agreement or the issue date of any such prospectus; any reference to “amend,” “amendment,” “supplement” or similar terms with respect to the Registration Statement, the requirements of Rule 415 Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus shall be deemed to refer to and include any documents filed under the Exchange Act or the Securities Act, as the case may be, after the date of this Agreement or the issue date of any such prospectus which are deemed to be incorporated by reference therein; and any “issuer free writing prospectus” (as defined in Rule 433 under the Securities Act) relating to the Securities that (x) is required to be filed with the Commission by the Company or (y) is exempt from filing pursuant to Rule 433(d)(5)(i) under the Securities Act because it contains a description of the Securities or the offering that does not reflect the final terms is hereinafter called an “Issuer Free Writing Prospectus”;
(b) The documents incorporated by reference in the Registration Statement, the Pricing Prospectus and the Prospectus (including, without limitation, Rule 415(a)(5the interactive data in eXtensible Business Reporting Language (“XBRL”) included or incorporated by reference therein)); the Prospectus complied or will comply, at the time it was or will be when they were filed with the Commission, and will complyCommission or became effective, as then amended or supplementedthe case may be, as of each Representation Date (other than the date hereof), conformed in all material respects, with respects to the requirements of the Exchange Act or the Securities Act, as the case may be, and the rules and regulations of the Commission thereunder; 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 Registration Statement did notStatement, the Pricing Prospectus and the Prospectus (including, without limitation, the interactive data in XBRL included or incorporated by reference therein), when such documents are filed with the Commission or become effective, as the case may be, will conform in all material respects to the requirements of the time of its initial effectivenessExchange Act or the Securities Act, as applicable, and does the rules and regulations of the Commission thereunder and will not or will not, as then amended or supplemented, as of each Representation Date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made therein in reliance upon and in conformity with information furnished in writing to the Company by any Underwriter through the Representatives expressly for use therein;
(c) The Registration Statement, any Preliminary Prospectus and the Pricing Prospectus conform, and the Prospectus and any post-effective amendments or supplements to the Registration Statement or the Prospectus will conform, in all material respects, to the requirements of the Securities Act and the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and the rules and regulations of the Commission thereunder; and (i) the Registration Statement and any amendment thereto, as of each Representation Date (other than their applicable effective dates relating to the date hereof)Securities, the Prospectus, as then amended or supplemented, together with all of the then issued Permitted Free Writing Prospectuses, if any, did not and will not contain an any untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) any Preliminary Prospectus, the Pricing Prospectus, the Prospectus and any amendment or supplement thereto, as of their issue dates, did not and will not contain any untrue statement of a material fact or omit to state a material fact necessary inin order to make the statements therein, in the light of the circumstances under which they were made, not misleading and (iii) the Prospectus and the Prospectus as amended or supplemented, if applicable, at the Time of Delivery (as defined in Section 2 hereof), 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 this representation and warranty shall not apply to any statements or omissions made therein in reliance upon and in conformity with information furnished in writing to the Company by any Underwriter through the Representatives expressly for use therein;
(d) The Company has been, and continues to be, a “well-known seasoned issuer” (as defined in Rule 405 under the Securities Act), and has not been, and continues not to be, an “ineligible issuer” (as such term is defined in Rule 405 under the Securities Act), in each case as from the earliest time after the filing of the Registration Statement that the Company or another offering participant made a “bona fide” offer (within the meaning of Rule 164(h)(2) under the Securities Act) of the Securities;
(e) As used herein, the “Pricing Disclosure Package” means, collectively, (i) the Pricing Prospectus, (ii) the Pricing Term Sheet prepared and filed pursuant to Section 5(b) hereof and (iii) any other Issuer Free Writing Prospectus that is identified on Schedule II hereto; and the “Applicable Time” means 2:40 p.m. (New York City time) on the date of this Agreement. The Pricing Disclosure Package, as of the Applicable Time, did not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and each Issuer Free Writing Prospectus identified on Schedule II hereto does not conflict with the information contained in the Registration Statement, the Pricing Prospectus or the Prospectus; provided, however, that this representation and warranty shall not apply to statements or omissions made therein in reliance upon and in conformity with information furnished in writing to the Company by any Underwriter through the Representatives expressly for use therein;
Appears in 1 contract
Samples: Underwriting Agreement (Martin Marietta Materials Inc)
Representations, Warranties and Agreements of the Company. Each of the The Company represents and the Operating Partnership, jointly and severally, represent and warrant warrants to, and agree agrees with, DBSXxxxxxx Xxxxx, on and as of (i) the date hereof, (ii) each date on which the Company delivers accepts a Transaction Notice (the a “Time of DeliveryAcceptance”) or the Company executes and delivers a Terms Agreement, (iii) each Time of Sale (as defined below), (iv) each Settlement Date and (v) each Bring-Down Delivery Date (as defined in Section 6(b)) (each such date listed in (i) through (v), a “Representation Date”), as follows:
(a) There is no order preventing or suspending the use of the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus, and, to the knowledge of the Company, no proceeding for that purpose or pursuant to Section 8A of the Act against the Company or related to the offering of the Shares has been initiated or threatened by the Commission; no notice of objection of the Commission to the use of such Registration Statement pursuant to Rule 401(g)(2) under the Act has been received by the Company; the Registration Statement complied when it initially became effective, complies as of the date hereof and, as then amended or supplemented, as of each other Representation Date (other than the date hereof) will comply, in all material respects, with the requirements of the Act; the conditions to the use of Form S-3ASR S-3 in connection with the offering and sale of the Shares as contemplated hereby have been satisfied; the Registration Statement meets, and the offering and sale of the Shares as contemplated hereby complies with, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5)); the Prospectus complied or will comply, at the time it was or will be filed with the Commission, and will comply, as then amended or supplemented, as of each Representation Date (other than the date hereof), in all material respects, with the requirements of the Act; the Registration Statement did not, as of the time of its initial effectiveness, and does not or will not, as then amended or supplemented, as of each Representation Date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; as of each Representation Date (other than the date hereof), the Prospectus, as then amended or supplemented, together with all of the then issued Permitted Free Writing Prospectuses, if any, will not contain an untrue statement of a material fact or omit to state a material fact necessary inin 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 representation or warranty with respect to any statement or omission in the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus in reliance upon and in conformity with information furnished in writing by or on behalf of Xxxxxxx Xxxxx expressly for use in the Registration Statement, the Prospectus or such Permitted Free Writing Prospectus (it being understood that such information consists solely of the information specified in Section 9(b)). As used herein, “Time of Sale” means (i) with respect to each offering of Shares pursuant to this Agreement, the time of Xxxxxxx Xxxxx’x initial entry into contracts with investors for the sale of such Shares and (ii) with respect to each offering of Shares pursuant to any relevant Terms Agreement, the time of sale of such Shares.
Appears in 1 contract
Samples: Distribution Agreement (Cb Richard Ellis Group Inc)
Representations, Warranties and Agreements of the Company. Each of the Company and the Operating Partnership, jointly and severally, represent and warrant to, and agree with, DBS, on and as of (i) the date hereof, (ii) each date on which the Company delivers a Transaction Notice (the “Time of Delivery”) or executes and delivers a Terms Agreement, (iii) each Time of Sale (as defined below), (iv) each Settlement Date and (v) each Bring-Down Delivery Date (as defined in Section 6(b)) (each such date listed in (i) through (v), a “Representation Date”), as follows:
(a) There is no order preventing or suspending the use of the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus, and, to the knowledge of the Company, no proceeding for that purpose or pursuant to Section 8A of the Act against the Company or related to the offering has been initiated or threatened by the Commission; no notice of objection of the Commission to the use of such Registration Statement pursuant to Rule 401(g)(2) under the Act has been received by the Company; the Registration Statement complied when it initially became effective, complies as of the date hereof and, as then amended or supplemented, as of each other Representation Date will comply, in all material respects, with the requirements of the Act; the conditions to the use of Form S-3ASR S–3ASR in connection with the offering and sale of the Shares as contemplated hereby have been satisfied; the Registration Statement meets, and the offering and sale of the Shares as contemplated hereby complies with, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5)); the Prospectus complied or will comply, at the time it was or will be filed with the Commission, and will comply, as then amended or supplemented, as of each Representation Date (other than the date hereof), in all material respects, with the requirements of the Act; the Registration Statement did not, as of the time of its initial effectiveness, and does not or will not, as then amended or supplemented, as of each Representation Date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; as of each Representation Date (other than the date hereof), the Prospectus, as then amended or supplemented, together with all of the then issued Permitted Free Writing Prospectuses, if any, will not contain an untrue statement of a material fact or omit to state a material fact necessary in
Appears in 1 contract
Samples: Equity Distribution Agreement (American Campus Communities Operating Partnership LP)
Representations, Warranties and Agreements of the Company. Each of the The ---------------------------------------------------------- Company represents, warrants and the Operating Partnership, jointly and severally, represent and warrant to, and agree with, DBS, on and as of (i) the date hereof, (ii) agrees with each date on which the Company delivers a Transaction Notice (the “Time of Delivery”) or executes and delivers a Terms Agreement, (iii) each Time of Sale (as defined below), (iv) each Settlement Date and (v) each Bring-Down Delivery Date (as defined in Section 6(b)) (each such date listed in (i) through (v), a “Representation Date”), Underwriter as follows:
(a) There is no order preventing or suspending A registration statement on Form S-3 (No. 333-62957), including a prospectus relating to the use Offered Securities of the Registration StatementCompany for the registration of such securities under the United States Securities Act of 1933, as amended (the Prospectus or any Permitted Free Writing Prospectus"Securities Act"), and, to the knowledge of the Company, no proceeding for that purpose or pursuant to Section 8A of the Act against has (i) been prepared by the Company or related to the offering has been initiated or threatened by the Commission; no notice of objection of the Commission to the use of such Registration Statement pursuant to Rule 401(g)(2) under the Act has been received by the Company; the Registration Statement complied when it initially became effective, complies as of the date hereof and, as then amended or supplemented, as of each other Representation Date will comply, in all -------------- material respects, conformity with the requirements of the Securities Act and the rules and regulations (the "Rules and Regulations") of the United States Securities --------------------- and Exchange Commission (the "Commission") thereunder, (ii) been filed with the ---------- Commission under the Securities Act and (iii) become effective under the Securities Act; and each Indenture has been qualified under the conditions to Trust Indenture Act of 1939, as amended (the use "Trust Indenture Act"). Copies of Form S-3ASR in connection with the offering such ------------------- registration statement and sale of the Shares as contemplated hereby any amendments thereto have been satisfieddelivered by the Company to you. As used in this Agreement, "Effective Date" means the date and -------------- the time as of which such registration statement, or the most recent post- effective amendment thereto, if any, was declared effective by the Commission; "Registration Statement" means the Registration Statement meetsregistration statement in the form it became ----------------------- or becomes, and as the offering and sale of the Shares as contemplated hereby complies withcase may be, the requirements of Rule 415 under the Act effective (including, without limitationif the Company omitted information from the registration statement pursuant to Rule 430A(a) or files a term sheet pursuant to Rule 434 of the Rules and Regulations, Rule 415(a)(5)); the Prospectus complied or will comply, information deemed to be a part of the registration statement at the time it was became effective pursuant to Rule 430A(b) or will be filed with Rule 434(d) of the Commission, Rules and will comply, as then amended or supplemented, as of each Representation Date (other than the date hereofRegulations), including all documents incorporated by reference or deemed to be incorporated by reference therein and the exhibits thereto and, in all material respects, with the requirements event of any amendment thereto or the filing of any abbreviated registration statement pursuant to Rule 462(b) of the Act; Rules and Regulations relating thereto after the Registration Statement did noteffective date of such registration statement, shall also mean (from and after the effectiveness of such amendment or the filing of such abbreviated registration statement) such registration statement as of the time of its initial effectiveness, and does not or will not, as then amended or supplemented, as of each Representation Date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; as of each Representation Date (other than the date hereof), the Prospectus, as then amended or supplementedso amended, together with all any such abbreviated registration statement; "Base Prospectus" means the prospectus included in the --------------- Registration Statement; "Preliminary Prospectus" means any preliminary form of ---------------------- prospectus supplement specifically relating to designated Offered Securities in the form filed with, or transmitted for filing to the Commission pursuant to Rule 424 of the then issued Permitted Free Writing ProspectusesRules and Regulations, together with any accompanying prospectus; "Prospectus Supplement" means any prospectus supplement specifically --------------------- relating to designated Offered Securities in the form first filed with, or transmitted for filing to, the Commission pursuant to Rule 424 under the Securities Act following the execution of a Terms Agreement with respect to such Offered Securities; "Prospectus" means the Base Prospectus together with the ---------- Prospectus Supplement specifically relating to designated Offered Securities in the form first filed with, or transmitted for filing to, the Commission pursuant to Rule 424 under the Securities Act following the execution of a Terms Agreement with respect to such Offered Securities, except that if such Base Prospectus is amended or supplemented on or prior to the date on which such Prospectus Supplement was first filed pursuant to Rule 424, the term "Prospectus" shall refer to the Base Prospectus as so amended or supplemented and as supplemented by such Prospectus Supplement; "Base Prospectus," --------------- "Prospectus," "Preliminary Prospectus" and "Prospectus Supplement" shall include ----------- ---------------------- ---------- ---------- in each case the documents, if any, will not contain an untrue statement filed by the Company with the Commission pursuant to the United States Securities Exchange Act of a material fact 1934, as amended (the "Exchange Act"), and incorporated by reference therein; and "supplement" and ------------- ---------- "amendment" shall be deemed to refer to and include any documents incorporated ---------- by reference pursuant to Item 12 of Form S-3 under the Securities Act that are filed subsequent to the date of the Base Prospectus by the Company with the Commission pursuant to the Exchange Act. Any reference to any amendment to the Registration Statement shall be deemed to include any annual report of the Company filed with the Commission pursuant to Section 13(a) or omit 15(d) of the Exchange Act after the Effective Date that is incorporated by reference in the Registration Statement. Any reference herein to state a material fact necessary information "contained in," "contemplated by," "described in," "disclosed in," "included in" ------------ --------------- ------------ ------------ ----------- or "set forth in" any of the foregoing documents, or words of similar effect, --------- -- shall be deemed to include the documents incorporated or deemed to be incorporated by reference therein.
Appears in 1 contract
Representations, Warranties and Agreements of the Company. Each As of the --------------------------------------------------------- date hereof, the Company represents and the Operating Partnership, jointly and severally, represent and warrant warrants to, and agree agrees with, DBS, on and as of (i) the date hereof, (ii) each date on which the Company delivers a Transaction Notice (the “Time of Delivery”) or executes and delivers a Terms Agreement, (iii) each Time of Sale (as defined below), (iv) each Settlement Date and (v) each Bring-Down Delivery Date (as defined in Section 6(b)) (each such date listed in (i) through (v), a “Representation Date”), as followsInitial Purchasers that:
(a) There is no order preventing or suspending The Preliminary Offering Memorandum and the use of Offering Memorandum (including the Registration Statement, information incorporated by reference therein (the Prospectus or any Permitted Free Writing Prospectus, and, to the knowledge of the Company, no proceeding for that purpose or pursuant to Section 8A of the Act against the Company or related to the offering has been initiated or threatened by the Commission; no notice of objection of the Commission to the use of such Registration Statement pursuant to Rule 401(g)(2"Incorporated Documents") under the Act has been received by the Company; the Registration Statement complied when it initially became effective, complies as of the date hereof and, as then amended or supplemented, as of each other Representation Date will comply, in all material respects, with the requirements of the Act; the conditions to the use of Form S-3ASR in connection with the offering and sale of the Shares as contemplated hereby have been satisfied; the Registration Statement meetsdo not, and the offering and sale of the Shares as contemplated hereby complies with, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5)); the Prospectus complied any supplement or amendment to them will comply, at the time it was or will be filed with the Commission, and will comply, as then amended or supplemented, as of each Representation Date (other than the date hereof), in all material respects, with the requirements of the Act; the Registration Statement did ---------------------- not, as of the time of its initial effectiveness, and does not or will not, as then amended or supplemented, as of each Representation Date, contain an any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading; , except that the representations and warranties contained in this paragraph (a) shall not apply to statements in or omissions from the Preliminary Offering Memorandum or the Offering Memorandum (or any supplement or amendment thereto) based upon information relating to the Initial Purchasers furnished to the Company in writing by the Initial Purchasers expressly for use therein. No stop order preventing the use of the Preliminary Offering Memorandum or the Offering Memorandum, or any amendment or supplement thereto, or any order asserting that any of the transactions contemplated by this Agreement are subject to the registration requirements of the Act, has been received by the Company, and, to the knowledge of the Company, no such stop or order has been issued. The Incorporated Documents, at the time they were or hereafter are filed or last amended, as the case may be, with the Commission, complied and will comply in all material respects with the requirements of the Exchange Act.
(b) Each of the Company and its subsidiaries has been duly incorporated, is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation and has the corporate power and authority to carry on its business as described in the Preliminary Offering Memorandum and the Offering Memorandum and to own, lease and operate its properties, and each Representation Date is duly qualified and is in good standing as a foreign corporation authorized to do business in each jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the business, prospects, financial condition or results of operations of the Company and its subsidiaries, taken as a whole (other than a "Material Adverse Effect"). -----------------------
(c) All outstanding shares of capital stock of the date hereofCompany have been duly authorized and validly issued and are fully paid, non-assessable and not subject to any preemptive or similar rights.
(e) This Agreement has been duly authorized, executed and delivered by the Company.
(f) The Indenture has been duly authorized by the Company and, on the Closing Date, will have been validly executed and delivered by the Company. When the Indenture has been duly executed and delivered by the Company and the Trustee, the Indenture will be a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms except as (i) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (ii) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability. On the Closing Date, the Indenture will conform in all material respects to the requirements of the Trust Indenture Act of 1939, as amended (the "TIA" or "Trust Indenture Act"), and the Prospectus--- ------------------- rules and regulations of the Commission applicable to an indenture which is qualified thereunder.
(g) The Debentures have been duly authorized and, on the Closing Date, will have been validly executed and delivered by the Company. When the Debentures have been issued, executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Initial Purchasers in accordance with the terms of this Agreement, the Debentures will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Company, enforceable in accordance with their terms except as (i) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (ii) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability. On the Closing Date, the Debentures will conform as to legal matters to the description thereof contained in the Offering Memorandum.
(h) The Debentures are convertible into Common Stock in accordance with the terms of the Indenture; the shares of Common Stock initially issuable upon conversion of the Debentures have been duly authorized and reserved for issuance upon such conversion and, when issued upon such conversion, will be validly issued, fully paid and nonassessable, will conform to the description thereof contained in the Offering Memorandum and will be duly authorized for listing on the NYSE, subject to notice of official issuance; the Company has the authorized and outstanding capital stock as set forth in the Offering Memorandum; and the stockholders of the Company or other holders of the Company's securities have no pre-emptive or similar rights with respect to the Debentures or the Common Stock issuable upon conversion of the Debentures.
(i) The Registration Rights Agreement has been duly authorized by the Company and, on the Closing Date, will have been duly executed and delivered by the Company. When the Registration Rights Agreement has been duly executed and delivered by the Company and the other parties thereto, the Registration Rights Agreement will be a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms except as (i) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (ii) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability. On the Closing Date, the Registration Rights Agreement will conform as to legal matters to the description thereof in the Offering Memorandum.
(j) Neither the Company nor any of its subsidiaries is in violation of its respective charter or by-laws or in default in the performance of any obligation, agreement, covenant or condition contained in any indenture, loan agreement, mortgage, lease or other agreement or instrument that is material to the Company and its subsidiaries, taken as a whole, to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries or their respective property is bound.
(k) The Company and its subsidiaries have good and marketable title to all real property and good and marketable title to all personal property owned by them which is material to the business of the Company and its subsidiaries, taken as in whole, in each case free and clear of all Liens and defects, except such as are described on Schedule B(2) hereto, or such as do not materially affect the value of such property and do not interfere with the use made and proposed to be made of such property by the Company and its subsidiaries; and any real property and buildings held under lease by the Company and its subsidiaries are held by them under valid, subsisting and enforceable leases with such exceptions as are not material and do not interfere with the use made and proposed to be made of such property and buildings by the Company and its subsidiaries, in each case except as described in the Offering Memorandum.
(l) The execution, delivery and performance of the Operative Documents by the Company, compliance by the Company with all provisions hereof and thereof and the consummation of the transactions contemplated hereby and thereby will not (i) require any consent, approval, authorization or other order of, or qualification with, any court or governmental body or agency (except such as may be required under the securities or Blue Sky laws of the various states), (ii) conflict with or constitute a breach of any of the terms or provisions of, or a default under, the charter or by-laws of the Company or any of its subsidiaries or any indenture, loan agreement, mortgage, lease or other agreement or instrument that is material to the Company and its subsidiaries, taken as a whole, to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries or their respective property is bound, (iii) violate or conflict with any applicable law or any rule, regulation, judgment, order or decree of any court or any governmental body or agency having jurisdiction over the Company, any of its subsidiaries or their respective property, (iv) result in the imposition or creation of (or the obligation to create or impose) a Lien under, any agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries or their respective property is bound, or (v) result in the termination, suspension or revocation of any Authorization (as defined below) of the Company or any of its subsidiaries or result in any other impairment of the rights of the holder of any such Authorization.
(m) There are no legal or governmental proceedings pending or, to the knowledge of the Company, threatened to which the Company or any of its subsidiaries is or could be a party or to which any of their respective property is or could be subject, which might result, singly or in the aggregate, in a Material Adverse Effect.
(n) Neither the Company nor any of its subsidiaries has violated any foreign, federal, state or local law or regulation relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants ("Environmental Laws"), any ------------------ provisions of the Employee Retirement Income Security Act of 1974, as then amended ("ERISA"), or supplementedany provisions of the Foreign Corrupt Practices Act or the rules ----- and regulations promulgated thereunder, together except for such violations which, singly or in the aggregate, would not have a Material Adverse Effect.
(o) There are no costs or liabilities associated with Environmental Laws (including, without limitation, any capital or operating expenditures required for clean-up, closure of properties or compliance with Environmental Laws or any Authorization, any related constraints on operating activities and any potential liabilities to third parties) which would, singly or in the aggregate, have a Material Adverse Effect.
(p) Each of the Company and its subsidiaries has such permits, licenses, consents, exemptions, franchises, authorizations and other approvals (each, an "Authorization") of, and has made all filings with and notices to, all ------------- governmental or regulatory authorities and self-regulatory organizations and all courts and other tribunals, including without limitation, under any applicable Environmental Laws, as are necessary to own, lease, license and operate its respective properties and to conduct its business, except where the failure to have any such Authorization or to make any such filing or notice would not, singly or in the aggregate, have a Material Adverse Effect. Each such Authorization is valid and in full force and effect and each of the Company and its subsidiaries is in compliance with all the terms and conditions thereof and with the rules and regulations of the then issued Permitted Free Writing Prospectusesauthorities and governing bodies having jurisdiction with respect thereto; and no event has occurred (including, if anywithout limitation, will not the receipt of any notice from any authority or governing body) which allows or, after notice or lapse of time or both, would allow, revocation, suspension or termination of any such Authorization or results or, after notice or lapse of time or both, would result in any other impairment of the rights of the holder of any such Authorization; and such Authorizations contain an untrue statement no restrictions that are burdensome to the Company or any of its subsidiaries; except where such failure to be valid and in full force and effect or to be in compliance, the occurrence of any such event or the presence of any such restriction would not, singly or in the aggregate, have a material fact or omit to state a material fact necessary inMaterial Adverse Effect.
Appears in 1 contract
Samples: Purchase Agreement (Health Management Associates Inc)
Representations, Warranties and Agreements of the Company. Each of the The Company represents and the Operating Partnership, jointly and severally, represent and warrant warrants to, and agree agrees with, DBSeach Underwriter, on and as of (i) the date hereof, Time of Sale and (ii) each date on which the Company delivers a Transaction Notice (the “Time of Delivery”) or executes and delivers a Terms AgreementClosing Date, (iii) each Time of Sale (as defined below), (iv) each Settlement Date and (v) each Bring-Down Delivery Date (as defined in Section 6(b)) applicable (each such date listed in (i) through and (vii), a “Representation Date”), as follows:
(a) There No order preventing or suspending the use of any Preliminary Prospectus has been issued by the Commission, and each Preliminary Prospectus included in the Pricing Disclosure Package, at the time of filing thereof, complied in all material respects with the Securities Act, and no Preliminary Prospectus, at the time of filing thereof, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company makes no representation and warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter expressly for use in any Preliminary Prospectus, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in Section 6(b) hereof. The Pricing Disclosure Package as of the Time of Sale did not, and as of the Closing Date, 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 that the Company makes no representation and warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter expressly for use in such Pricing Disclosure Package, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in Section 6(b) hereof. The Registration Statement is an “automatic shelf registration statement” as defined under Rule 405 of the Securities Act that has been filed with the Commission not earlier than three years prior to the date hereof; there is no order preventing or suspending the use of the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus, and, to the knowledge of the Company, no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering has been initiated or threatened by the Commission; no notice of objection of the Commission to the use of such Registration Statement pursuant to Rule 401(g)(2) under the Securities Act has been received by the Company; the Registration Statement complied when it initially became effective, complies as of the date hereof and, as then amended or supplemented, as of each other Representation Date will comply, in all material respects, with the requirements of the Securities Act and the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Trust Indenture Act”); the conditions to the use of Form S-3ASR S-3 in connection with the offering and sale of the Shares Securities as contemplated hereby have been satisfied; the Registration Statement meets, and the offering and sale of the Shares Securities as contemplated hereby complies with, the requirements of Rule 415 under the Securities Act (including, without limitation, Rule 415(a)(5)); the Prospectus complied or will comply, at the time it was or will be filed with the Commission, and will comply, as then amended or supplemented, as of each Representation Date (other than the date hereof), in all material respects, with the requirements of the Securities Act; the Registration Statement did not, as of the time of its initial effectiveness, and does not or will not, as then amended or supplemented, as of each Representation Date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; as of each Representation Date (other than the date hereof), the Prospectus, as then amended or supplemented, together with all of the then issued Permitted Free Writing Prospectuses, if any, will not contain an untrue statement of a material fact or omit to state a material fact necessary inin 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 representation or warranty with respect to (i) that part of the Registration Statement that constitutes the Statement of Eligibility and Qualification (Form T-1) of the Trustee under the Trust Indenture Act or (ii) any statement or omission in the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus in reliance upon and in conformity with information concerning any Underwriter and furnished in writing by or on behalf of such Underwriter expressly for use in the Registration Statement, the Prospectus or such Permitted Free Writing Prospectus (it being understood that such information consists solely of the information specified in Section 6(b)).
(b) Prior to the execution of this Agreement, the Company has not, directly or indirectly, offered or sold any of the Securities by means of any “prospectus” (within the meaning of the Securities Act) or used any “prospectus” (within the meaning of the Securities Act) in connection with the offer or sale of the Securities, in each case other than the Basic Prospectus and the Preliminary Prospectus. The Company represents and agrees that, unless it obtains the prior consent of the Representative, it has not made and will not make any offer relating to the Securities that would constitute an “issuer free writing prospectus” (as defined in Rule 433 under the Securities Act) or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under the Securities Act). Any such free writing prospectus relating to the Securities consented to by the Representative is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has complied and will comply in all material respects with the requirements of Rule 433 under the Securities Act applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The conditions set forth in one or more of subclauses (i) through (iv), inclusive, of Rule 433(b)(1) under the Securities Act are satisfied, and the registration statement relating to the offering of the Securities contemplated hereby, as initially filed with the Commission, includes a prospectus that, other than by reason of Rule 433 or Rule 431 under the Securities Act, satisfies the requirements of Section 10 of the Securities Act; neither the Company nor any Underwriter is disqualified, by reason of Rule 164(f) or (g) under the Securities Act, from using, in connection with the offer and sale of the Securities, “free writing prospectuses” (as defined in Rule 405 under the Securities Act) pursuant to Rules 164 and 433 under the Securities Act; the Company is not an “ineligible issuer” (as defined in Rule 405 under the Securities Act) as of the eligibility determination date for purposes of Rules 164 and 433 under the Securities Act with respect to the offering of the Securities contemplated by the Registration Statement.
(c) The Incorporated Documents, when they were filed with the Commission, conformed in all material respects to the requirements of the Securities Act or the Exchange Act, as applicable, 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, in the light of the circumstances under which they were made, not misleading; and any further documents so filed and incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus, when such documents become effective or are filed with the Commission, as the case may be, will conform in all material respects to the requirements of the Securities Act or the Exchange Act, as applicable, and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(d) The financial statements and the related notes thereto included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus comply in all material respects with the applicable requirements of the Securities Act and the Exchange Act, as applicable, and present fairly the financial position of the Company and its consolidated subsidiaries at the dates indicated and their results of operations, stockholders’ equity and cash flows for the periods specified, and such financial statements have been prepared in conformity with the generally accepted accounting principles in the United States (“GAAP”) applied on a consistent basis throughout the periods involved. The other historical financial and statistical information and data included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus are, in all material respects, fairly presented. The interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Prospectus and the Pricing Disclosure Package fairly present the information called for in all material respects and have been prepared in accordance with the Commission’s rules and guidelines applicable thereto.
(e) Except in each case as otherwise disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus, since the date of the most recent financial statements of the Company included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus, (i) there has not been any material change in the capital stock or long-term debt of the Company or any of its subsidiaries and there has not been a Material Adverse Effect (as defined below), (ii) neither the Company nor any of its subsidiaries has entered into any transaction or agreement that is material to the Company and its subsidiaries, taken as a whole, or incurred any liability or obligation, direct or contingent, except for such liabilities or obligations that, individually or in the aggregate, would not have a Material Adverse Effect and (iii) neither the Company nor any of its subsidiaries has sustained any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor disturbance or dispute or any action, order or decree of any court or arbitrator or governmental or regulatory authority, except for such losses that, individually or in the aggregate, would not have a Material Adverse Effect. As used herein, “Material Adverse Effect” means a material adverse effect on the earnings, business, properties, condition (financial or otherwise), results of operations or prospects of the Company and its subsidiaries taken as a whole.
Appears in 1 contract
Representations, Warranties and Agreements of the Company. Each of the The Company represents and the Operating Partnership, jointly and severally, represent and warrant warrants to, and agree agrees with, DBSeach Underwriter and the Selling Stockholders, on and as of (i) the date hereofTime of Sale, (ii) each date on which the Company delivers a Transaction Notice (the “Time of Delivery”) or executes Closing Date and delivers a Terms Agreement, (iii) each Time of Sale (Additional Closing Date, as defined below), (iv) each Settlement Date and (v) each Bring-Down Delivery Date (as defined in Section 6(b)) applicable (each such date listed in (i) through (viii), a “Representation Date”), as follows:
(a) There No order preventing or suspending the use of any Preliminary Prospectus has been issued by the Commission, and each Preliminary Prospectus included in the Pricing Disclosure Package, at the time of filing thereof, complied in all material respects with the Securities Act, and no Preliminary Prospectus, at the time of filing thereof, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company makes no representation and warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in any Preliminary Prospectus, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in Section 10(c) hereof. The Pricing Disclosure Package as of the Time of Sale did not, and as of the Closing Date and, if applicable, as of any Additional Closing Date, as the case may be, 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 that the Company makes no representation and warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in such Pricing Disclosure Package, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in Section 10(c) hereof. The Registration Statement is an “automatic shelf registration statement” as defined under Rule 405 of the Securities Act that has been filed with the Commission not earlier than three years prior to the date hereof; there is no order preventing or suspending the use of the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus, and, to the knowledge of the Company, no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering has been initiated or threatened by the Commission; no notice of objection of the Commission to the use of such Registration Statement pursuant to Rule 401(g)(2) under the Securities Act has been received by the Company; the Registration Statement complied when it initially became effective, complies as of the date hereof and, as then amended or supplemented, as of each other Representation Date will comply, in all material respects, with the requirements of the Securities Act; the conditions to the use of Form S-3ASR S-3 in connection with the offering and sale of the Shares as contemplated hereby have been satisfied; the Registration Statement meets, and the offering and sale of the Shares as contemplated hereby complies with, the requirements of Rule 415 under the Securities Act (including, without limitation, Rule 415(a)(5)); the Prospectus complied or will comply, at the time it was or will be filed with the Commission, and will comply, as then amended or supplemented, as of each Representation Date (other than the date hereof), in all material respects, with the requirements of the Securities Act; the Registration Statement did not, as of the time of its initial effectiveness, and does not or will not, as then amended or supplemented, as of each Representation Rep resentation Date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; as of each Representation Date (other than the date hereof), the Prospectus, as then amended or supplemented, together with all of the then issued Permitted Free Writing Prospectuses, if any, will not contain an untrue statement of a material fact or omit to state a material fact necessary inin 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 representation or warranty with respect to any statement or omission in the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus in reliance upon and in conformity with information concerning any Underwriter and furnished in writing by or on behalf of such Underwriter through the Representatives expressly for use in the Registration Statement, the Prospectus or such Permitted Free Writing Prospectus (it being understood that such information consists solely of the information specified in Section 10(c)).
(b) Prior to the execution of this Agreement, the Company has not, directly or indirectly, offered or sold any of the Shares by means of any “prospectus” (within the meaning of the Securities Act) or used any “prospectus” (within the meaning of the Securities Act) in connection with the offer or sale of the Shares, in each case other than the Basic Prospectus and the Preliminary Prospectus. The Company represents and agrees that, unless it obtains the prior consent of the Representatives, it has not made and will not make any offer relating to the Shares that would constitute an “issuer free writing prospectus” (as defined in Rule 433 under the Securities Act) or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under the Securities Act). Any such free writing prospectus relating to the Shares consented to by the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has complied and will comply in all material respects with the requirements of Rule 433 under the Securities Act applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The conditions set forth in one or more of subclauses (i) through (iv), inclusive, of Rule 433(b)(1) under the Securities Act are satisfied, and the registration statement relating to the offering of the Shares contemplated hereby, as initially filed with the Commission, includes a prospectus that, other than by reason of Rule 433 or Rule 431 under the Securities Act, satisfies the requirements of Section 10 of the Securities Act; neither the Company nor any Underwriter is disqualified, by reason of Rule 164(f) or (g) under the Securities Act, from using, in connection with the offer and sale of the Shares, “free writing prospectuses” (as defined in Rule 405 under the Securities Act) pursuant to Rules 164 and 433 under the Securities Act; the Company is not an “ineligible issuer” (as defined in Rule 405 under the Securities Act) as of the eligibility determination date for purposes of Rules 164 and 433 under the Securities Act with respect to the offering of the Shares contemplated by the Registration Statement.
(c) The Incorporated Documents, when they were filed with the Commission, conformed in all material respects to the requirements of the Securities Act or the Exchange Act, as applicable, 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, in light of the circumstances under which they were made, not misleading; and any further documents so filed and incorporated by reference in the Registration Statement, the Pricing Disclosure Package, the Prospectus or any Permitted Free Writing Prospectus, when such documents become effective or are filed with the Commission, as the case may be, will conform in all material respects to the requirements of the Securities Act or the Exchange Act, as applicable, and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(d) The financial statements and the related notes thereto included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package, the Prospectus and any Permitted Free Writing Prospectus comply in all material respects with the applicable requirements of the Securities Act and the Exchange Act, as applicable, and present fairly the financial position of the Company and its consolidated subsidiaries at the dates indicated and their results of operations, stockholders’ equity and cash flows for the periods specified, and such financial statements have been prepared in conformity with the generally accepted accounting principles in the United States (“GAAP”) applied on a consistent basis throughout the periods involved. The other historical financial and statistical information and data included in the Registration Statement, the Pricing Disclosure Package, Prospectus or any Permitted Free Writing Prospectus are, in all material respects, fairly presented.
(e) Except in each case as otherwise disclosed in the Registration Statement, the Pricing Disclosure Package, the Prospectus and any Permitted Free Writing Prospectus, since the date of the most recent financial statements of the Company included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package, the Prospectus and any Permitted Free Writing Prospectus, (i) there has not been any material change in the capital stock or long-term debt of
Appears in 1 contract
Representations, Warranties and Agreements of the Company. Each of the The Company represents and the Operating Partnership, jointly and severally, represent and warrant towarrants to you, and agree withagrees with you, DBS, on and as of (i) the date hereof, (ii) each date on which the Company delivers a Transaction Notice (the “Time of Delivery”) or executes and delivers a Terms Agreement, (iii) each Time of Sale (as defined below), (iv) each Settlement Date and (v) each Bring-Down Delivery Date (as defined in Section 6(b)) (each such date listed in (i) through (v), a “Representation Date”), as followsthat:
(a) There is no The Registration Statement, including the Prospectus, has been prepared by the Company in conformity with the requirements of the Securities Act and the Rules and Regulations of the Commission thereunder and has been filed with the Commission; such amendments to such Registration Statement and Prospectus and such abbreviated registration statements pursuant to Rule 462(b) of the Rules and Regulations as may have been required prior to the date hereof have been similarly prepared and filed with the Commission; and the Company will file such additional amendments to such Registration Statement and Prospectus and such abbreviated registration statements as may hereafter be required. Copies of such Registration Statement and Prospectus, including all amendments thereto and all documents incorporated by reference therein, and of any abbreviated registration statement pursuant to Rule 462(b) of the Rules and Regulations have been or, if filed will be, delivered to you and your counsel.
(b) The Commission has not issued any order refusing or suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Prospectus or instituted proceedings for that purpose; the Prospectus, including the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus, and, to the knowledge of the Company, no proceeding for that purpose or pursuant to Section 8A of the Act against the Company or related to the offering has been initiated or threatened by the Commission; no notice of objection of the Commission to the use of such Registration Statement pursuant to Rule 401(g)(2) under the Act has been received by the Company; the Registration Statement complied when it initially became effective, complies as of the date hereof and, as then amended or supplemented, as of each other Representation Date if applicable, will comply, comply in all material respects, respects with the requirements Securities Act, the Exchange Act and the TIA, and the applicable Rules and Regulations of the Act; the conditions to the use of Form S-3ASR in connection with the offering and sale of the Shares as contemplated hereby have been satisfiedCommission thereunder; the Registration Statement meetsStatement, when it became effective, did not contain and the offering and sale of the Shares as contemplated hereby complies with, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5)); the Prospectus complied or will comply, at the time it was or will be filed with the Commission, and will comply, as then amended or supplemented, as of each Representation Date (other than the date hereof)if applicable, in all material respectswill not contain, with the requirements of the Act; the Registration Statement did not, as of the time of its initial effectiveness, and does not or will not, as then amended or supplemented, as of each Representation Date, contain an any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; as of each Representation Date (other than and neither the date hereof)Prospectus nor the Registration Statement contains, the Prospectusand, as then amended or supplemented, together with all of the then issued Permitted Free Writing Prospectuses, if anyapplicable, will not contain an any untrue statement of a material fact or omit to state a material fact necessary into make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that none of the representations and warranties contained in this subparagraph (b) shall apply to information contained in or omitted from the Registration Statement or Prospectus, or any amendment or supplement thereto, in reliance upon, and in conformity with, written information relating to you furnished to the Company by you specifically for use in the preparation thereof. The Incorporated Documents heretofore filed, when they were filed (or, if any amendment with respect to any such document was filed, when such amendment was filed), conformed in all material respects with the requirements of the Exchange Act and the Rules and Regulations of the Commission thereunder; no such document when it was filed (or, if an amendment with respect to any such document was filed, when such amendment was filed), contained any 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 no such further
Appears in 1 contract
Representations, Warranties and Agreements of the Company. Each of the The Company represents and the Operating Partnership, jointly and severally, represent and warrant warrants to, and agree agrees with, DBSDeutsche Bank, on and as of (i) the date hereof, (ii) each date on which the Company delivers and Deutsche Bank agree upon a Transaction Notice (the a “Time of DeliveryAcceptance”) or the Company executes and delivers a Terms Agreement, (iii) each Time of Sale (as defined below), (iv) each Settlement Date and (v) each Bring-Down Delivery Date (as defined in Section 6(b)) (each such date listed in (i) through (v), a “Representation Date”), as follows:
(a) There is no order preventing or suspending the use of the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus, and, to the knowledge of the Company, no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering has been initiated or threatened by the Commission; no notice of objection of the Commission to the use of such Registration Statement pursuant to Rule 401(g)(2) under the Securities Act has been received by the Company; the Registration Statement complied when it initially became effective, complies as of the date hereof and, as then amended or supplemented, as of each other Representation Date (other than the date hereof) will comply, in all material respects, with the requirements of the Securities Act; the conditions to the use of Form S-3ASR S-3 in connection with the offering and sale of the Shares as contemplated hereby have been satisfied; the Registration Statement meets, and the offering and sale of the Shares as contemplated hereby complies with, the requirements of Rule 415 under the Securities Act (including, without limitation, Rule 415(a)(5)); the Prospectus complied or will comply, at the time it was or will be filed with the Commission, and will comply, as then amended or supplemented, as of each Representation Date (other than the date hereof), in all material respects, with the requirements of the Securities Act; the Registration Statement did not, as of the time of its initial effectiveness, and does not or will not, as then amended or supplemented, as of each Representation Date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; as of each Representation Date (other than the date hereof), the Prospectus, as then amended or supplemented, together with all of the then issued Permitted Free Writing Prospectuses, if any, will not contain an untrue statement of a material fact or omit to state a material fact necessary inin order to make the statements therein, in the light of the circumstances under which they were made, not misleading; the Prospectus, as of its date, did not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no representation or warranty with respect to any statement or omission in the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus in reliance upon and in conformity with information
Appears in 1 contract
Representations, Warranties and Agreements of the Company. Each of the The Company represents and the Operating Partnership, jointly warrants to and severally, represent and warrant to, and agree with, DBS, on and as of (i) the date hereof, (ii) agrees with each date on which the Company delivers a Transaction Notice (the “Time of Delivery”) or executes and delivers a Terms Agreement, (iii) each Time of Sale (as defined below), (iv) each Settlement Date and (v) each Bring-Down Delivery Date (as defined in Section 6(b)) (each such date listed in (i) through (v), a “Representation Date”), as followsUnderwriter that:
(a) There A registration statement on Form S-1 (File No. 33-________) with respect to the Shares, including a preliminary form of prospectus, copies of which have heretofore been delivered to you, has been prepared by the Company in conformity with the requirements of the Securities Act of 1933, as amended (the "Act"), and the rules and regulations (the "Rules and Regulations") of the Securities and Exchange Commission (the "Commission") under the Act, and has been filed with the Commission under the Act; such amendment or amendments to such registration statement, copies of which have heretofore been delivered to you, as may have been made prior to the date of this Agreement have been so prepared and filed; and the Company has so prepared and proposes so to file in a timely manner after the effective date of such registration statement the final form of prospectus. Such registration statement (including all exhibits thereto), as finally amended and revised as of the time the Underwriters first offer the Shares for sale to the public together with information, if any, which is permitted to be, and is, subsequently filed pursuant to Rule 430A of the Rules and Regulations, is herein referred to as the "Registration Statement". Such prospectus in the form filed pursuant to Rule 424(b) of the Rules and Regulations, or, if no final prospectus is filed with the Commission pursuant to Rule 424(b), in such form as such final prospectus is included in the Registration Statement, is herein referred to as the "Prospectus". Each preliminary form of prospectus is herein referred to as a "Preliminary Prospectus".
(b) The Commission has not issued any order preventing or suspending the use of the Registration Statement, the Prospectus or any Permitted Free Writing Preliminary Prospectus, and, to the knowledge of the Company, no proceeding for that purpose or pursuant to Section 8A of the Act against the Company or related to the offering has been initiated or threatened by the Commission; no notice of objection of the Commission to the use of such Registration Statement pursuant to Rule 401(g)(2) under the Act has been received by the Company; the Registration Statement complied when it initially became effective, complies as of the date hereof and, as then amended or supplemented, as of each other Representation Date will comply, in all material respects, with the requirements of the Act; the conditions to the use of Form S-3ASR in connection with the offering and sale of the Shares as contemplated hereby have been satisfied; the Registration Statement meets, and the offering and sale of the Shares as contemplated hereby complies with, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5)); the Prospectus complied or will comply, at the time it was or will be filed with the Commission, and will comply, as then amended or supplemented, as of each Representation Date (other than the date hereof), in all material respects, with the requirements of the Act; the Registration Statement did not, as of . At the time of its initial effectiveness, and does not or will not, as then amended or supplemented, as filing of each Representation DatePreliminary Prospectus, contain an such prospectus did not include any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading; . When the Registration Statement becomes effective and at all times subsequent thereto up to and at each Closing Date (hereinafter defined) (i) the Registration Statement and Prospectus and any amendments or supplements thereto will contain as of each Representation Date their respective dates all material statements and information which are required to be included therein in accordance with the Act and Rules and Regulations and will in all material respects conform to the requirements of the Act and the Rules and Regulations, and (other than ii) neither the date hereof), Registration Statement nor the Prospectus, as then amended nor any amendment or supplemented, together with all of the then issued Permitted Free Writing Prospectuses, if anysupplement thereto, will not contain an untrue statement include as of a material fact or omit to state a material fact necessary intheir respective dates any untrue
Appears in 1 contract
Representations, Warranties and Agreements of the Company. Each of the (a) The Company hereby represents and the Operating Partnership, jointly and severally, represent and warrant warrants to, and agree agrees with, DBS, on and as of (i) the date hereof, (ii) each date on which the Company delivers a Transaction Notice (the “Time of Delivery”) or executes and delivers a Terms Agreement, (iii) each Time of Sale (as defined below), (iv) each Settlement Date and (v) each Bring-Down Delivery Date (as defined in Section 6(b)) (each such date listed in (i) through (v), a “Representation Date”), Executive as follows:
(ai) There the Executive is no order preventing and shall continue to be covered and insured up to the maximum limits provided by all insurance which the Company maintains to indemnify its directors and officers (and to indemnify the Company for any obligations which it incurs as a result of its undertaking to indemnify its officers and directors);
(ii) that the Company will continue to maintain in full force and effect such insurance, at not less than its present limits, in effect throughout the Term of this Agreement (or suspending the use any renewal or continuation hereof);
(iii) this Agreement, and each of the Registration Statementterms and provisions hereof, including, without limitation the Prospectus undertakings with respect to payment, indemnification and maintenance of insurance set forth in Sections 6 and 7 hereof, do not violate or conflict with any Permitted Free Writing Prospectus, and, to provisions of the knowledge Certificate of Incorporation and Bylaws of the Company, no proceeding for that purpose (B) any agreement by which the Company is bound, or pursuant to Section 8A (C) any federal, state or local law, rule, regulation or judicial order; this Agreement has been duly and validly authorized, executed and delivered by the Company, and is a legal, valid and binding obligation of the Act Company, enforceable against the Company or related in accordance with its terms;
(iv) the Company has all power and authority necessary to enter into this Agreement in accordance with its terms;
(v) this Agreement, and the offering has been initiated or threatened employment of the Executive by the Commission; no notice Company have been duly approved by the Board of objection Directors of the Commission Company;
(vi) during the Term hereof, the Company will not change the corporate title of the Executive or alter or diminish the powers, duties and authority of the Executive in his position as Chairman and Chief Executive Officer of the Company (or any subsidiary of the Company), nor will the Company change by more than twenty-five (25) miles the location of the offices in which Executive's services are to the use of be performed (i.e., Stamford, Connecticut), or take any other action which would constitute "Good Reason" as defined in Section 8 (c) hereof if such Registration Statement pursuant action were to Rule 401(g)(2occur following a "Change in Control" as defined in Section 8 (c) under the Act has been received hereof;
(vii) except as otherwise prohibited by law or by the Company; 's Certificate of Incorporation and By-laws, the Registration Statement complied when it initially became effectiveCompany shall indemnify and hold harmless the Executive to the fullest extent permitted by applicable law, complies as of the date hereof and, as then amended or supplemented, as of each other Representation Date will comply, in all material respects, with the requirements of the Act; the conditions shall advance to the use Executive the reasonable costs and expenses, including, but not limited to, the reasonable attorneys fees of Form S-3ASR Executive's attorneys, incurred by the Executive in connection with investigating and/or defending any claim or other matter covered by the offering Company's indemnification obligation, subject to receiving a written undertaking from the Executive to repay such amounts if and sale to the extent that a court or other tribunal of competent jurisdiction subsequently determines that the Executive was not entitled to indemnification hereunder. To the extent that the Company's Certificate of Incorporation, By-laws, resolutions of Company's Board of Directors or stockholders, or other corporate acts, agreements or instruments of the Shares Company, each as contemplated hereby have been satisfied; the Registration Statement meets, and the offering and sale of the Shares as contemplated hereby complies with, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5)); the Prospectus complied or will comply, at the time it was or will be filed with the Commission, and will comply, as then amended or supplemented, as of each Representation Date (other than in effect on the date hereof), confer additional or specific rights relating to indemnification, advancement of expenses of directors and officers, agents or others, the Executive shall continue to be entitled to such rights, which rights may not be diminished by subsequent modification or amendment; and
(viii) each of the persons executing this Agreement hereby acknowledges and agrees that, in all material respectsentering into this Agreement, with the requirements Executive has relied on each of the Act; the Registration Statement did not, as representations and warranties and agreements of the time of its initial effectiveness, Company contained herein and does not or will not, as then amended or supplemented, as of each Representation Date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; as of each Representation Date (other than the date hereof), the Prospectus, as then amended or supplemented, together with all failure of the then issued Permitted Free Writing ProspectusesCompany to comply with or perform any of such representations, if any, will not contain an untrue statement warranties or agreements shall constitute the material breach by the Company of a material fact or omit to state a material fact necessary inthis Agreement.
Appears in 1 contract
Representations, Warranties and Agreements of the Company. Each of the The Company represents and the Operating Partnership, jointly and severally, represent and warrant warrants to, and agree agrees with, DBSeach Underwriter and the Selling Stockholders, on and as of (i) the date hereofTime of Sale, (ii) each date on which the Company delivers a Transaction Notice (the “Time of Delivery”) or executes Closing Date and delivers a Terms Agreement, (iii) each Time of Sale (Additional Closing Date, as defined below), (iv) each Settlement Date and (v) each Bring-Down Delivery Date (as defined in Section 6(b)) applicable (each such date listed in (i) through (viii), a “Representation Date”), as follows:
(a) There No order preventing or suspending the use of any Preliminary Prospectus has been issued by the Commission, and each Preliminary Prospectus included in the Pricing Disclosure Package, at the time of filing thereof, complied in all material respects with the Securities Act, and no Preliminary Prospectus, at the time of filing thereof, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company makes no representation and warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in any Preliminary Prospectus, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in Section 10(c) hereof. The Pricing Disclosure Package as of the Time of Sale did not, and as of the Closing Date and, if applicable, as of any Additional Closing Date, as the case may be, 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 that the Company makes no representation and warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in such Pricing Disclosure Package, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in Section 10(c) hereof. The Registration Statement is an “automatic shelf registration statement” as defined under Rule 405 of the Securities Act that has been filed with the Commission not earlier than three years prior to the date hereof; there is no order preventing or suspending the use of the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus, and, to the knowledge of the Company, no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering has been initiated or threatened by the Commission; no notice of objection of the Commission to the use of such Registration Statement pursuant to Rule 401(g)(2) under the Securities Act has been received by the Company; the Registration Statement complied when it initially became effective, complies as of the date hereof and, as then amended or supplemented, as of each other Representation Date will comply, in all material respects, with the requirements of the Securities Act; the conditions to the use of Form S-3ASR S-3 in connection with the offering and sale of the Shares as contemplated hereby have been satisfied; the Registration Statement meets, and the offering and sale of the Shares as contemplated hereby complies with, the requirements of Rule 415 under the Securities Act (including, without limitation, Rule 415(a)(5)); the Prospectus complied or will comply, at the time it was or will be filed with the Commission, and will comply, as then amended or supplemented, as of each Representation Date (other than the date hereof), in all material respects, with the requirements of the Securities Act; the Registration Statement did not, as of the time of its initial effectiveness, and does not or will not, as then amended or supplemented, as of each Representation Date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; as of each Representation Date (other than the date hereof), the Prospectus, as then amended or supplemented, together with all of the then issued Permitted Free Writing Prospectuses, if any, will not contain an untrue statement of a material fact or omit to state a material fact necessary inin 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 representation or warranty with respect to any statement or omission in the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus in reliance upon and in conformity with information concerning any Underwriter and furnished in writing by or on behalf of such Underwriter through the Representatives expressly for use in the Registration Statement, the Prospectus or such Permitted Free Writing Prospectus (it being understood that such information consists solely of the information specified in Section 10(c)).
(b) Prior to the execution of this Agreement, the Company has not, directly or indirectly, offered or sold any of the Shares by means of any “prospectus” (within the meaning of the Securities Act) or used any “prospectus” (within the meaning of the Securities Act) in connection with the offer or sale of the Shares, in each case other than the Basic Prospectus and the Preliminary Prospectus. The Company represents and agrees that, unless it obtains the prior consent of the Representatives, it has not made and will not make any offer relating to the Shares that would constitute an “issuer free writing prospectus” (as defined in Rule 433 under the Securities Act) or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under the Securities Act). Any such free writing prospectus relating to the Shares consented to by the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has complied and will comply in all material respects with the requirements of Rule 433 under the Securities Act applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The conditions set forth in one or more of subclauses (i) through (iv), inclusive, of Rule 433(b)(1) under the Securities Act are satisfied, and the registration statement relating to the offering of the Shares contemplated hereby, as initially filed with the Commission, includes a prospectus that, other than by reason of Rule 433 or Rule 431 under the Securities Act, satisfies the requirements of Section 10 of the Securities Act; neither the Company nor any Underwriter is disqualified, by reason of Rule 164(f) or (g) under the Securities Act, from using, in connection with the offer and sale of the Shares, “free writing prospectuses” (as defined in Rule 405 under the Securities Act) pursuant to Rules 164 and 433 under the Securities Act; the Company is not an “ineligible issuer” (as defined in Rule 405 under the Securities Act) as of the eligibility determination date for purposes of Rules 164 and 433 under the Securities Act with respect to the offering of the Shares contemplated by the Registration Statement.
(c) The Incorporated Documents, when they were filed with the Commission, conformed in all material respects to the requirements of the Securities Act or the Exchange Act, as applicable, 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, in light of the circumstances under which they were made, not misleading; and any further documents so filed and incorporated by reference in the Registration Statement, the Pricing Disclosure Package, the Prospectus or any Permitted Free Writing Prospectus, when such documents become effective or are filed with the Commission, as the case may be, will conform in all material respects to the requirements of the Securities Act or the Exchange Act, as applicable, and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(d) The financial statements and the related notes thereto included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package, the Prospectus and any Permitted Free Writing Prospectus comply in all material respects with the applicable requirements of the Securities Act and the Exchange Act, as applicable, and present fairly the financial position of the Company and its consolidated subsidiaries at the dates indicated and their results of operations, stockholders’ equity and cash flows for the periods specified, and such financial statements have been prepared in conformity with the generally accepted accounting principles in the United States (“GAAP”) applied on a consistent basis throughout the periods involved. The other historical financial and statistical information and data included in the Registration Statement, the Pricing Disclosure Package, Prospectus or any Permitted Free Writing Prospectus are, in all material respects, fairly presented.
(e) Except in each case as otherwise disclosed in the Registration Statement, the Pricing Disclosure Package, the Prospectus and any Permitted Free Writing Prospectus, since the date of the most recent financial statements of the Company included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package, the Prospectus and any Permitted Free Writing Prospectus, (i) there has not been any material change in the capital stock or long-term debt of
Appears in 1 contract
Samples: Underwriting Agreement (Citadel L P)
Representations, Warranties and Agreements of the Company. The Company represents and warrants to, and agrees with, the several Initial Purchasers that:
(a) Each of the Company Preliminary Offering Memorandum, as of its date, and the Operating PartnershipFinal Offering Memorandum, jointly and severally, represent and warrant to, and agree with, DBS, on as of the date hereof and as of (i) the date hereof, (ii) each date on which the Company delivers a Transaction Notice (the “Time of Delivery”) or executes and delivers a Terms Agreement, (iii) each Time of Sale (as defined below), (iv) each Settlement Date and (v) each Bring-Down Delivery Closing Date (as defined in Section 6(b)3) did not (each such date listed in (i) through (v), a “Representation Date”), as follows:
(a) There is no order preventing or suspending the use of the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus, and, to the knowledge of the Company, no proceeding for that purpose or pursuant to Section 8A of the Act against the Company or related to the offering has been initiated or threatened by the Commission; no notice of objection of the Commission to the use of such Registration Statement pursuant to Rule 401(g)(2) under the Act has been received by the Company; the Registration Statement complied when it initially became effective, complies as of the date hereof and, as then amended or supplemented, as of each other Representation Date will comply, in all material respects, with the requirements of the Act; the conditions to the use of Form S-3ASR in connection with the offering and sale of the Shares as contemplated hereby have been satisfied; the Registration Statement meets, and the offering and sale of the Shares as contemplated hereby complies with, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5)); the Prospectus complied or will comply, at the time it was or will be filed with the Commission, and will comply, as then amended or supplemented, as of each Representation Date (other than the date hereof), in all material respects, with the requirements of the Act; the Registration Statement did not, as of the time of its initial effectiveness, and does not or will not, as then amended or supplemented, as of each Representation Date), contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; as of each Representation Date (other than the date hereof), the Prospectus, as then amended or supplemented, together with all of the then issued Permitted Free Writing Prospectuses, if any, will not contain an any untrue statement of a material fact or omit to state a material fact necessary inin 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 representation or warranty as to information contained in or omitted from the Preliminary Offering Memorandum or 3 the Final Offering Memorandum in reliance upon and in conformity with written information furnished to the Company by or on behalf of any Initial Purchaser relating to such Initial Purchaser specifically for use therein (the "Initial Purchasers' Information"). The parties hereto acknowledge and agree that, for all purposes of this Agreement, the Initial Purchasers' Information consists solely of the last paragraph on the front cover page concerning the terms of the Offering by the Initial Purchasers, the first paragraph of the legends on page "i" concerning over-allotments and the statements relating to the Initial Purchasers in the third, fourth, sixth, seventh, eighth and ninth paragraphs under the heading "Plan of Distribution" in the Preliminary Offering Memorandum and the Final Offering Memorandum.
(b) Assuming the accuracy of the representations and warranties of the Initial Purchasers contained in Section 2 and their compliance with the agreements set forth herein, it is not necessary, in connection with the issuance and sale of the Securities to the Initial Purchasers and the offer, resale and delivery of the Securities by the Initial Purchasers in the manner contemplated by this Agreement and the Final Offering Memorandum, to register the Securities under the Securities Act or to qualify the Indenture under the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act").
(c) The Company and each of its subsidiaries have been duly incorporated and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation, are duly qualified to do business and are in good standing as foreign corporations in each jurisdiction in which their respective ownership or lease of property or the conduct of their respective businesses requires such qualification, and have all power and authority necessary to own or hold their respective properties and to conduct the businesses in which they are engaged, except where the failure to so qualify or have such power or authority would not, singularly or in the aggregate, have a material adverse effect on the condition (financial or otherwise), results of operations, business or prospects of the Company and its subsidiaries taken as a whole (a "Material Adverse Effect").
(d) On the Closing Date, the authorized capital stock of the Company will consist of 1,000,000 shares of preferred stock, par value $0.01 per share, of which 300,000 shares are issued and outstanding and 1,000 shares of common stock, $0.01 par value per share, of which 1,000 shares are issued and outstanding; all of the outstanding shares of capital stock of the Company are duly and validly authorized and issued and fully paid and non-assessable; and the preferred stock of the Company conforms in all material respects to the description thereof contained in the Final Offering Memorandum under the caption "Description of Redeemable Preferred Stock". All of the outstanding shares of capital stock of each subsidiary of the Company (and, in the case of Smitx Xxxuisition Company, 100% of the nonvoting stock) have been duly and validly authorized and issued, are fully paid and non-assessable and are owned directly or indirectly by the Company, free and clear of any
Appears in 1 contract
Representations, Warranties and Agreements of the Company. Each of The Company represents and warrants to and agrees with the Company and the Operating Partnership, jointly and severally, represent and warrant to, and agree with, DBS, on and as of (i) the date hereof, (ii) each date on which the Company delivers a Transaction Notice (the “Time of Delivery”) or executes and delivers a Terms Agreement, (iii) each Time of Sale (as defined below), (iv) each Settlement Date and (v) each Bring-Down Delivery Date (as defined in Section 6(b)) (each such date listed in (i) through (v), a “Representation Date”), Underwriter as follows, which representations and warranties shall be deemed to be made continuously throughout the term of this Agreement:
(a) There is no The Registration Statement on Form S-11 (File N 333-______) with respect to the Certificates, including the Prospectus subject to completion, has been prepared by the Company in conformity with the requirements of the Securities Act, and the Rules and Regulations of the Commission thereunder and has been filed with the Commission under the Securities Act.
(b) As of the Effective Date, and at all times subsequent thereto until the termination of the Offering, the Registration Statement and Prospectus, and all amendments thereof and supplements thereto, will comply or complied with the provisions and requirements of the Securities Act and the Rules and Regulations. Neither the Commission nor any state securities authority has issued any order preventing or suspending the use of any Preliminary Prospectus or requiring the recirculation of a Preliminary Prospectus, or issued a stop order with respect to the offering of the Certificates (if the Registration StatementStatement has been declared effective), the Prospectus or any Permitted Free Writing Prospectus, andinstituted or, to the knowledge of Company's knowledge, threatened the Companyinstitution of, no proceeding proceedings for that purpose or pursuant to Section 8A of the Act against the Company or related to the offering has been initiated or threatened by the Commission; no notice of objection of the Commission to the use any of such Registration Statement pursuant to Rule 401(g)(2) under the Act has been received by the Company; purposes. When the Registration Statement complied shall become effective and when it initially became any post-effective amendment thereto shall become effective, complies as of the date hereof and, as then amended or supplemented, as of each other Representation Date will comply, in all material respects, with the requirements of the Act; the conditions to the use of Form S-3ASR in connection with the offering and sale of the Shares as contemplated hereby have been satisfied; the Registration Statement meets, and the offering and sale of the Shares as contemplated hereby complies with, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5)); the Prospectus complied or will comply, at the time it was or will be filed with the Commission, and will comply, as then amended or supplemented, as of each Representation Date (other than the date hereof), in all material respects, with the requirements of the Act; the Registration Statement did not, as of the time of its initial effectiveness, and does not or will not, as then amended or supplemented, as of each Representation Date, did not contain an any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances in which they were made, not misleading; as . When the Registration Statement is or was declared effective by the Commission and at all times subsequent thereto until the termination of each Representation Date (other than the date hereof)offering, the Prospectus, Prospectus (as then amended or supplemented, together if the Company shall have filed with all of the then issued Permitted Free Writing Prospectuses, if any, Commission any amendment thereof or supplement thereto) will not or did not contain an any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary inin order to make the statements therein, in light of the circumstances in which they were made, not misleading.
(c) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Minnesota, with full power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement and Prospectus. The Company is duly qualified to do business and is in good standing in each jurisdiction in which the ownership or lease of its properties or the conduct of its business requires such qualification and in which the failure to be qualified or in good standing would have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company, and no proceeding has been instituted in any such jurisdiction revoking, limiting or curtailing, or seeking to revoke, limit or curtail, such power and authority or qualification.
(d) The Company has operated and is operating in material compliance with all authorizations, licenses, certificates, consents, permits, approvals and orders of and from all state, federal and other governmental regulatory officials and bodies necessary to own its properties and to conduct its business as described in the Registration Statement and Prospectus, all of which are, to the Company's knowledge, valid and in full force and effect. The Company is conducting its business in substantial compliance with all applicable laws, rules and regulations of the jurisdictions in which it is conducting business, and the Company is not in material violation of any applicable law, order, rule, regulation, writ, injunction, judgment or decree of any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its properties.
(e) The Company is not in violation of its articles of incorporation or bylaws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any bond, debenture, note or other evidence of indebtedness or in any contract, lease, indenture, mortgage, loan agreement, joint venture or other agreement or instrument to which it is a party or by which it or its properties are bound.
(f) The Company has full requisite power and authority to enter into this Agreement and perform the transactions contemplated hereby. This Agreement has been duly authorized, executed and delivered by the Company and is a valid and binding agreement on the part of the Company, enforceable against the Company in accordance with its terms. The performance of this Agreement and the consummation of the transactions herein contemplated will not result in a breach or violation of any of the terms and provisions of, or constitute a default under:
(i) any indenture, mortgage, deed of trust loan agreement, bond, debenture, note, agreement or other evidence of indebtedness, any lease, contract, joint venture or other agreement or instrument to which the Company is a party or by which the Company or its properties may be bound;
(ii) the articles of incorporation or bylaws of the Company: or
(iii) any applicable law, order, rule, regulation, writ, injunction, judgment or decree of any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its properties.
(g) No consent, approval, authorization or order of or qualification with any court, governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its properties is required for the execution and delivery of this Agreement and the consummation by the Company of the transactions herein contemplated, except such as may be required under the Securities Act, the Exchange Act, or under state or other securities or Blue Sky laws, all of which requirements have been satisfied.
(h) Except as is otherwise expressly described in the Registration Statement or Prospectus, there is neither pending nor, to the best of the Company's knowledge, threatened, any action, suit, claim or proceeding against the Company or any of its officers or any of its properties, assets or rights before any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its officers or properties or otherwise which (A) might result in any material adverse change in the condition (financial or otherwise), earnings, operations or business of the Company or might materially and adversely affect its properties, assets or rights, or (B) might prevent consummation of the transactions contemplated hereby.
(i) The Certificates to be sold hereunder by the Company have been duly authorized for issuance and sale pursuant to this Agreement and, when issued and delivered against payment therefor in accordance with the terms of this Agreement, will be duly and validly issued and fully paid and non-assessable and will be sold free and clear of any pledge, lien, security interest, encumbrance, claim or equitable interest; and no preemptive right, co-sale right, registration right, right of first refusal or other similar right exists with respect to any of the Certificates to be sold hereunder by the Company or the issuance and sale thereof. The Indenture has been duly authorized, executed and delivered by the Company and the Trustee and is a valid and binding agreement on the part of the Company, enforceable against the Company in accordance with its terms. The Certificates will comply as to form with all applicable laws.
(j) Boulay, Heutmaker, Xxxxxx and Company, P.L.L.P. which has expressed its opinion with respect to certain of the financial statements included as a part (whether filed or incorporated by reference) of the Registration Statement, is an independent registered public accounting firm within the meaning of the Securities Act, the Public Company Accounting Oversight Board (PCAOB), and the Rules and Regulations. The financial statements of the Company set forth in the Registration Statement and Prospectus (or incorporated therein by reference) comply in all material respects with the requirements of the Securities Act and fairly present the financial position and the results of operations of the Company at the respective dates and for the respective periods to which they apply in accordance with generally accepted accounting principles consistently applied throughout the periods involved; and the supporting schedules included in the Registration Statement present fairly the information required to be stated therein. The selected and summary financial included in the Registration Statement (or incorporated therein by reference) present fairly the information shown therein and have been compiled on a basis consistent with the audited financial statements presented therein. No other financial statements or schedules are required by the Securities Act or the Rules and Regulations to be included in the Registration Statement.
(k) Subsequent to the respective dates as of which information is given in the Registration Statement and Prospectus, except as is otherwise disclosed in the Registration Statement or Prospectus, there has not been:
(i) any change in the capital stock or long term debt (including any capitalized lease obligation) or material increase in the short-term debt of the Company;
(ii) any material adverse change, or any development involving a material adverse change, in or affecting the condition (financial or otherwise), earnings, operations, business or business prospects, management, financial position, shareholders' equity, results of operations or general condition of the Company;
(iii) any transaction entered into by the Company that is material to the Company;
(iv) any obligation, direct or contingent, incurred by the Company, except obligations incurred in the ordinary course of business that, in the aggregate, are not material; or
(v) any loss or damage (whether or not insured) to the property of the Company which reasonably could be expected to have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company.
(l) Except as is otherwise expressly disclosed in the Registration Statement or Prospectus:
(i) the Company has good and marketable title to all of the property, real and personal, and assets described in the Registration Statement or Prospectus as being owned by it, free and clear of any and all pledges, liens, security interests, encumbrances, equities, charges or claims, other than such as would not have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company;
(ii) the agreements to which the Company is a party described in the Registration Statement and Prospectus are valid agreements, enforceable by the Company except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors' rights generally or by judicial limitations on the right of specific performance; and
(iii) the Company has valid and enforceable leases for all properties described in the Registration Statement and Prospectus as leased by it, except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors' rights generally or by judicial limitations on the right of specific
Appears in 1 contract
Samples: Distribution Agreement (American Church Mortgage Co)
Representations, Warranties and Agreements of the Company. Each of the The Company represents and the Operating Partnership, jointly and severally, represent and warrant warrants to, and agree agrees with, DBS, on and as of each Underwriter that:
(i) the date hereof, A registration statement (iiNo. 333-129214) each date on which the Company delivers a Transaction Notice (the “Time of Delivery”) or executes and delivers a Terms Agreement, (iii) each Time of Sale (as defined below), (iv) each Settlement Date and (v) each Bring-Down Delivery Date (as defined in Section 6(b)) (each such date listed in (i) through (v), a “Representation Date”), as follows:
(a) There is no order preventing or suspending the use of the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus, and, relating to the knowledge of Securities has been prepared by the Company, no proceeding for that purpose including a prospectus (the ‘‘initial registration statement’’) has been filed with the Securities and Exchange Commission (the ‘‘Commission’’) and has been declared effective under the Securities Act of 1933, as amended (the ‘‘Act’’) and either (A) is not proposed to be amended or pursuant (B) is proposed to Section 8A of be amended by amendment or post-effective amendment. Either (A) an additional registration statement (the Act against the Company or related ‘‘additional registration statement’’) relating to the offering has Securities may have been initiated or threatened by the Commission; no notice of objection of filed with the Commission to the use of such Registration Statement pursuant to Rule 401(g)(2462(b) (‘‘Rule 462(b)’’) under the Act has been received by the Company; the Registration Statement complied when it initially became effective, complies as of the date hereof (if available) and, as then amended or supplementedif so filed, as of each other Representation Date will comply, in all material respects, with has become effective upon filing pursuant to such Rule and the requirements of the Act; the conditions to the use of Form S-3ASR in connection with the offering and sale of the Shares as contemplated hereby Securities have been satisfied; the Registration Statement meets, and the offering and sale of the Shares as contemplated hereby complies with, the requirements of Rule 415 duly registered under the Act pursuant to the initial registration statement and, if applicable, the additional registration statement or (including, without limitation, Rule 415(a)(5)); the Prospectus complied or will comply, at the time it was or will B) such an additional registration statement is proposed to be filed with the CommissionCommission pursuant to Rule 462(b) (if available) and will become effective upon filing pursuant to such Rule, and upon such filing the Securities will complyall have been duly registered under the Act pursuant to the initial registration statement and such additional registration statement. If the Company does not propose to amend the initial registration statement or if an additional registration statement has been filed and the Company does not propose to amend it, and if any post-effective amendment to either such registration statement has been filed with the Commission prior to the execution and delivery of this Agreement, the most recent amendment (if any) to each such registration statement has been declared effective by the Commission or has become effective upon filing pursuant to Rule 462(c) (‘‘Rule 462(c)’’) under the Act or, in the case of the additional registration statement, Rule 462(b). For purposes of this Agreement, ‘‘Effective Time’’ with respect to the initial registration statement or, if filed prior to the execution and delivery of this Agreement, the additional registration statement means (A) if the Company has advised the Representatives that it does not propose to amend such registration statement, the date and time as of which such registration statement, or the most recent post-effective amendment thereto (if any) filed prior to the execution and delivery of this Agreement, was declared effective by the Commission or has become effective upon filing pursuant to Rule 462(c), or (B) if the Company has advised the Representatives that it proposes to file an amendment or post-effective amendment to such registration statement, the date and time as of which such registration statement, as then amended by such amendment or supplementedpost-effective amendment, as the case may be, is declared effective by the Commission. If an additional registration statement has not been filed prior to the execution and delivery of each Representation Date (other than this Agreement but the Company has advised the Representatives that it proposes to file one, ‘‘Effective Time’’ with respect to such additional registration statement means the date hereofand time as of which such registration statement is filed and becomes effective pursuant to Rule 462(b). ‘‘Effective Date’’ with respect to the initial registration statement or the additional registration statement (if any) means the date of the Effective Time thereof. The initial registration statement, in as amended at its Effective Time, including all material respects, with incorporated by reference therein and including all information contained in the requirements additional registration statement (if any) and deemed to be a part of the Act; the Registration Statement did not, initial registration statement as of the time Effective Time of its initial effectivenessthe additional registration statement (if any) pursuant to the General Instructions of the Form on which it is filed, and does not or will notis hereinafter referred to as the ‘‘Initial Registration Statement’’. The additional registration statement (if any), as then amended or supplementedat its Effective Time, including the contents of the initial registration statement incorporated by reference therein, is hereinafter referred to as the ‘‘Additional Registration Statement’’. For purposes of each Representation Date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; as of each Representation Date (other than the date hereof)this Agreement, the Prospectus, as then amended or supplemented, together with all of following terms have the then issued Permitted Free Writing Prospectuses, if any, will not contain an untrue statement of a material fact or omit to state a material fact necessary inspecified meanings:
Appears in 1 contract
Samples: Underwriting Agreement (Aspen Insurance Holdings LTD)
Representations, Warranties and Agreements of the Company. Each of the The Company represents and the Operating Partnership, jointly and severally, represent and warrant warrants to, and agree agrees with, DBSeach Underwriter, on and as of (i) the date hereofTime of Sale, (ii) each date on which the Company delivers a Transaction Notice (the “Time of Delivery”) or executes Closing Date and delivers a Terms Agreement, (iii) each Time of Sale (Additional Closing Date, as defined below), (iv) each Settlement Date and (v) each Bring-Down Delivery Date (as defined in Section 6(b)) applicable (each such date listed in (i) through (viii), a “Representation Date”), as follows:
(a) There No order preventing or suspending the use of any Preliminary Prospectus has been issued by the Commission, and each Preliminary Prospectus included in the Pricing Disclosure Package, at the time of filing thereof, complied in all material respects with the Securities Act, and no Preliminary Prospectus, at the time of filing thereof, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company makes no representation and warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in any Preliminary Prospectus, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in Section 9(b) hereof. The Pricing Disclosure Package as of the Time of Sale did not, and as of the Closing Date and, if applicable, as of any Additional Closing Date, as the case may be, 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 that the Company makes no representation and warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in such Pricing Disclosure Package, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in Section 9(b) hereof. The Registration Statement is an “automatic shelf registration statement” as defined under Rule 405 of the Securities Act that has been filed with the Commission not earlier than three years prior to the date hereof; there is no order preventing or suspending the use of the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus, and, to the knowledge of the Company, no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering has been initiated or threatened by the Commission; no notice of objection of the Commission to the use of such Registration Statement pursuant to Rule 401(g)(2) under the Securities Act has been received by the Company; the Registration Statement complied when it initially became effective, complies as of the date hereof and, as then amended or supplemented, as of each other Representation Date will comply, in all material respects, with the requirements of the Securities Act; the conditions to the use of Form S-3ASR S-3 in connection with the offering and sale of the Shares as contemplated hereby have been satisfied; the Registration Statement meets, and the offering and sale of the Shares as contemplated hereby complies with, the requirements of Rule 415 under the Securities Act (including, without limitation, Rule 415(a)(5)); the Prospectus complied or will comply, at the time it was or will be filed with the Commission, and will comply, as then amended or supplemented, as of each Representation Date (other than the date hereof), in all material respects, with the requirements of the Securities Act; the Registration Statement did not, as of the time of its initial effectiveness, and does not or will not, as then amended or supplemented, as of each Representation Date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; as of each Representation Date (other than the date hereof), the Prospectus, as then amended or supplemented, together with all of the then issued Permitted Free Writing Prospectuses, if any, will not contain an untrue statement of a material fact or omit to state a material fact necessary inin 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 representation or warranty with respect to any statement or omission in the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus in reliance upon and in conformity with information concerning any Underwriter and furnished in writing by or on behalf of such Underwriter through the Representatives expressly for use in the Registration Statement, the Prospectus or such Permitted Free Writing Prospectus (it being understood that such information consists solely of the information specified in Section 9(b)).
(b) Prior to the execution of this Agreement, the Company has not, directly or indirectly, offered or sold any of the Shares by means of any “prospectus” (within the meaning of the Securities Act) or used any “prospectus” (within the meaning of the Securities Act) in connection with the offer or sale of the Shares, in each case other than the Basic Prospectus and the Preliminary Prospectus. The Company represents and agrees that, unless it obtains the prior consent of the Representatives, it has not made and will not make any offer relating to the Shares that would constitute an “issuer free writing prospectus” (as defined in Rule 433 under the Securities Act) or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under the Securities Act). Any such free writing prospectus relating to the Shares consented to by the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has complied and will comply in all material respects with the requirements of Rule 433 under the Securities Act applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The conditions set forth in one or more of subclauses (i) through (iv), inclusive, of Rule 433(b)(1) under the Securities Act are satisfied, and the registration statement relating to the offering of the Shares contemplated hereby, as initially filed with the Commission, includes a prospectus that, other than by reason of Rule 433 or Rule 431 under the Securities Act, satisfies the requirements of Section 10 of the Securities Act; neither the Company nor any Underwriter is disqualified, by reason of Rule 164(f) or (g) under the Securities Act, from using, in connection with the offer and sale of the Shares, “free writing prospectuses” (as defined in Rule 405 under the Securities Act) pursuant to Rules 164 and 433 under the Securities Act; the Company is not an “ineligible issuer” (as defined in Rule 405 under the Securities Act) as of the eligibility determination date for purposes of Rules 164 and 433 under the Securities Act with respect to the offering of the Shares contemplated by the Registration Statement.
(c) The Incorporated Documents, when they were filed with the Commission, conformed in all material respects to the requirements of the Securities Act or the Exchange Act, as applicable, 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, in light of the circumstances under which they were made, not misleading; and any further documents so filed and incorporated by reference in the Registration Statement, the Pricing Disclosure Package, the Prospectus or any Permitted Free Writing Prospectus, when such documents become effective or are filed with the Commission, as the case may be, will conform in all material respects to the requirements of the Securities Act or the Exchange Act, as applicable, and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(d) The financial statements and the related notes thereto included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package, the Prospectus and any Permitted Free Writing Prospectus comply in all material respects with the applicable requirements of the Securities Act and the Exchange Act, as applicable, and present fairly the financial position of the Company and its consolidated subsidiaries at the dates indicated and their results of operations, stockholders’ equity and cash flows for the periods specified, and such financial statements have been prepared in conformity with the generally accepted accounting principles in the United States (“GAAP”) applied on a consistent basis throughout the periods involved. The other historical financial and statistical information and data included in the Registration Statement, the Pricing Disclosure Package, Prospectus or any Permitted Free Writing Prospectus are, in all material respects, fairly presented.
(e) Except in each case as otherwise disclosed in the Registration Statement, the Pricing Disclosure Package, the Prospectus and any Permitted Free Writing Prospectus, since the date of the most recent financial statements of the Company included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package, the Prospectus and any Permitted Free Writing Prospectus, (i) there has not been any material change in the capital stock or long-term debt of the Company or any of its subsidiaries and there has not been a Material Adverse Effect (as defined below), (ii) neither the Company nor any of its subsidiaries has entered into any transaction or agreement that is material to the Company and its subsidiaries, taken as a whole, or incurred any liability or obligation, direct or contingent, except for such liabilities or obligations that, individually or in the aggregate, would not have a Material Adverse Effect and (iii) neither the Company nor any of its subsidiaries has sustained any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor disturbance or dispute or any action, order or decree of any court or arbitrator or governmental or regulatory authority, except for such losses that, individually or in the aggregate, would not have a Material Adverse Effect. As used herein, “Material Adverse Effect” means a material adverse effect on the earnings, business, properties, condition (financial or otherwise), results of operations or prospects of the Company and its subsidiaries taken as a whole.
Appears in 1 contract
Representations, Warranties and Agreements of the Company. Each of the The Company represents and the Operating Partnership, jointly and severally, represent and warrant warrants to, and agree agrees with, DBSeach of the Agents, on and as of (i) the date hereof, (ii) each date on which the Company delivers receives a Transaction Notice Acceptance (the “Time of DeliveryAcceptance”), (iii) or each date on which the Company executes and delivers a Terms Agreement, (iiiiv) each Time of Sale (as defined belowin Section 3(a)), (ivv) each Settlement Date and (vvi) each Bring-Down Delivery Date (as defined in Section 6(b6(a)) (each such date listed in (i) through (vvi), a “Representation Date”), as follows:
(a) There The Registration Statement was filed with the Commission not earlier than three years prior to the date hereof and the Registration Statement has been declared effective by the Commission; there is no order preventing or suspending the use of the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus, and, to the knowledge of the Company, no proceeding for that purpose or pursuant to Section 8A of the Act against the Company or related to the offering contemplated hereby has been initiated or threatened by the Commission; no notice of objection of the Commission to the use of such Registration Statement pursuant to Rule 401(g)(2) under the Act has been received by the Company; the Registration Statement complied when it initially became effective, complies as of the date hereof and, as then amended or supplemented, as of each other Representation Date will comply, in all material respects, with the requirements of the Act; the conditions to the use of Form S-3ASR S-3 in connection with the offering and sale of the Shares as contemplated hereby have been satisfied; the Registration Statement meets, and the offering and sale of the Shares as contemplated hereby complies comply with, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5)); the Prospectus complied or will comply, at the time it was or will be filed with the Commission, and will comply, as then amended or supplemented, as of each Representation Date (other than the date hereof)Date, in all material respects, with the requirements of the Act; the Registration Statement did not, as of the time of its initial effectiveness, and does not or will not, as then amended or supplemented, as of each Representation Date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; as of each Representation Date (other than the date hereof)Date, the Prospectus, as then amended or supplemented, together with all of the then issued Permitted Free Writing Prospectuses, if any, will not contain an untrue statement of a material fact or omit to state a material fact necessary inin 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 representation or warranty with respect to any statement in or omission from the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus made in reliance upon and in conformity with information concerning the Agent and furnished in writing by or on behalf of the Agent expressly for use in the Registration Statement, the Prospectus or such Permitted Free Writing Prospectus (it being understood that such information consists solely of the information specified in Section 9(b)). As used herein, “Time of Sale” means (i) with respect to each offering of Shares pursuant to this Agreement, the time of the Agent’s initial entry into contracts with investors for the sale of such Shares and (ii) with respect to each offering of Shares pursuant to any relevant Terms Agreement, the time of sale of such Shares.
Appears in 1 contract
Representations, Warranties and Agreements of the Company. Each of the The Company represents and the Operating Partnership, jointly and severally, represent and warrant warrants to, and agree agrees with, DBSeach Agent, on and as of (i) the date hereof, (ii) each date on which the Company delivers receives a Transaction Notice Acceptance (the “Time of DeliveryAcceptance”), (iii) or each date on which the Company executes and delivers a Terms Agreement, (iiiiv) each Time of Sale (as defined belowin Section 3(a)), (ivv) each Settlement Date and (vvi) each Bring-Down Delivery Date (as defined in Section 6(b)) (each such date listed in (i) through (vvi), a “Representation Date”), as follows:
(a) There The Registration Statement is an “automatic shelf registration statement” as defined under Rule 405 of the Act that has been filed with the Commission not earlier than three years prior to the date hereof; and no notice of objection of the Commission to the use of such Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act has been received by the Company. No order preventing or suspending the use of the Registration Statement, the Prospectus or any Permitted Free Writing ProspectusProspectus (as defined below) has been issued by the Commission, and, to the knowledge of the Company, and no proceeding for that purpose or pursuant to Section 8A of the Act against the Company or related to the offering has been initiated or threatened by the Commission; no notice of objection of the Commission to the use of such Registration Statement pursuant to Rule 401(g)(2) under the Act has been received by the Company; the Registration Statement complied when it initially became effective, complies as of the date hereof and, as then amended or supplemented, as of each other Representation Date will comply, in all material respects, with the requirements of the Act; the conditions to the use of Form S-3ASR S-3 in connection with the offering and sale of the Shares as contemplated hereby have been satisfied; the Registration Statement meets, and the offering and sale of the Shares as contemplated hereby complies comply with, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5)); the Prospectus complied or will comply, at the time it was or will be filed with the Commission, and will comply, as then amended or supplemented, as of each Representation Date (other than the date hereof)Date, in all material respects, with the requirements of the Act; the Registration Statement did not, as of the time of its initial effectiveness, and does not or will not, as then amended or supplemented, as of each Representation Date, contain an 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; and as of each Representation Date (other than the date hereof)Date, the Prospectus, as then amended or supplemented, together with all of the then issued Permitted Free Writing ProspectusesProspectuses (as defined below), if any, will not contain an any untrue statement of a material fact or omit to state a material fact necessary inin order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company makes no representation or warranty with respect to any statements or omissions from the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus (as defined below) made in reliance upon and in conformity with information concerning any Agent and furnished to the Company in writing by or on behalf of any Agent expressly for use in the Registration Statement, the Prospectus or such Permitted Free Writing
Appears in 1 contract
Representations, Warranties and Agreements of the Company. Each of the The Company represents and the Operating Partnership, jointly and severally, represent and warrant warrants to, and agree agrees with, DBSeach Underwriter, on and as of (i) the date hereof, Time of Sale and (ii) each date on which the Company delivers a Transaction Notice (the “Time of Delivery”) or executes and delivers a Terms Agreement, (iii) each Time of Sale (as defined below), (iv) each Settlement Closing Date and (v) each Bring-Down Delivery Date (as defined in Section 6(b)) (each such date listed in (i) through and (vii), a “Representation Date”), as follows:
(a) There is no No order preventing or suspending the use of the Registration Statement, the any Preliminary Prospectus or any Permitted Free Writing Prospectus, and, to the knowledge of the Company, no proceeding for that purpose or pursuant to Section 8A of the Act against the Company or related to the offering has been initiated or threatened issued by the Commission; no notice of objection of the Commission to the use of such Registration Statement pursuant to Rule 401(g)(2) under the Act has been received by the Company; the Registration Statement complied when it initially became effective, complies as of the date hereof and, as then amended or supplemented, as of each other Representation Date will comply, in all material respects, with the requirements of the Act; the conditions to the use of Form S-3ASR in connection with the offering and sale of the Shares as contemplated hereby have been satisfied; the Registration Statement meets, and each Preliminary Prospectus included in the offering and sale of the Shares as contemplated hereby complies with, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5)); the Prospectus complied or will complyPricing Disclosure Package, at the time it was or will be filed with the Commissionof filing thereof, and will comply, as then amended or supplemented, as of each Representation Date (other than the date hereof), complied in all material respects, respects with the requirements of the Securities Act; the Registration Statement did not, as of and no Preliminary Prospectus, at the time of its initial effectivenessfiling thereof, and does not or will not, as then amended or supplemented, as of each Representation Date, contain an contained any untrue statement of a material fact or omit omitted to state a material fact required to be stated therein or necessary in order to make the statements therein therein, in the light of the circumstances under which they were made, not misleading; provided that the Company makes no representation and warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter expressly for use in any Preliminary Prospectus, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in Section 6(b) hereof. The Pricing Disclosure Package as of each Representation Date (other than the date hereof)Time of Sale did not, the Prospectus, and as then amended or supplemented, together with all of the then issued Permitted Free Writing Prospectuses, if anyClosing Date, will not not, contain an any untrue statement of a material fact or omit to state a material fact necessary inin order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company makes no representation and warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter expressly for use in such Pricing Disclosure Package, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in Section 6(b)
Appears in 1 contract
Representations, Warranties and Agreements of the Company. Each of the The Company represents and the Operating Partnership, jointly and severally, represent and warrant warrants to, and agree agrees with, DBS, on and as each of (i) the date hereof, (ii) each date on which the Company delivers a Transaction Notice (the “Time of Delivery”) or executes and delivers a Terms Agreement, (iii) each Time of Sale (as defined below), (iv) each Settlement Date and (v) each Bring-Down Delivery Date (as defined in Section 6(b)) (each such date listed in (i) through (v), a “Representation Date”), as followsUnderwriters that:
(a) There is An “automatic shelf registration statement” as defined under Rule 405 under the Securities Act of 1933, as amended (the “Securities Act”), on Form S-3 (File No. 333-155495) in respect of the Securities has been filed with the Securities and Exchange Commission (the “Commission”) not earlier than three years prior to the date of this Agreement; such registration statement, and any post-effective amendment thereto, became effective on filing; no stop order preventing or suspending the use effectiveness of the Registration Statement, the Prospectus such registration statement or any Permitted Free Writing Prospectus, and, to the knowledge of the Company, part thereof has been issued and no proceeding for that purpose or pursuant to Section 8A of the Act against the Company or related to the offering has been initiated or threatened by the Commission; , and no notice of objection of the Commission to the use of such Registration Statement registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act has been received by the Company; the Registration various parts of such registration statement, including all exhibits thereto (other than the Statement complied when it initially of Eligibility and Qualification on Form T-1) and including any prospectus supplement relating to the Securities that is filed with the Commission pursuant to Rule 424(b) under the Securities Act and deemed by Rule 430B under the Securities Act to be part of such registration statement, each as amended at the time such part of the registration statement became effective, complies are hereinafter collectively called the “Registration Statement”; the base prospectus filed as part of the Registration Statement, in the form in which it was most recently filed with the Commission prior to or on the date hereof andof this Agreement, is hereinafter called the “Base Prospectus”; the final prospectus supplement to such prospectus (including the Base Prospectus) relating to the Securities, in the form filed or to be filed with the Commission pursuant to Rule 424(b) under the Securities Act, is hereinafter called the “Prospectus”; any preliminary prospectus (including any preliminary prospectus supplement) relating to the Securities, in the form filed or to be filed with the Commission pursuant to Rule 424(b), is hereinafter called a “Preliminary Prospectus”; the Base Prospectus, as then amended or supplemented, as of each other Representation Date will comply, in all material respects, with the requirements of the Act; the conditions supplemented immediately prior to the use of Form S-3ASR Applicable Time (as defined in connection with the offering and sale of the Shares as contemplated hereby have been satisfied; the Registration Statement meetsSection 1(e) hereof), and the offering and sale of the Shares as contemplated hereby complies with, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5))any Preliminary Prospectus relating to the Securities, is hereinafter called the “Pricing Prospectus”; any reference in this Agreement to the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus complied shall be deemed to refer to and include the documents incorporated by reference therein that were filed under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or will complythe Securities Act, at as the time it was case may be, and the rules and regulations of the Commission thereunder, on or will before the date of this Agreement or the issue date of any such prospectus; any reference to “amend,” “amendment,” “supplement” or similar terms with respect to the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus shall be deemed to refer to and include any documents filed under the Exchange Act or the Securities Act, as the case may be, after the date of this Agreement or the issue date of any such prospectus which are deemed to be incorporated by reference therein; and any “issuer free writing prospectus” (as defined in Rule 433 under the Securities Act) relating to the Securities that (x) is required to be filed with the CommissionCommission by the Company or (y) is exempt from filing pursuant to Rule 433(d)(5)(i) because it contains a description of the Securities or the offering that does not reflect the final terms is hereinafter called an “Issuer Free Writing Prospectus”;
(b) The documents incorporated by reference in the Registration Statement, the Pricing Prospectus and will complythe Prospectus, when they were filed with the Commission or became effective, as then amended or supplementedthe case may be, as of each Representation Date (other than the date hereof), conformed in all material respects, with respects to the requirements of the Exchange Act or the Securities Act, as the case may be, and the rules and regulations of the Commission thereunder; 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 Registration Statement did notStatement, the Pricing Prospectus and the Prospectus, when such documents are filed with the Commission or become effective, as the case may be, will conform in all material respects to the requirements of the time of its initial effectivenessExchange Act or the Securities Act, as applicable, and does the rules and regulations of the Commission thereunder and will not or will not, as then amended or supplemented, as of each Representation Date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made therein in reliance upon and in conformity with information furnished in writing to the Company by an Underwriter through the Representatives expressly for use therein;
(c) The Registration Statement, any Preliminary Prospectus and the Pricing Prospectus conform, and the Prospectus and any post-effective amendments or supplements to the Registration Statement or the Prospectus will conform, in all material respects, to the requirements of the Securities Act and the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and the rules and regulations of the Commission thereunder; and (i) the Registration Statement and any amendment thereto, as of each Representation Date (other than their applicable effective dates relating to the date hereof)Securities, the Prospectus, as then amended or supplemented, together with all of the then issued Permitted Free Writing Prospectuses, if any, did not and will not contain an any untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) any Preliminary Prospectus, the Pricing Prospectus, the Prospectus and any amendment or supplement thereto, as of their issue dates, did not and will not contain any untrue statement of a material fact or omit to state a material fact necessary inin order to make the statements therein, in the light of the circumstances under which they were made, not misleading and (iii) the Prospectus and the Prospectus as amended or supplemented, if applicable, at the Time of Delivery (as defined in Section 2 hereof), 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 this representation and warranty shall not apply to any statements or omissions made therein in reliance upon and in conformity with information furnished in writing to the Company by an Underwriter through the Representatives expressly for use therein;
(d) The Company has been, and continues to be, a “well-known seasoned issuer” (as defined in Rule 405 under the Securities Act), and has not been, and continues not to be, an “ineligible issuer” (as such term is defined in Rule 405 under the Securities Act), in each case as from the earliest time after the filing of the Registration Statement that the Company or another offering participant made a “bona fide” offer (within the meaning of Rule 164(h)(2) under the Securities Act) of the Securities;
(e) As used herein, the “Disclosure Package” means, collectively, (i) the Pricing Prospectus, (ii) the Final Term Sheet prepared and filed pursuant to Section 5(b) hereof and (iii) any other Issuer Free Writing Prospectus that is identified on Schedule III hereto; and the “Applicable Time” means 4:55 p.m. (New York City time) on the date of this Agreement. The Disclosure Package, as of the Applicable Time, did not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and each Issuer Free Writing Prospectus identified on Schedule III hereto does not conflict with the information contained in the Registration Statement, the Pricing Prospectus or the Prospectus; provided, however, that this representation and warranty shall not apply to statements or omissions made therein in reliance upon and in conformity with information furnished in writing to the Company by an Underwriter through the Representatives expressly for use therein;
Appears in 1 contract
Representations, Warranties and Agreements of the Company. Each of the The Company represents and the Operating Partnership, jointly and severally, represent and warrant warrants to, and agree agrees with, DBS, on and as each of (i) the date hereof, (ii) each date on which the Company delivers a Transaction Notice (the “Time of Delivery”) or executes and delivers a Terms Agreement, (iii) each Time of Sale (as defined below), (iv) each Settlement Date and (v) each Bring-Down Delivery Date (as defined in Section 6(b)) (each such date listed in (i) through (v), a “Representation Date”), as followsUnderwriters that:
(a) There is An “automatic shelf registration statement” as defined under Rule 405 under the Securities Act of 1933, as amended (the “Securities Act”), on Form S-3 (File No. 333-155495) in respect of the Securities has been filed with the Securities and Exchange Commission (the “Commission”) not earlier than three years prior to the date of this Agreement; such registration statement, and any post-effective amendment thereto, became effective on filing; no stop order preventing or suspending the use effectiveness of the Registration Statement, the Prospectus such registration statement or any Permitted Free Writing Prospectus, and, to the knowledge of the Company, part thereof has been issued and no proceeding for that purpose or pursuant to Section 8A of the Act against the Company or related to the offering has been initiated or threatened by the Commission; , and no notice of objection of the Commission to the use of such Registration Statement registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act has been received by the Company; the Registration various parts of such registration statement, including all exhibits thereto (other than the Statement complied when it initially of Eligibility and Qualification on Form T-1) and including any prospectus supplement relating to the Securities that is filed with the Commission pursuant to Rule 424(b) under the Securities Act and deemed by Rule 430B under the Securities Act to be part of such registration statement, each as amended at the time such part of the registration statement became effective, complies are hereinafter collectively called the “Registration Statement”; the base prospectus filed as part of the Registration Statement, in the form in which it was most recently filed with the Commission prior to or on the date hereof andof this Agreement, is hereinafter called the “Base Prospectus”; the final prospectus supplement to such prospectus (including the Base Prospectus) relating to the Securities, in the form filed or to be filed with the Commission pursuant to Rule 424(b) under the Securities Act, is hereinafter called the “Prospectus”; any preliminary prospectus (including any preliminary prospectus supplement) relating to the Securities, in the form filed or to be filed with the Commission pursuant to Rule 424(b), is hereinafter called a “Preliminary Prospectus”; the Base Prospectus, as then amended or supplemented, as of each other Representation Date will comply, in all material respects, with the requirements of the Act; the conditions supplemented immediately prior to the use of Form S-3ASR Applicable Time (as defined in connection with the offering and sale of the Shares as contemplated hereby have been satisfied; the Registration Statement meetsSection 1(e) hereof), and the offering and sale of the Shares as contemplated hereby complies with, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5))any Preliminary Prospectus relating to the Securities, is hereinafter called the “Pricing Prospectus”; any reference in this Agreement to the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus complied shall be deemed to refer to and include the documents incorporated by reference therein that were filed under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or will complythe Securities Act, at as the time it was case may be, and the rules and regulations of the Commission thereunder, on or will before the date of this Agreement or the issue date of any such prospectus; any reference to “amend,” “amendment,” “supplement” or similar terms with respect to the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus shall be deemed to refer to and include any documents filed under the Exchange Act or the Securities Act, as the case may be, after the date of this Agreement or the issue date of any such prospectus which are deemed to be incorporated by reference therein; and any “issuer free writing prospectus” (as defined in Rule 433 under the Securities Act) relating to the Securities that (x) is required to be filed with the CommissionCommission by the Company or (y) is exempt from filing pursuant to Rule 433(d)(5)(i) because it contains a description of the Securities or the offering that does not reflect the final terms is hereinafter called an “Issuer Free Writing Prospectus”;
(b) The documents incorporated by reference in the Registration Statement, the Pricing Prospectus and will complythe Prospectus, when they were filed with the Commission or became effective, as then amended or supplementedthe case may be, as of each Representation Date (other than the date hereof), conformed in all material respects, with respects to the requirements of the Exchange Act or the Securities Act, as the case may be, and the rules and regulations of the Commission thereunder; 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 Registration Statement did notStatement, the Pricing Prospectus and the Prospectus, when such documents are filed with the Commission or become effective, as the case may be, will conform in all material respects to the requirements of the time of its initial effectivenessExchange Act or the Securities Act, as applicable, and does the rules and regulations of the Commission thereunder and will not or will not, as then amended or supplemented, as of each Representation Date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made therein in reliance upon and in conformity with information furnished in writing to the Company by an Underwriter through the Representatives expressly for use therein;
(c) The Registration Statement, any Preliminary Prospectus and the Pricing Prospectus conform, and the Prospectus and any post-effective amendments or supplements to the Registration Statement or the Prospectus will conform, in all material respects, to the requirements of the Securities Act and the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and the rules and regulations of the Commission thereunder; and (i) the Registration Statement and any amendment thereto, as of each Representation Date (other than their applicable effective dates relating to the date hereof)Securities, the Prospectus, as then amended or supplemented, together with all of the then issued Permitted Free Writing Prospectuses, if any, did not and will not contain an any untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) any Preliminary Prospectus, the Pricing Prospectus, the Prospectus and any amendment or supplement thereto, as of their issue dates, did not and will not contain any untrue statement of a material fact or omit to state a material fact necessary inin order to make the statements therein, in the light of the circumstances under which they were made, not misleading and (iii) the Prospectus and the Prospectus as amended or supplemented, if applicable, at the Time of Delivery (as defined in Section 2 hereof), 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 this representation and warranty shall not apply to any statements or omissions made therein in reliance upon and in conformity with information furnished in writing to the Company by an Underwriter through the Representatives expressly for use therein;
(d) The Company has been, and continues to be, a “well-known seasoned issuer” (as defined in Rule 405 under the Securities Act), and has not been, and continues not to be, an “ineligible issuer” (as such term is defined in Rule 405 under the Securities Act), in each case as from the earliest time after the filing of the Registration Statement that the Company or another offering participant made a “bona fide” offer (within the meaning of Rule 164(h)(2) under the Securities Act) of the Securities;
(e) As used herein, the “Disclosure Package” means, collectively, (i) the Pricing Prospectus, (ii) the Final Term Sheet prepared and filed pursuant to Section 5(b) hereof and (iii) any other Issuer Free Writing Prospectus that is identified on Schedule III hereto; and the “Applicable Time” means 6:00 p.m. (New York City time) on the date of this Agreement. The Disclosure Package, as of the Applicable Time, did not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and each Issuer Free Writing Prospectus identified on Schedule III hereto does not conflict with the information contained in the Registration Statement, the Pricing Prospectus or the Prospectus; provided, however, that this representation and warranty shall not apply to statements or omissions made therein in reliance upon and in conformity with information furnished in writing to the Company by an Underwriter through the Representatives expressly for use therein;
Appears in 1 contract
Representations, Warranties and Agreements of the Company. Each of the (a) The Company represents and the Operating Partnership, jointly warrants to and severally, represent and warrant to, and agree with, DBS, on and as of agrees with each Underwriter that: (i) Each Prepricing Prospectus included as part of the date hereofregistration statement as originally filed or as part of any amendment or supplement thereto, (ii) each date on which or filed pursuant to Rule 424 under the Company delivers a Transaction Notice (Act, complied when so filed in all material respects with the “Time provisions of Delivery”) or executes and delivers a Terms Agreement, (iii) each Time of Sale (as defined below), (iv) each Settlement Date and (v) each Bring-Down Delivery Date (as defined in Section 6(b)) (each such date listed in (i) through (v), a “Representation Date”), as follows:
(a) There is no the Act. The Commission has not issued any order preventing or suspending the use of any Prepricing Prospectus.
(ii) The Company and the transactions contemplated by this Agreement meet the requirements for using Form S-3 under the Act. The Registration Statement, Statement in the Prospectus form in which it became or becomes effective and also in such form as it may be when any Permitted Free Writing Prospectus, and, to post-effective amendment thereto shall become effective complied or will comply in all material respects with the knowledge of the Company, no proceeding for that purpose or pursuant to Section 8A provisions of the Act against the Company or related to the offering has been initiated or threatened by the Commission; no notice of objection of the Commission to the use of such Registration Statement pursuant to Rule 401(g)(2) under the Act has been received by the Company; the Registration Statement complied when it initially became effective, complies as of the date hereof and, as then amended or supplemented, as of each other Representation Date will comply, in all material respects, with the requirements of the Act; the conditions to the use of Form S-3ASR in connection with the offering and sale of the Shares as contemplated hereby have been satisfied; the Registration Statement meets, and the offering and sale of the Shares as contemplated hereby complies with, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5)); the Prospectus complied or will comply, at the time it was or will be filed with the Commission, and will comply, as then amended or supplemented, as of each Representation Date (other than the date hereof), in all material respects, with the requirements of the Act; the Registration Statement did not, as of the time of its initial effectiveness, and does not or will not, as then amended or supplemented, as of each Representation Date, not at any such times 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 as of each Representation Date (other than supplemented or amended when filed with the date hereof), Commission under Rule 424(b) under the Prospectus, as then amended Act complied with or supplemented, together will comply in all material respects with all the provisions of the then issued Permitted Free Writing Prospectuses, if any, Act and did not or will not at any such time contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary into make the statements therein, in light of the circumstances under which they were made, not misleading, except that this representation and warranty does not apply to statements in or omissions from the Registration Statement or the Prospectus made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by or on behalf of any Underwriter through you expressly for use therein.
(iii) The Incorporated Documents heretofore filed, when they were filed (or, if any amendment with respect to any such Incorporated Document was filed, when such amendment was filed), conformed in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder, and any further Incorporated Documents so filed will, when they are filed, conform in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder; no such Incorporated Document when it was filed (or, if an amendment with respect to any such Incorporated Document was filed, when such amendment was filed), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and no such further Incorporated Document, when it is filed, will contain an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(iv) All the outstanding shares of the Company's Common Stock, par value $2.50 per share (the "Common Shares"), have been duly authorized and validly issued, are fully paid and nonassessable and are free of any preemptive or similar rights; the Shares have been duly authorized and, when issued and delivered to you against payment therefor in accordance with the terms hereof, will be validly issued, fully paid and nonassessable and free of any preemptive or similar rights; and the capital stock of the Company conforms, in all material respects, to the description thereof in the Registration Statement and the Prospectus.
(v) The Company is a corporation duly organized and validly existing in good standing under the laws of the State of California 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, and is not required to be qualified as a foreign corporation for the transaction of business under the laws of any jurisdictions in which the consequences of a failure to qualify, individually or in the aggregate, would have a material adverse effect on the business of the Company.
(vi) There are no legal or governmental proceedings pending or, to the knowledge of the Company, threatened, against the Company, or to which the Company or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus but are not described as required, and there are no agreements, contracts, indentures, leases or other instruments that are required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement or any Incorporated Document that are not described or filed as required by the Act or the Exchange Act, as applicable.
(vii) The Company is not in violation of its articles of incorporation or by-laws and has complied, in all respects material to the Company, with any law, ordinance, administrative or governmental rule or regulation applicable to the Company or any decree applicable to the Company of any court or governmental agency or body having jurisdiction over the Company, and is not in default in any material respect in the performance of any obligation, agreement or condition contained in any material bond, debenture, note or other evidence of indebtedness or in any material agreement, lease or other instrument to which the Company is a party or by which its properties are bound.
(viii) Neither the execution, delivery or performance of this Agreement by the Company nor the issuance and sale of the Shares contemplated hereby (1) requires any consent, approval, authorization or other order of or registration or filing with, any court, regulatory body, administrative agency or other governmental body, agency or official on the part of the Company (except (x) authorizations and orders of the Public Utilities Commission of the State of California, which have been obtained, are in full force and effect and are sufficient to authorize the transactions contemplated hereby and (y) such as may be required for the registration of the Shares under the Act and compliance with the Exchange Act and the securities or Blue Sky laws of various jurisdictions) or (2) conflicts or will conflict with the articles of incorporation or bylaws of the Company or (3) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, any agreement, indenture, lease or other instrument to which the Company is a party or by which it or any of its properties may be bound, or violates or will violate any statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Company or any of its properties, or will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of its property or assets is subject.
(ix) The accountants, Xxxxxx Xxxxxxxx LLP, who have certified or shall certify the financial statements included or incorporated by reference in the Registration Statement and the Prospectus (or any amendment or supplement thereto), are independent public accountants as required by the Act.
(x) The financial statements, together with related schedules and notes, included or incorporated by reference in the Registration Statement and the Prospectus (and any amendment or supplement thereto for use in connection with the offering of the Shares), present fairly the financial position, results of operations and changes in financial position of the Company on the basis stated in the Registration Statement at the respective dates or for the respective periods to which they apply; such statements and related schedules and notes have been prepared in accordance with generally accepted accounting principles consistently applied throughout the periods involved, except as disclosed therein; and the other financial and statistical information and data included or incorporated by reference in the Registration Statement and the Prospectus (and any amendment or supplement thereto for use in connection with the offering of the Shares) are accurately presented and to the extent derived therefrom prepared on a basis consistent with such financial statements and the books and records of the Company.
(xi) The execution and delivery of, and the performance by the Company of its obligations under, this Agreement have been duly and validly authorized by the Company, and this Agreement has been duly executed and delivered by the Company and constitutes the valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws, and except as limited by bankruptcy, insolvency, reorganization, moratorium or other laws or equitable principles.
(xii) Except as disclosed in the Registration Statement and the Prospectus (or any amendment or supplement thereto for use in connection with the offering of the Shares), subsequent to the respective dates as of which such information is given in the Prospectus (or any amendment or supplement thereto for use in connection with the offering of the Shares), the Company has not incurred any liability or obligation, direct or contingent, or entered into any transaction, in each case other than in the ordinary course of business, that is material to the Company, and there has not been any change (other than pursuant to the Company's Dividend Reinvestment and Common Share Purchase Plan and Investment Incentive Program) in the capital stock, or material increase in the short-term debt or long-term debt, of the Company, or any material adverse change, or any development involving, or which would reasonably be expected to involve, a prospective material adverse change, in the condition (financial or other), business, net worth or results of operations of the Company.
(xiii) The Company has good and marketable title to all property (real and personal) described in the Prospectus as being owned by it, free and clear of all liens, claims, security interests or other encumbrances except such as are described in the Registration Statement and the Prospectus or in a document filed as an exhibit to the Registration Statement and except for liens, claims, security interests or other encumbrances that would not, individually or in the aggregate, have a material adverse effect on the business of the Company; and all the property described in the Prospectus as being held under lease by the Company is held by it under valid, subsisting and enforceable leases except in any respect that would not, individually or in the aggregate, have a material adverse effect on the business of the Company.
(xiv) The Company has such permits, licenses, franchises and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its properties and to conduct its business, in all material respects, in the manner described in the Prospectus, subject to such qualifications as may be set forth in the Prospectus; the Company has fulfilled and performed all its obligations with respect to such permits where the failure to fulfill or perform would have a material adverse effect on the business of the Company and has no knowledge of the occurrence of any event which, pursuant to the terms thereof, allows, or after notice or lapse of time would allow, the early revocation or termination thereof or results in any other material impairment of the rights of the holder of any such permit, subject in each case to such qualification as may be set forth in the Prospectus.
(xv) No holder of any security of the Company has any right to require registration of shares of Common Shares or any other security of the Company because of the filing of the registration statement or consummation of the transactions contemplated by this Agreement.
(xvi) The Company is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
(a) Any certificate signed by any officer of the Company and delivered to you or to counsel for the Underwriters shall be deemed a representation and warranty by the Company to each Underwriter as to the matters covered thereby. 5.
Appears in 1 contract
Samples: Underwriting Agreement (Southern California Water Co)
Representations, Warranties and Agreements of the Company. Each of the The Company represents and the Operating Partnership, jointly and severally, represent and warrant towarrants to you, and agree withagrees with you, DBS, on and as of (i) the date hereof, (ii) each date on which the Company delivers a Transaction Notice (the “Time of Delivery”) or executes and delivers a Terms Agreement, (iii) each Time of Sale (as defined below), (iv) each Settlement Date and (v) each Bring-Down Delivery Date (as defined in Section 6(b)) (each such date listed in (i) through (v), a “Representation Date”), as followsthat:
(a) There is no The Registration Statement, including each Preliminary Prospectus and the Prospectus, has been prepared by the Company in conformity with the requirements of the Securities Act and the Rules and Regulations thereunder and has been filed with the Commission; such amendments to such Registration Statement, and each Preliminary Prospectus and Prospectus and such abbreviated registration statements pursuant to Rule 462(b) of the Rules and Regulations as may have been required prior to the date hereof have been similarly prepared and filed with the Commission; and the Company will file such additional amendments to such Registration Statement, Preliminary Prospectuses and Prospectus and such abbreviated registration statements as may hereafter be required. Copies of such Registration Statement, Preliminary Prospectuses and Prospectus, including all amendments thereto, and of any abbreviated registration statement pursuant to Rule 462(b) of the Rules and Regulations have been or, if filed after the Commencement Date, will be, delivered to you and your counsel;
(b) The Registration Statement, including a Preliminary Prospectus, has been filed with the Commission and will become effective within a reasonable period of time following execution of this Agreement; and the Commission has not issued or to the Company’s knowledge threatened to issue any order refusing or suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus or Prospectus or instituted or to the Company’s knowledge threatened to institute proceedings for that purpose. The Registration Statement, each Preliminary Prospectus and the Prospectus or any Permitted Free Writing Prospectus, and, to the knowledge of the Company, no proceeding for that purpose or pursuant to Section 8A of the Act against the Company or related to the offering has been initiated or threatened by the Commission; no notice of objection of the Commission to the use of such Registration Statement pursuant to Rule 401(g)(2) under the Act has been received by the Company; the Registration Statement complied when it initially became effective, complies as of the date hereof comply and, as then amended or supplemented, as of each other Representation Date if applicable, will comply, comply in all material respectsrespects with the Securities Act, with the Exchange Act and the applicable Rules and Regulations of the Commission thereunder;
(c) At the respective times the Registration Statement (or any post effective amendment thereto, including a registration statement (if any) filed pursuant to Rule 462(b) of the Rules and Regulations increasing the size of the offering registered under the Act) is or was declared effective by the Commission, and at the Closing Date, (i) the Registration Statement (as so amended and/or supplemented) conformed or will conform in all material respects to the requirements of the Act; Act and the conditions to the use of Form S-3ASR in connection with the offering Rules and sale of the Shares as contemplated hereby have been satisfied; Regulations, and (ii) the Registration Statement meets, and the offering and sale of the Shares (as contemplated hereby complies with, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5)); the Prospectus complied or will comply, at the time it was or will be filed with the Commission, and will comply, as then so amended or and/or supplemented, as of each Representation Date (other than the date hereof), in all material respects, with the requirements of the Act; the Registration Statement ) did not, as of the time of its initial effectiveness, and does not or will not, as then amended or supplemented, as of each Representation Date, contain not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; as except that the foregoing shall not apply to statements in or omissions from any such document in reliance upon, and in conformity with, written information furnished to the Company by you, specifically for use in the preparation thereof;
(d) None of each Representation Date (other than the date hereof), any Preliminary Prospectus or the Prospectus, as then amended or supplementedany amendments or supplements thereto, together with all of at the then issued Permitted Free Writing Prospectusestime they were or are issued, if any, contained or will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary into make the statements therein, in light of the circumstances in which they were or are made, not misleading; except that the foregoing shall not apply to statements in or omissions from any such document in reliance upon, and in conformity with, written information furnished to the Company by you, specifically for use in the preparation thereof. Each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto conformed or will conform in all material respects to the requirements of the Securities Act, the Exchange Act and the Rules and Regulations, and each Preliminary Prospectus and the Prospectus delivered to you for use in connection with the Offering was or will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EXXXX, except to the extent permitted by Regulation S-T;
(e) As of the Applicable Time, neither (A) the Issuer-Represented General Free Writing Prospectus(es), if any issued at or prior to the Applicable Time, the Statutory Prospectus, nor (B) any individual Issuer-Represented Limited-Use Free Writing Prospectus included any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from any Prospectus included in the Registration Statement or any Issuer-Represented Free Writing Prospectus based upon and in conformity with written information furnished to the Company by you specifically for use therein. As used in this paragraph and elsewhere in this Agreement:
Appears in 1 contract
Samples: Placement Agent Agreement (Amaizing Energy Holding Company, LLC)
Representations, Warranties and Agreements of the Company. Each of the The Company represents and the Operating Partnership, jointly and severally, represent and warrant warrants to, and agree agrees with, DBSXxxxx Fargo, on and as of (i) the date hereof, (ii) each date on which the Company delivers and Xxxxx Fargo agree upon a Transaction Notice (the a “Time of DeliveryAcceptance”) or the Company executes and delivers a Terms Agreement, (iii) each Time of Sale (as defined below), (iv) each Settlement Date and (v) each Bring-Down Delivery Date (as defined in Section 6(b)) (each such date listed in (i) through (v), a “Representation Date”), as follows:
(a) There is no order preventing or suspending the use of the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus, and, to the knowledge of the Company, no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering has been initiated or threatened by the Commission; no notice of objection of the Commission to the use of such Registration Statement pursuant to Rule 401(g)(2) under the Securities Act has been received by the Company; the Registration Statement complied when it initially became effective, complies as of the date hereof and, as then amended or supplemented, as of each other Representation Date (other than the date hereof) will comply, in all material respects, with the requirements of the Securities Act; the conditions to the use of Form S-3ASR S-3 in connection with the offering and sale of the Shares as contemplated hereby have been satisfied; the Registration Statement meets, and the offering and sale of the Shares as contemplated hereby complies with, the requirements of Rule 415 under the Securities Act (including, without limitation, Rule 415(a)(5)); the Prospectus complied or will comply, at the time it was or will be filed with the Commission, and will comply, as then amended or supplemented, as of each Representation Date (other than the date hereof), in all material respects, with the requirements of the Securities Act; the Registration Statement did not, as of the time of its initial effectiveness, and does not or will not, as then amended or supplemented, as of each Representation Date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; as of each Representation Date (other than the date hereof), the Prospectus, as then amended or supplemented, together with all of the then issued Permitted Free Writing Prospectuses, if any, will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no representation or warranty with respect to any statement or omission in the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus in reliance upon and in conformity with information concerning Xxxxx Fargo and furnished in writing by or on behalf of Xxxxx Fargo expressly for use in
Appears in 1 contract
Samples: Distribution Agreement (Martin Marietta Materials Inc)
Representations, Warranties and Agreements of the Company. Each As of the --------------------------------------------------------- date hereof, the Company represents and the Operating Partnership, jointly and severally, represent and warrant warrants to, and agree agrees with, DBS, on and as of (i) the date hereof, (ii) each date on which the Company delivers a Transaction Notice (the “Time of Delivery”) or executes and delivers a Terms Agreement, (iii) each Time of Sale (as defined below), (iv) each Settlement Date and (v) each Bring-Down Delivery Date (as defined in Section 6(b)) (each such date listed in (i) through (v), a “Representation Date”), as followsInitial Purchasers that:
(a) There is no order preventing or suspending The Offering Memorandum (including the use of information incorporated by reference therein (the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus, and, to the knowledge of the Company, no proceeding for that purpose or pursuant to Section 8A of the Act against the Company or related to the offering has been initiated or threatened by the Commission; no notice of objection of the Commission to the use of such Registration Statement pursuant to Rule 401(g)(2"Incorporated Documents") under the Act has been received by the Company; the Registration Statement complied when it initially became effective, complies as of the date hereof and, as then amended or supplemented, as of each other Representation Date will comply, in all material respects, with the requirements of the Act; the conditions to the use of Form S-3ASR in connection with the offering and sale of the Shares as contemplated hereby have been satisfied; the Registration Statement meetsdoes not, and the offering and sale of the Shares as contemplated hereby complies with, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5)); the Prospectus complied any supplement or will comply, at the time amendment to it was or will be filed with the Commission, and will comply, as then amended or supplemented, as of each Representation Date (other than the date hereof), in all material respects, with the requirements of the Act; the Registration Statement did not, as of the time of its initial effectiveness, and does not or will not, as then amended or supplemented, as of each Representation Date, contain an any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading; , except that the representations and warranties contained in this paragraph (a) shall not apply to statements in or omissions from the Offering Memorandum (or any supplement or amendment thereto) based upon information relating to the Initial Purchasers furnished to the Company in writing by the Initial Purchasers expressly for use therein. No stop order preventing the use of the Offering Memorandum, or any amendment or supplement thereto, or any order asserting that any of the transactions contemplated by this Agreement are subject to the registration requirements of the Act, has been received by the Company, and, to the knowledge of the Company, no such stop order or other order has been issued. The Incorporated Documents, at the time they were or hereafter are filed or last amended, as the case may be, with the Commission, complied and will comply in all material respects with the requirements of the Exchange Act.
(b) Each of the Company and its subsidiaries has been duly incorporated, is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation and has the corporate power and authority to carry on its business as described in the Offering Memorandum and to own, lease and operate its properties, and each Representation Date is duly qualified and is in good standing as a foreign corporation authorized to do business in each jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the business, prospects, financial condition or results of operations of the Company and its subsidiaries, taken as a whole (other than a "Material Adverse Effect"). -----------------------
(c) All outstanding shares of capital stock of the date hereofCompany have been duly authorized and validly issued and are fully paid, non-assessable and not subject to any preemptive or similar rights.
(e) This Agreement has been duly authorized, executed and delivered by the Company.
(f) The Indenture has been duly authorized by the Company and, on the Closing Date, will have been validly executed and delivered by the Company. When the Indenture has been duly executed and delivered by the Company and the Trustee, the Indenture will be a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms except as (i) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (ii) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability. On the Closing Date, the Indenture will conform in all material respects to the requirements of the Trust Indenture Act of 1939, as amended (the "TIA" or "Trust Indenture Act"), and the Prospectus, as then amended or supplemented, together with all --- ------------------- rules and regulations of the then issued Permitted Free Writing ProspectusesCommission applicable to an indenture which is qualified thereunder, if anyassuming that there exists no "conflicting interest" (as that term is defined in Section 310(b)(3) of the TIA).
(g) The Notes have been duly authorized and, on the Closing Date, will not contain an untrue statement have been validly executed and delivered by the Company. When the Notes have been issued, executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Initial Purchasers in accordance with the terms of this Agreement, the Notes will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Company, enforceable in accordance with their terms except as (i) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (ii) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability. On the Closing Date, the Notes will conform as to legal matters to the description thereof contained in the Offering Memorandum.
(h) The Notes are convertible into Common Stock in accordance with the terms of the Indenture; the shares of Common Stock initially issuable upon conversion of the Notes have been duly authorized and reserved for issuance upon such conversion and, when issued upon such conversion, will be validly issued, fully paid and nonassessable, will conform to the description thereof contained in the Offering Memorandum and will be duly authorized for listing on the NYSE, subject to notice of official issuance; the Company has the authorized and outstanding capital stock as set forth in the Offering Memorandum; and the stockholders of the Company or other holders of the Company's securities have no pre-emptive or similar rights with respect to the Notes or the Common Stock issuable upon conversion of the Notes.
(i) The Registration Rights Agreement has been duly authorized by the Company and, on the Closing Date, will have been duly executed and delivered by the Company. When the Registration Rights Agreement has been duly executed and delivered by the Company and the other parties thereto, the Registration Rights Agreement will be a material fact valid and binding agreement of the Company, enforceable against the Company in accordance with its terms except as (i) the enforceability thereof may be limited by bankruptcy, insolvency or omit to state a material fact necessary insimilar laws affecting creditors' rights generally and (ii) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general
Appears in 1 contract
Samples: Purchase Agreement (Health Management Associates Inc)
Representations, Warranties and Agreements of the Company. Each of the The Company represents and the Operating Partnership, jointly and severally, represent and warrant warrants to, and agree agrees with, DBSthe Agent, on and as of (i) the date hereof, (ii) each date on which the Company delivers receives a Transaction Notice Acceptance (the “Time of DeliveryAcceptance”), (iii) or each date on which the Company executes and delivers a Terms Agreement, (iiiiv) each Time of Sale (as defined belowin Section 3(a)), (ivv) each Settlement Date and (vvi) each Bring-Down Delivery Date (as defined in Section 6(b)) (each such date listed in (i) through (vvi), a “Representation Date”), as follows:
(a) There The Registration Statement has been filed with the Commission not earlier than three years prior to the date hereof; there is no order preventing or suspending the use of the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus, and, to the knowledge of the Company, no proceeding for that purpose or pursuant to Section 8A of the Act against the Company or related to the offering has been initiated or threatened by the Commission; no notice of objection of the Commission to the use of such Registration Statement pursuant to Rule 401(g)(2) under the Act has been received by the Company; the Registration Statement complied when it initially became effective, complies as of the date hereof and, as then amended or supplemented, as of each other Representation Date will comply, in all material respects, with the requirements of the Act; the conditions to the use of Form S-3ASR S-3 in connection with the offering and sale of the Shares as contemplated hereby have been satisfied; the Registration Statement meets, and the offering and sale of the Shares as contemplated hereby complies comply with, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5)); the Prospectus complied or will comply, at the time it was or will be filed with the Commission, and will comply, as then amended or supplemented, as of each Representation Date (other than the date hereof)Date, in all material respects, with the requirements of the Act; the Registration Statement did not, as of the time of its initial effectiveness, and does not or will not, as then amended or supplemented, as of each Representation Date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; as of each Representation Date (other than the date hereof)Date, the Prospectus, as then amended or supplemented, together with all of the then issued Permitted Free Writing Prospectuses, if any, will not contain an untrue statement of a material fact or omit to state a material fact necessary inin 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 representation or warranty with respect to any statement in or omission from the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus made in reliance upon and in conformity with information concerning the Agent and furnished in writing by or on behalf of the Agent expressly for use in the Registration Statement, the Prospectus or such Permitted Free Writing Prospectus (it being understood that such information consists solely of the information specified in Section 9(b)). As used herein, “Time of Sale” means (i) with respect to each offering of Shares pursuant to this Agreement, the time of the Agent’s initial entry into contracts with investors for the sale of such Shares and (ii) with respect to each offering of Shares pursuant to any relevant Terms Agreement, the time of sale of such Shares.
Appears in 1 contract
Samples: Distribution Agreement (Red Robin Gourmet Burgers Inc)
Representations, Warranties and Agreements of the Company. Each of the The Company represents and the Operating Partnership, jointly and severally, represent and warrant warrants to, and agree agrees with, DBSeach of the Agents, on and as of (i) the date hereof, (ii) each date on which the Company delivers receives a Transaction Notice Acceptance (the “Time of DeliveryAcceptance”), (iii) or each date on which the Company executes and delivers a Terms Agreement, (iiiiv) each Time of Sale (as defined belowin Section 3(a)), (ivv) each Settlement Date and (vvi) each Bring-Down Delivery Date (as defined in Section 6(b)) (each such date listed in (i) through (vvi), a “Representation Date”), as follows:
(a) There The Registration Statement was filed with the Commission not earlier than three years prior to the date hereof; there is no order preventing or suspending the use of the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus, and, to the knowledge of the Company, no proceeding for that purpose or pursuant to Section 8A of the Act against the Company or related to the offering has been initiated or threatened by the Commission; no notice of objection of the Commission to the use of such Registration Statement pursuant to Rule 401(g)(2) under the Act has been received by the Company; the Registration Statement complied when it initially became effective, complies as of the date hereof and, as then amended or supplemented, as of each other Representation Date will comply, in all material respects, with the requirements of the Act; the conditions to the use of Form S-3ASR S-3 in connection with the offering and sale of the Shares as contemplated hereby have been satisfied; the Registration Statement meets, and the offering and sale of the Shares as contemplated hereby complies comply with, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5)); the Prospectus complied or will comply, at the time it was or will be filed with the Commission, and will comply, as then amended or supplemented, as of each Representation Date (other than the date hereof)Date, in all material respects, with the requirements of the Act; the Registration Statement did not, as of the time of its initial effectiveness, and does not or will not, as then amended or supplemented, as of each Representation Date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; as of each Representation Date (other than the date hereof)Date, the Prospectus, as then amended or supplemented, together with all of the then issued Permitted Free Writing Prospectuses, if any, will not contain an untrue statement of a material fact or omit to state a material fact necessary in
Appears in 1 contract
Representations, Warranties and Agreements of the Company. Each of the The Company represents and the Operating Partnership, jointly and severally, represent and warrant warrants to, and agree with, DBS, on and agrees with the Initial Purchaser that as of (i) the date hereof, (ii) each date on which the Company delivers a Transaction Notice (the “Time of Delivery”) or executes and delivers a Terms Agreement, (iii) each Time of Sale (as defined below), (iv) each Settlement Date and (v) each Bring-Down Delivery Date (as defined in Section 6(b)) (each such date listed in (i) through (v), a “Representation Date”), as follows:
(a) There is no order preventing or suspending the use of the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus, and, to the knowledge of the Company, no proceeding for that purpose or pursuant to Section 8A of the Act against the Company or related to the offering has been initiated or threatened by the Commission; no notice of objection of the Commission to the use of such Registration Statement pursuant to Rule 401(g)(2) under the Act has been received by the Company; the Registration Statement complied when it initially became effective, complies as of the date hereof and, as then amended or supplemented, as of each other Representation Date will comply, in all material respects, with the requirements of the Act; the conditions to the use of Form S-3ASR in connection with the offering and sale of the Shares as contemplated hereby have been satisfied; the Registration Statement meets, and the offering and sale of the Shares as contemplated hereby complies with, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5)); the Prospectus complied or will comply, The Memorandum at the time it was or will be filed with the Commission, and will comply, as then amended or supplemented, as of each Representation Date (other than the date hereof), in all material respects, with the requirements of the Act; the Registration Statement did does not, as of and at the time of its initial effectivenessClosing Date, and does not or will not, as then amended or supplemented, as of each Representation Date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; as of each Representation Date (other than the date hereof), the Prospectus, as then amended or supplemented, together with all of the then issued Permitted Free Writing Prospectuses, if any, will not contain an any untrue statement of a material fact or omit to state a material fact necessary into make the statements therein, in the light of the circumstances under which they were made, not misleading, except that the representations and warranties set forth in this Section 1(a) do not apply to statements or omissions in the Memorandum based upon information furnished to the Company in writing by or on behalf of the Initial Purchaser expressly for use therein. Reference herein to the Memorandum shall be deemed to refer to and include any document filed by the Company under the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), which is incorporated in the Memorandum by reference.
(b) It is not required by applicable law or regulation in connection with the offer, sale and delivery of the Notes to you in the manner contemplated by this Agreement to register the Notes under the Securities Act or to qualify the Indenture in respect of the Notes under the Trust Indenture Act of 1939, as amended (the "TRUST INDENTURE ACT").
(c) The Company and each of its Significant Subsidiaries (as defined in Section 14) have been duly organized and are validly existing and in good standing under the laws of their respective jurisdictions of organization, are duly qualified to do business and are in good standing in each jurisdiction in which their respective ownership or lease of property or the conduct of their respective businesses requires such qualification, save where the failure to be so qualified would not reasonably be expected to have a material adverse effect on the business or property of the Company and its subsidiaries taken as a whole, and each has all power and authority necessary to own or hold their respective properties and to conduct the businesses in which they are engaged.
(d) The Company has an authorized capitalization as set forth in the Memorandum, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and conform to the description thereof contained, or incorporated by reference, in the Memorandum; all of the issued shares of capital stock, partnership interests or limited liability membership interests, as the case may, be of each Significant Subsidiary of the Company have been duly and validly authorized and issued and (except for partnership interests of general partners and except to the extent the limited liability company agreements governing the respective limited liability companies provide otherwise) are fully paid and non-assessable and (except for partnership interests in CapStar Management Company, L.P. and CapStar Management Company II, L.P. owned by third parties) are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims.
(e) The Indenture has been duly authorized and, when duly executed and delivered by the proper officers of the Company (assuming due execution and delivery by the Trustee) and delivered by the Company, will constitute a valid and legally binding agreement of the Company enforceable against the Company in accordance with its terms except as such enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance or transfer, reorganization, liquidation, moratorium or other similar laws affecting the rights and remedies of creditors generally and except as may be subject to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
(f) This Agreement has been duly authorized, executed and delivered by the Company and the Registration Rights Agreement has been duly authorized and will be duly delivered and executed by the Company.
(g) Except where it would not reasonably be expected to have a material adverse effect on the consolidated financial position, stockholder's equity, results of operations, business or prospects of the Company and its subsidiaries taken as a whole, (i) the execution, delivery and performance of this Agreement, the Registration Rights Agreement, the Indenture and the Notes, and the consummation by the Company of the transactions contemplated herein (the "TRANSACTIONS") will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of its Significant Subsidiaries is a party or by which the Company or any of its Significant Subsidiaries is bound or to which any of the properties or assets of the Company or any of its Significant Subsidiaries is subject, (ii) nor will such actions result in any violation of the provisions of the charter or by-laws of the Company or any of its Significant Subsidiaries or any statute or order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company, any of its Significant Subsidiaries or any of their properties or assets; and (iii) except for such consents, approvals, authorizations, registrations or qualifications as may be required under applicable state securities laws in connection with the purchase and distribution of the Notes by the Initial Purchaser, and except for registration of the Exchange Offer (as defined in the Registration Rights Agreement) under the Securities Act and applicable state securities laws, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body is required for the Transactions.
(h) Neither the Company nor any of its Significant Subsidiaries has sustained, since the date of the latest quarterly financial statements included or incorporated by reference in the Memorandum, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Memorandum; and, since such date, there has not been any change in the capital stock or long-term debt of the Company or any of its Significant Subsidiaries or any material adverse change, or any development involving a prospective material adverse change, in or affecting the general affairs, management financial position, stockholders' equity or results of operations of the Company and its subsidiaries taken as a whole, otherwise than as set forth or contemplated in the Memorandum.
(i) The financial statements (including the related notes and supporting schedules) included in the Memorandum present fairly the financial condition and results of operations of the entities purported to be shown thereby, at the dates and for the periods indicated, and have been prepared in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods involved.
(j) KPMG Peat Marwick LLP, who have certified certain financial statements of the Company, whose report is included in the Memorandum and who have delivered the initial letter referred to in Section 7(e) hereof, are independent public accountants as required by the Securities Act and the Rules and Regulations during the periods covered by the financial statements on which they reported contained in the Memorandum.
(k) There are no legal or governmental proceedings pending to which the Company or any of its Significant Subsidiaries is a party or of which any property or asset of the Company or any of its Significant Subsidiaries is the subject which, if determined adversely to the Company or any of its subsidiaries, could be expected to have a material adverse effect on the consolidated financial position, stockholders' equity, results of operations, business or prospects of the Company and its subsidiaries taken as a whole; and to the best of the Company's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others that is required to be disclosed in the Memorandum which is not so disclosed.
(l) No relationship, direct or indirect, exists between or among the Company on the one hand, and the directors, officers, stockholders, customers or suppliers of the Company on the other hand, which is required to be disclosed in the Memorandum which is not so disclosed.
(m) Since the date as of which information is given in the Memorandum through the date hereof, and except as may otherwise be disclosed in the Memorandum, the Company has not (i) issued or granted any securities, other than in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants, or in connection with a dividend reinvestment or stock purchase plan,(ii) incurred any liability or obligation, direct or contingent, other than liabilities and obligations which were incurred in the ordinary course of business,(iii) entered into any transaction not in the ordinary course of business or (iv)in the case of the Company, declared or paid any dividend on its capital stock.
(n) Neither the Company nor any of its Significant Subsidiaries (i) is in violation of its charter or by-laws, (ii) is in default in any material respect, and no event has occurred which, with notice or lapse of time or both, would constitute such a default, in the due performance or observance of any term, covenant or condition contained in any material indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which it is a party or by which it is bound or to which any of its properties or assets is subject except where it would not reasonably be expected to have a material adverse effect on the consolidated financial position, stockholder's equity, results of operations, business or prospects of the Company and its subsidiaries taken as a whole, or (iii) is in violation in any material respect of any law, ordinance, governmental rule, regulation or court decree to which it or its properties or assets may be subject or has failed to obtain any material license, permit, certificate, franchise or other governmental authorization or permit necessary to the ownership of its properties or assets or to the conduct of its business except where it would not reasonably be expected to have a material adverse effect on the consolidated financial position, stockholders' equity, results of operations, business or prospects of the Company and its subsidiaries taken as a whole.
(o) Neither the Company nor any Significant Subsidiary is an "INVESTMENT COMPANY" within the meaning of such term under the Investment Company Act of 1940, as amended, and the rules and regulations of the Securities and Exchange Commission (the "COMMISSION") thereunder.
(p) Neither the Company nor any of its affiliates (as defined in Rule 501(b) of Regulation D under the Securities Act, an "AFFILIATE") has directly, or through any agent, (i) sold, offered for sale, solicited offers to buy or otherwise negotiated in respect of, any security (as defined in the Securities Act) which is or will be integrated with the sale of the Notes in a manner that would require the registration under the Securities Act of the Notes or (ii) engaged in any form of general solicitation or general advertising in connection with the offering of the Notes (as those terms are used in Regulation D under the Securities Act), or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act.
Appears in 1 contract
Representations, Warranties and Agreements of the Company. Each of the The Company represents and the Operating Partnership, jointly and severally, represent and warrant warrants to, and agree agrees with, DBSeach of the Agents, on and as of (i) the date hereof, (ii) each date on which the Company delivers receives a Transaction Notice Acceptance (the “Time of DeliveryAcceptance”), (iii) or each date on which the Company executes and delivers a Terms Agreement, (iiiiv) each Time of Sale (as defined belowin Section 3(a)), (ivv) each Settlement Date and (vvi) each Bring-Down Delivery Date (as defined in Section 6(b)) (each such date listed in (i) through (vvi), a “Representation Date”), as follows:
(a) There The Registration Statement is an “automatic shelf registration statement” as defined under Rule 405 of the Act that has been filed with the Commission not earlier than three years prior to the date hereof; there is no order preventing or suspending the use of the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus, and, to the knowledge of the Company, no proceeding for that purpose or pursuant to Section 8A of the Act against the Company or related to the offering has been initiated or threatened by the Commission; no notice of objection of the Commission to the use of such Registration Statement pursuant to Rule 401(g)(2) under the Act has been received by the Company; the Registration Statement complied when it initially became effective, complies as of the date hereof and, as then amended or supplemented, as of each other Representation Date will comply, in each case, in all material respects, with the requirements of the Act; the conditions to the use of Form S-3ASR S-3 in connection with the offering and sale of the Shares as contemplated hereby have been satisfied; the Registration Statement meets, and the offering and sale of the Shares as contemplated hereby complies comply with, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5)); the Prospectus complied or will comply, at the time it was or will be filed with the Commission, and will comply, as then amended or supplemented, as of each Representation Date (other than the date hereof)Date, in all material respects, with the requirements of the Act; the Registration Statement did not, as of the time of its initial effectiveness, and does not or will not, as then amended or supplemented, as of each Representation Date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; as of each Representation Date (other than the date hereof)Date, the Prospectus, as then amended or supplemented, together with all of the then issued Permitted Free Writing Prospectuses, if any, will not contain an untrue statement of a material fact or omit to state a material fact necessary inor
Appears in 1 contract
Samples: Distribution Agreement (Strategic Hotels & Resorts, Inc)
Representations, Warranties and Agreements of the Company. Each of the Company and the Operating Partnership, jointly and severally, represent represents and warrant warrants to, and agree agrees with, DBSJPMS, on and as of (i) the date hereof, (ii) each date on which the Company delivers and JPMS agree upon a Transaction Notice (the a “Time of DeliveryAcceptance”) or executes and delivers a Terms Agreement, (iii) each Time of Sale (as defined below), (iv) each Settlement Date and (v) each Bring-Down Delivery Date (as defined in Section 6(b)) (each such date listed in (i) through (v), a “Representation Date”), as follows:
(a) There is no order preventing or suspending the use of the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus, and, to the knowledge of the Company, no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Shares pursuant to the Distribution Agreements has been initiated or threatened by the Commission; no notice of objection of the Commission to the use of such Registration Statement pursuant to Rule 401(g)(2) under the Securities Act has been received by the Company; the Registration Statement complied when it initially became effective, complies as of the date hereof and, as then amended or supplemented, as of each other Representation Date (other than the date hereof) will comply, in all material respects, with the requirements of the Securities Act; the conditions to the use of Form S-3ASR S-3 in connection with the offering and sale of the Shares as contemplated hereby have been satisfied; the Registration Statement meets, and the offering and sale of the Shares as contemplated hereby complies with, the requirements of Rule 415 under the Securities Act (including, without limitation, Rule 415(a)(5)); the Prospectus complied or will comply, at the time it was or will be filed with the Commission, and will comply, as then amended or supplemented, as of each Representation Date (other than the date hereof), in all material respects, with the requirements of the Securities Act; the Registration Statement did not, as of the time of its initial effectiveness, and does not or will not, as then amended or supplemented, as of each Representation Date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; as of each Representation Date (other than the date hereof), the Prospectus, as then amended or supplemented, together with all of the then issued Permitted Free Writing Prospectuses, if any, will not contain an untrue statement of a material fact or omit to state a material fact necessary inan
Appears in 1 contract
Representations, Warranties and Agreements of the Company. Each of the The Company represents and the Operating Partnership, jointly and severally, represent and warrant warrants to, and agree agrees with, DBSthe Agent, on and as of (i) the date hereof, (ii) each date on which the Company delivers receives a Transaction Notice Acceptance (the “Time of DeliveryAcceptance”), (iii) or each date on which the Company executes and delivers a Terms Agreement, (iiiiv) each Time of Sale (as defined belowin Section 3(a)), (ivv) each Settlement Date Date, and (vvi) each Bring-Down Delivery Date (as defined in Section 6(b)) (each such date listed in (i) through (vvi), a “Representation Date”), as follows:
(a) a. The Registration Statement has been filed with the Commission not earlier than three years prior to the date hereof. There is no order preventing or suspending the use of the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus, and, to the knowledge of the Company, no proceeding for that purpose or pursuant to Section 8A of the Act against the Company or related to the offering offer and sale of the Shares has been initiated or threatened by the Commission; no notice of objection of the Commission to the use of such Registration Statement pursuant to Rule 401(g)(2) under the Act has been received by the Company; the Registration Statement complied when it initially became effective, complies as of the date hereof and, as then amended or supplemented, as of each other Representation Date will comply, in each case, in all material respects, with the requirements of the Act; the conditions to the use of Form S-3ASR S-3 in connection with the offering and sale of the Shares as contemplated hereby have been satisfied; the Registration Statement meets, and the offering and sale of the Shares as contemplated hereby complies comply with, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5)); the Prospectus complied or will comply, at the time it was or will be filed with the Commission, and will comply, as then amended or supplemented, as of each Representation Date (other than the date hereof)Date, in all material respects, with the requirements of the Act; the Registration Statement did not, as of the time of its initial effectiveness, and does not or will not, as then amended or supplemented, as of each Representation Date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; as of each Representation Date (other than the date hereof), the Prospectus, as then amended or supplemented, together with all of the then issued Permitted Free Writing Prospectuses, if any, will not contain an untrue statement of a material fact or omit to state a material fact necessary in
Appears in 1 contract
Representations, Warranties and Agreements of the Company. Each of the The Company represents and the Operating Partnership, jointly and severally, represent and warrant warrants to, and agree agrees with, DBSthe Agent, on and as of (i) the date hereof, (ii) each date on which the Company delivers receives a Transaction Notice Acceptance (the “Time of DeliveryAcceptance”), (iii) or each date on which the Company executes and delivers a Terms Agreement, (iiiiv) each Time of Sale (as defined belowin Section 3(a)), (ivv) each Settlement Date and (vvi) each Bring-Down Delivery Date (as defined in Section 6(b)) (each such date listed in (i) through (vvi), a “Representation Date”), as follows:
(a) There The Registration Statement is an “automatic shelf registration statement” as defined under Rule 405 of the Act that has been filed with the Commission not earlier than three years prior to the date hereof; there is no order preventing or suspending the use of the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus, and, to the knowledge of the Company, no proceeding for that purpose or pursuant to Section 8A of the Act against the Company or related to the offering has been initiated or threatened by the Commission; no notice of objection of the Commission to the use of such Registration Statement pursuant to Rule 401(g)(2) under the Act has been received by the Company; the Registration Statement complied when it initially became effective, complies as of the date hereof and, as then amended or supplemented, as of each other Representation Date will comply, in all material respects, with the requirements of the Act; the conditions to the use of Form S-3ASR S-3 in connection with the offering and sale of the Shares as contemplated hereby have been satisfied; the Registration Statement meets, and the offering and sale of the Shares as contemplated hereby complies with, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5)); the Prospectus complied or will comply, at the time it was or will be filed with the Commission, and will comply, as then amended or supplemented, as of each Representation Date (other than the date hereof)Date, in all material respects, with the requirements of the Act; the Registration Statement did not, as of the time of its initial effectiveness, and does not or will not, as then amended or supplemented, as of each Representation Date, contain an any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; as of each Representation Date (other than the date hereof)Date, the Prospectus, as then amended or supplemented, together with all of the then issued Permitted Free Writing Prospectuses, if any, will not contain an any untrue statement of a material fact or omit to state a material fact necessary inin 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 representation or warranty with respect to any statement in or omission from the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus made in reliance upon and in conformity with information concerning the Agent and furnished in writing by or on behalf of the Agent expressly for use in the Registration Statement, the Prospectus or such Permitted Free Writing Prospectus (it being understood that such information consists solely of the information specified in Section 9(b)). As used herein, “Time of Sale” means (i) with respect to each offering of Shares pursuant to this Agreement, the time of the Agent’s initial entry into contracts with investors for the sale of such Shares and (ii) with respect to each offering of Shares pursuant to any relevant Terms Agreement, the time of sale of such Shares.
Appears in 1 contract
Samples: Distribution Agreement (Alder Biopharmaceuticals Inc)
Representations, Warranties and Agreements of the Company. Each of the The Company represents and the Operating Partnership, jointly and severally, represent and warrant warrants to, and agree agrees with, DBSeach Agent, on and as of (i) the date hereof, (ii) each date on which the Company delivers receives a Transaction Notice Acceptance (the “Time of DeliveryAcceptance”), (iii) or each date on which the Company executes and delivers a Terms Agreement, (iiiiv) each Time of Sale (as defined belowin Section 3(a) hereof), (ivv) each Settlement Date and (vvi) each Bring-Down Delivery Date (as defined in Section 6(b)) below) (each such date listed in (i) through (vvi), a “Representation Date”), as follows:
(a) There The Registration Statement is an “automatic shelf registration statement” as defined under Rule 405 of the Act that has been filed with the Commission not earlier than three years prior to the date hereof; there is no order preventing or suspending the use of the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus, and, to the knowledge of the Company, no proceeding for that purpose or pursuant to Section 8A of the Act against the Company or related to the offering has been initiated or or, to the knowledge of the Company, threatened by the Commission; no notice of objection of the Commission to the use of such Registration Statement pursuant to Rule 401(g)(2) under the Act has been received by the Company; the Registration Statement complied when it initially became effective, complies as of the date hereof and, as then amended or supplemented, as of each other Representation Date will comply, in all material respects, with the requirements of the Act; the conditions to the use of Form S-3ASR S-3 in connection with the offering and sale of the Shares as contemplated hereby have been satisfied; the Registration Statement meets, and the offering and sale of the Shares as contemplated hereby complies with, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5)); the Prospectus complied or will comply, at the time it was or will be filed with the Commission, and will comply, as then amended or supplemented, as of each Representation Date (other than the date hereof)Date, in all material respects, with the requirements of the Act; the Registration Statement did not, as of the time of its initial effectiveness, and does not or will not, as then amended or supplemented, as of each Representation Date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; as of each Representation Date (other than the date hereof)Date, the Prospectus, as then amended or supplemented, together with all of the then issued Permitted Free Writing Prospectuses, if any, will not contain an untrue statement of a material fact or omit to state a material fact necessary inin 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 representation or warranty with respect to any statement in or omission from the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus made in reliance upon and in conformity with information concerning any Agent and furnished in writing by or on behalf of any Agent expressly for use in the Registration Statement, the Prospectus or such Permitted Free Writing Prospectus (it being understood that such information consists solely of the information specified in Section 9(b)). As used herein, “Time of Sale” means (i) with respect to each offering of Shares pursuant to this Agreement, the time of the applicable Agent’s initial entry into contracts with investors for the sale of such Shares and (ii) with respect to each offering of Shares pursuant to any relevant Terms Agreement, the time of sale of such Shares.
Appears in 1 contract
Representations, Warranties and Agreements of the Company. Each of the The Company represents and the Operating Partnership, jointly and severally, represent and warrant warrants to, and agree agrees with, DBSeach Agent party hereto, on and as of (i) the date hereof, (ii) each date on which the Company delivers receives a Transaction Notice Acceptance from a Designated Agent (the “Time of DeliveryAcceptance”), (iii) or each date on which the Company executes and delivers a Terms Agreement, (iiiiv) each Time of Sale (as defined belowin Section 3(a)), (ivv) each Settlement Date and Date, (vvi) each Bring-Down Delivery Date (as defined in Section 6(b)) and (vii) each date on which the Company executes and delivers a Joinder Agreement (each such date listed in (i) through (vvii), a “Representation Date”), as follows:
(a) There The Company meets the requirements for use of Form F-3 under the 1933 Act. The Registration Statement is an “automatic shelf registration statement” (as defined in Rule 405) and the Shares have been and remain eligible for registration by the Company on such automatic shelf registration statement. Each of the Registration Statement and any post-effective amendment thereto has become effective under the 1933 Act. No stop order suspending the effectiveness of the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus, and, no order preventing or suspending the use of the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus, andProspectus has been issued and no proceedings for any of those purposes have been instituted or are pending or, to the knowledge of the Company’s knowledge, no proceeding for that purpose or pursuant to Section 8A of the Act against the contemplated. The Company or related to the offering has been initiated or threatened by the Commission; no notice of objection of complied with each request (if any) from the Commission to for additional information. The Registration Statement, at the use time of such Registration Statement pursuant to Rule 401(g)(2) under the Act has been received by the Company; the Registration Statement complied when it initially became effective, complies its effectiveness and as of the date hereof and, as then amended or supplemented, as of each other Representation Date will comply, in all material respects, with the requirements of the Act; the conditions to the use of Form S-3ASR in connection with the offering Prospectus and sale of the Shares as contemplated hereby have been satisfied; the Registration Statement meets, and the offering and sale of the Shares as contemplated hereby complies with, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5)); the Prospectus complied any amendment or will complysupplement thereto, at the time it each was or will be filed with the Commission, and will complyand, as then amended or supplementedin each case, as of each Representation Date (other than the date hereof)Date, complied and will comply in all material respects, with the requirements of the Act; Act and each Prospectus delivered to the Agents for use in connection with this offering was identical to the electronically transmitted copies thereof filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieved System or any successor system thereto (EXXXX), except to the extent permitted by Regulation S-T. The documents incorporated or deemed to be incorporated by reference in the Registration Statement did notand 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 1934 Act and the rules and regulations of the Commission under the 1934 Act (the “1934 Act Regulations”).
(b) Neither the Registration Statement nor any amendment thereto, at its effective time, on the date hereof or, as of the time of its initial effectivenesseach Representation Date, and does not contained, contains or will notcontain an untrue statement of a material fact or omitted, omits or will omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. Neither the Prospectus, as then amended or supplemented, together with all of the then issued Permitted Free Writing Prospectuses, if any, as of its issue date, at the time of any filing with the Commission pursuant to Rule 424(b) and as of each Representation Date, contain included, includes or will include an untrue statement of a material fact or omitted, omits or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The documents incorporated or deemed to be incorporated by reference in the Registration Statement and the Prospectus, at the time the Registration Statement became effective or when such documents incorporated by reference were filed with the Commission, as the case may be, when read together with the other information in the Registration Statement or the Prospectus, as the case may be, did not and will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; as of each Representation Date (other than the date hereof), the Prospectus, as then amended or supplemented, together with all of the then issued Permitted Free Writing Prospectuses, if any, will not contain an untrue statement of a material fact or omit to state a material fact necessary in.
Appears in 1 contract
Samples: Distribution Agreement (Atlantica Sustainable Infrastructure PLC)
Representations, Warranties and Agreements of the Company. Each of the The Company represents and the Operating Partnership, jointly and severally, represent and warrant warrants to, and agree agrees with, DBS, on and the Placement Agents as of (i) the date hereof, (ii) each date on which and as of the Company delivers a Transaction Notice (the “Time of Delivery”) or executes and delivers a Terms Agreement, (iii) each Time of Sale (as defined below), (iv) each Settlement Date and (v) each Bring-Down Delivery Date (as defined in Section 6(b)) (each such date listed in (i) through (v), a “Representation Closing Date”), as follows:
(a) The Company meets the requirements for use of Form S-3 under the Securities Act of 1933, as amended, and the rules and regulations thereunder (collectively, the “Act”) and has prepared and filed with the Commission a shelf registration statement, as defined in Rule 405 (file number 333-251151) on Form S-3, including a related Base Prospectus, for registration under the Act of the offering and sale of the Securities. The Company will next file with the Commission a Final Prospectus Supplement relating to the Securities in accordance with Rule 424(b). The Registration Statement, at the Execution Time, is effective and meets the requirements set forth in Rule 415(a)(1)(x). There is no order preventing or suspending the use of the Registration Statement, the Pricing Disclosure Package or the Final Prospectus or any Permitted Free Writing ProspectusSupplement, and, to the knowledge of the Company, no proceeding for that purpose or pursuant to Section 8A of the Act against the Company or related to the offering has been initiated or threatened by the Commission; Commission and no notice of objection of the Commission to the use of such Registration Statement pursuant to Rule 401(g)(2) under the Act has been received by the Company; . Any reference herein to the Registration Statement, the Base Prospectus or the Final Prospectus Supplement shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 which were filed under the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (collectively, the “Exchange Act”) on or before the Effective Date of the Registration Statement complied when it initially became effective, complies as or the issue date of the date hereof andBase Prospectus or the Final Prospectus Supplement, as then amended the case may be; and any reference herein to the terms “amend,” “amendment” or supplemented“supplement” with respect to the Registration Statement, the Base Prospectus or the Final Prospectus Supplement shall be deemed to refer to and include the filing of any document under the Exchange Act after the Effective Date of the Registration Statement or the issue date of the Base Prospectus\ or the Final Prospectus Supplement, as of the case may be, deemed to be incorporated therein by reference. Certain terms used herein are defined in Section 14 hereof.
(b) On each other Representation Date will complyEffective Date, the Registration Statement did, and when the Final Prospectus Supplement is first filed in accordance with Rule 424(b) and on the Closing Date, the Final Prospectus Supplement (and any amendment or supplement thereto) will, comply in all material respects, respects with the applicable requirements of the Act; the conditions to the use of Form S-3ASR in connection with the offering and sale of the Shares as contemplated hereby have been satisfied; the Registration Statement meets, Act and the offering Exchange Act and sale of the Shares as contemplated hereby complies with, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5))respective rules thereunder; the Prospectus complied or will comply, on each Effective Date and at the time it was or will be filed with the CommissionExecution Time, and will comply, as then amended or supplemented, as of each Representation Date (other than the date hereof), in all material respects, with the requirements of the Act; the Registration Statement did not, as of the time of its initial effectiveness, not and does will not or will not, as then amended or supplemented, as of each Representation Date, contain an 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 not misleading; as of each Representation Date (other than and on the date hereofof any filing pursuant to Rule 424(b); and on the Closing Date, the Prospectus, as then amended or supplemented, Final Prospectus Supplement (together with all of the then issued Permitted Free Writing Prospectuses, if any, any amendment or supplement thereto) will not contain an include any untrue statement of a material fact or omit to state a material fact necessary inin 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 the information contained in or omitted from the Registration Statement or the Final Prospectus Supplement (or any amendment or supplement thereto) in reliance upon and in conformity with information furnished in writing to the Company by the Placement Agents specifically for inclusion in the Registration Statement or the Final Prospectus Supplement (or any amendment or supplement thereto), it being understood and agreed that the only such information furnished by the Placement Agents consists of the information described as such in Section 7(b) hereof.
(c) As of the Initial Sale Time, the Pricing Disclosure Package, when taken together as a whole with the pricing information set forth in Exhibit B hereto, does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from the Pricing Disclosure Package based upon and in conformity with written information furnished to the Company by the Placement Agents specifically for use therein, it being understood and agreed that the only such information furnished by or on behalf of the Placement Agents consists of the information described as such in Section 7(b) hereof.
(d) Prior to the execution of this Agreement, the Company has not, directly or indirectly, offered or sold any of the Securities by means of any “prospectus” (within the meaning of the Act) or used any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Securities, in each case other than the Registration Statement and the Final Prospectus Supplement.
(e) At the time the Registration Statement was originally declared effective, and at the time the Company’s most recent Annual Report on Form 10-K was filed with the Commission, the Company met the then applicable requirements for the use of Form S-3 under the Securities Act, including General Instruction I.B.1
Appears in 1 contract
Representations, Warranties and Agreements of the Company. Each of The Company represents and warrants to and agrees with the Company Agent as follows, which representations and the Operating Partnership, jointly and severally, represent and warrant to, and agree with, DBS, on warranties shall be deemed to be made continuously from and as of (i) the date hereof, (ii) each hereof until this Offering is terminated and all then-outstanding Notes have been paid in full or such earlier date on which the Company delivers a Transaction Notice (the “Time of Delivery”) or executes and delivers a Terms Agreement, (iii) each Time of Sale (as defined below), (iv) each Settlement Date and (v) each Bring-Down Delivery Date (as defined in Section 6(b)) (each such date listed in (i) through (v), a “Representation Date”), as follows:that this Agreement has been terminated.
(a) There is no The Registration Statement, including the Prospectus subject to completion, has been prepared by the Company in conformity with the requirements of the Securities Act and the Rules and Regulations and has been filed with the Commission under the Securities Act. Copies of the Registration Statement and any amendments thereto, as filed with the Commission, have been delivered by the Company to the Agent.
(b) As of the Effective Date, and at all times subsequent thereto until the termination of the Offering, the Registration Statement and Prospectus, including each document included therein by reference, and all amendments thereof and supplements thereto, will comply with or have complied with the provisions and requirements of the Securities Act and the Rules and Regulations. Neither the Commission nor any state securities authority has issued any order preventing or suspending the use of any Preliminary Prospectus or requiring the recirculation of a Preliminary Prospectus, or issued a stop order with respect to the Offering (if the Registration StatementStatement has been declared effective), the Prospectus or any Permitted Free Writing Prospectus, andinstituted or, to the knowledge of Company's knowledge, threatened the Companyinstitution of, no proceeding proceedings for that purpose or pursuant to Section 8A of the Act against the Company or related to the offering has been initiated or threatened by the Commission; no notice of objection of the Commission to the use any of such Registration Statement pursuant to Rule 401(g)(2) under the Act has been received by the Company; purposes. When the Registration Statement complied shall become effective and when it initially became any post-effective amendment thereto shall become effective, complies as of the date hereof and, as then amended or supplemented, as of each other Representation Date will comply, in all material respects, with the requirements of the Act; the conditions to the use of Form S-3ASR in connection with the offering and sale of the Shares as contemplated hereby have been satisfied; the Registration Statement meets, and the offering and sale of the Shares as contemplated hereby complies with, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5)); the Prospectus complied or will comply, at the time it was or will be filed with the Commission, and will comply, as then amended or supplemented, as of each Representation Date (other than the date hereof), in all material respects, with the requirements of the Act; the Registration Statement did not, as of the time of its initial effectiveness, and does not or will not, as then amended or supplemented, as of each Representation Date, did not contain an any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances in which they were made, not misleading; as . When the Registration Statement is or was declared effective by the Commission and at all times subsequent thereto until the termination of each Representation Date (other than the date hereof)Offering, the Prospectus, Prospectus (as then amended or supplemented, together if the Company shall have filed with all of the then issued Permitted Free Writing Prospectuses, if any, Commission any amendment thereof or supplement thereto) will not or did not contain an 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, in light of the circumstances in which they were made, not misleading. None of the representations and warranties in this Section shall apply to any statements in, or omissions from the Agent Disclosure Statements (as defined in Section 5.01(f) below) in the Registration Statement or the Prospectus, or any amendment thereof or supplement thereto.
(c) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, with full power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement and Prospectus. The Company is duly qualified to do business and is in good standing in each jurisdiction in which the ownership or lease of its properties or the conduct of its business requires such qualification and in which the failure to be qualified or in good standing would have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of the Company and, to the best of the Company' s knowledge, no proceeding has been instituted in any such jurisdiction revoking, limiting or curtailing, or seeking to revoke, limit or curtail, such power and authority or qualification.
(d) The Company has operated and is operating in material compliance with all authorizations, licenses, certificates, consents, permits, approvals and orders of and from all state, federal and other governmental regulatory officials and bodies necessary to own its properties and to conduct its business as described in the Registration Statement and Prospectus, all of which are, to the best of the Company's knowledge, valid and in full force and effect. The Company is conducting its business in substantial compliance with all applicable laws, rules and regulations of the jurisdictions in which it is conducting business, and the Company is not in material violation of any applicable law, order, rule, regulation, writ, injunction, judgment or decree of any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its properties.
(e) The Company is not in violation of its certificate of incorporation or bylaws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any Material Agreement to which it is a party or by which it or its properties are bound.
(f) The Company has full requisite power and authority to enter into this Agreement and perform the transactions contemplated hereby. This Agreement has been duly authorized, executed and delivered by the Company and is a valid and binding agreement on the part of the Company, enforceable against the Company in accordance with its terms. The performance of this Agreement and the consummation of the transactions herein contemplated will not result in a breach or violation of any of the terms and provisions of, or constitute a default under:
(i) any Material Agreement to which the Company is a party or by which the Company or its properties may be bound;
(ii) the certificate of incorporation or bylaws of the Company, or
(iii) any applicable law, order, rule, regulation, writ, injunction, judgment or decree of any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its properties.
(g) No consent, approval, authorization or order of or qualification with any court, governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its properties is required for the execution and delivery of this Agreement and the consummation by the Company of the transactions herein contemplated, except such as may be required under the Securities Act, the Exchange Act, or under state or other securities or blue sky laws, all of which requirements have been satisfied.
(h) Except as is otherwise expressly described in or incorporated by reference into the Registration Statement or Prospectus, there is neither pending nor, to the best of the Company's knowledge, threatened, any action, suit, claim or proceeding against the Company or any of its officers or any of its properties, assets or rights before any court, government or governmental agency or body, domestic or foreign, having jurisdiction over the Company or over its officers or properties or otherwise which if successful would be likely to (A) result in any material adverse change in the condition (financial or otherwise), earnings, operations or business of the Company or might materially and adversely affect its properties, assets or rights, or (B) prevent consummation of the transactions contemplated hereby.
(i) All outstanding shares of capital stock of the Company are duly authorized and validly issued, fully paid and non-assessable, have been issued in compliance with all federal and state securities laws, were not issued in violation of or subject to any preemptive rights or other rights to subscribe for or purchase securities, and the authorized and outstanding capital stock of the Company conforms in all material respects with the statements relating thereto contained in the Registration Statement and the Prospectus. The Notes to be sold hereunder by the Company have been duly authorized for issuance and sale pursuant to the Indenture and this Agreement and, when issued and delivered against payment therefor in accordance with the terms of the Indenture and this Agreement, will be duly and validly issued and fully paid and non-assessable and will be sold free and clear of any pledge, lien, security interest, encumbrance, claim or equitable interest; and no preemptive right, co-sale right, registration right, right of first refusal or other similar right of stockholders exists with respect to any of the Notes to be sold hereunder by the Company or the issuance and sale
Appears in 1 contract
Samples: Distribution and Management Agreement (Onyx Acceptance Corp)
Representations, Warranties and Agreements of the Company. Each of the The Company represents and the Operating Partnership, jointly and severally, represent and warrant warrants to, and agree agrees with, DBSeach Agent, on and as of (i) the date hereof, (ii) each date on which the Company delivers receives a Transaction Notice Acceptance (the “Time of DeliveryAcceptance”), (iii) or each date on which the Company executes and delivers a Terms Agreement, (iiiiv) each Time of Sale (as defined belowin Section 3(a)), (ivv) each Settlement Date and (vvi) each Bring-Down Delivery Date (as defined in Section 6(b)) (each such date listed in (i) through (vvi), a “Representation Date”), as follows:
(a) There The Registration Statement is an “automatic shelf registration statement” as defined under Rule 405 of the Act that has been filed with the Commission not earlier than three years prior to the date hereof; there is no order preventing or suspending the use of the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus, and, to the knowledge of the Company, no proceeding for that purpose or pursuant to Section 8A of the Act against the Company or related to the offering has been initiated or threatened by the Commission; no notice of objection of the Commission to the use of such Registration Statement pursuant to Rule 401(g)(2) under the Act has been received by the Company; the Registration Statement complied when it initially became effective, complies as of the date hereof and, as then amended or supplemented, as of each other Representation Date will comply, in all material respects, with the requirements of the Act; the conditions to the use of Form S-3ASR S-3 in connection with the offering and sale of the Shares as contemplated hereby have been satisfied; the Registration Statement meets, and the offering and sale of the Shares as contemplated hereby complies with, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5)); the Prospectus complied or will comply, at the time it was or will be filed with the Commission, and will comply, as then amended or supplemented, as of each Representation Date (other than the date hereof)Date, in all material respects, with the requirements of the Act; the Registration Statement did not, as of the time of its initial effectiveness, and does not or will not, as then amended or supplemented, as of each Representation Date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; as of each Representation Date (other than the date hereof)Date, the Prospectus, as then amended or supplemented, together with all of the then issued Permitted Free Writing Prospectuses, if any, will not contain an untrue statement of a material fact or omit to state a material fact necessary inin 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 representation or
Appears in 1 contract
Representations, Warranties and Agreements of the Company. Each of the The Company represents, warrants to and the Operating Partnership, jointly and severally, represent and warrant to, and agree agrees with, DBS, on and as of (i) the date hereof, (ii) each date on which the Company delivers a Transaction Notice (the “Time of Delivery”) or executes and delivers a Terms Agreement, (iii) each Time of Sale (as defined below), (iv) each Settlement Date and (v) each Bring-Down Delivery Date (as defined in Section 6(b)) (each such date listed in (i) through (v), a “Representation Date”), as followsUnderwriters that:
(a) There is no The Registration Statement has been declared effective by the Commission under the Securities Act. The Company has complied to the Commission's satisfaction with all requests of the Commission for additional or supplemental information. No stop order preventing or suspending the use effectiveness of the Registration Statement, the Prospectus Statement is in effect and no proceedings for such purpose have been instituted or any Permitted Free Writing Prospectus, andare pending or, to the best knowledge of the Company, no proceeding for that purpose or pursuant to Section 8A of the Act against the Company or related to the offering has been initiated are contemplated or threatened by the Commission; no notice . Each Preliminary Prospectus and the Prospectus when filed complied in all material respects with the Securities Act and the Trust Indenture Act of objection 1939, as amended (the "TRUST INDENTURE ACT"), and, if filed by electronic transmission pursuant to EDGAR (except as may be permitted by Regulation S-T under the Secxxxxxes Act), was identical to the copy thereof delivered to the Underwriters for use in connection with the offer and sale of the Commission to the use of such Designated Securities. The Registration Statement pursuant to Rule 401(g)(2) under the Act has been received by the Company; the Registration Statement complied when it initially became effectivecomplies, complies as of the date hereof and, as then amended or supplemented, as of each other Representation Date and any post-effective amendment thereto will comply, in all material respects, respects with the requirements of Securities Act and the Trust Indenture Act; the conditions to the use of Form S-3ASR in connection with the offering , and sale of the Shares as contemplated hereby have been satisfied; the Registration Statement meetsas amended and supplemented by the Prospectus, and the offering and sale of the Shares as contemplated hereby complies with, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5)); the Prospectus complied or will comply, at the time it was or will be filed with the Commission, any post-effective amendment thereto do not and will comply, as then amended or supplemented, as of each Representation Date (other than the date hereof), in all material respects, with the requirements of the Act; the Registration Statement did not, as of the time of its initial effectivenessapplicable effective date as to the Registration Statement, and does not or will not, as then amended or supplemented, as of each Representation Dateany post-effective amendment thereto, contain an any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; . The Prospectus, as amended or supplemented, as of each Representation Date (other than the date hereof)its date, and any further supplements to the Prospectus, as then amended or supplemented, together with all of the then issued Permitted Free Writing Prospectusesapplicable filing date as to any such supplement, if any, do not and will not contain an any untrue statement of a material fact or omit to state a material fact necessary inin order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The representations and warranties set forth in the two immediately preceding sentences do not apply to statements in or omissions from the Registration Statement, any post-effective amendment thereto or the Prospectus or any supplement thereto made in reliance upon and in conformity with written information furnished to the Company in writing by or on behalf of the Representatives specifically for inclusion therein, which information consists solely of the information set forth in the letter referred to in Section 6(e), or to information which shall constitute the Statement of Eligibility under the Trust Indenture Act (Form T-1) of the Trustee under the Indenture. There are no contracts or other documents required to be described in the Prospectus or to be filed as exhibits to the Registration Statement which have not been described or filed as required.
(b) The Company has delivered to each Representative one photocopy of a complete manually signed copy of the Registration Statement and of each consent and certificate of experts filed as a part thereof, and conformed copies of the Registration Statement (without exhibits) and Preliminary Prospectuses and the Prospectus, as amended or supplemented, in such quantities and at such places as the Representatives have reasonably requested for each of the Underwriters.
(c) The Company has not distributed and will not distribute, prior to the later of the Optional Delivery Date (as defined below) and the completion of the Underwriters' distribution of the Units, any offering material in connection with the offering and sale of the Units other than a Preliminary Prospectus, the Prospectus as the Registration Statement.
(d) Each of the Company and its Significant Subsidiaries has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation and has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus. The Company does not own or control, directly or indirectly, any corporation, association or other entity other than the subsidiaries listed in Exhibit 21 of the Company's Annual Report on Form 10-K for the fiscal year ended January 29, 2004, each such entity referred to as a "Subsidiary". Except for American Stores Company and JS USA Holdings Inc., none of the Company's subsidiaries is a "significant subsidiary" of the Company as defined in Rule 1-02 of Regulation S-X under the Securities Act.
(e) The Company has all requisite corporate power and authority to execute and deliver this Agreement and perform its obligations hereunder; this Agreement has been duly authorized, executed and delivered by the Company.
(f) The Company has all requisite corporate power and authority to execute and deliver each of the Unit Agreements and perform its obligations thereunder; each of the Unit Agreements has been duly authorized and, on the First Delivery Date, will have been duly executed and delivered by the Company, and, assuming due authorization, execution and delivery thereof by the other parties thereto, will constitute a legally valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, subject to general principles of equity and to limitations on availability of equitable relief, including specific performance (whether considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing; provided, however, that upon the occurrence of a Termination Event (as defined in the Purchase Contract), Title 11 of the United States Code (the "BANKRUPTCY CODE") should not substantively limit the provisions of the Purchase Agreement or the Pledge Agreement that require termination of the Purchase Contracts and release of the Collateral Agent's security interest in (1) the Senior Notes, (2) the Treasury Securities (as defined in the Purchase Contract) or (3) the Applicable Ownership Interest in the Treasury Portfolio (as defined in the Purchase Contract), as applicable, and the transfer of such securities to the Purchase Contract Agent, for the benefit of the Holders of the Units (as defined in the Prospectus); provided further, that the Company makes no representations as to whether the procedural restrictions respecting relief from the automatic stay under Section 362 of the Bankruptcy Code may delay the timing of the exercise of the rights and remedies contained in Section 5.06 of the Purchase Agreement and Section 5.04 of the Pledge Agreement. Each of the Unit Agreements conforms in all material respects to the description thereof contained in the Prospectus.
(g) The Company has all requisite corporate power and authority to execute and deliver the Remarketing Agreement and perform its obligations thereunder; the Remarketing Agreement has been duly authorized and, on the First Delivery Date, will have been duly executed and delivered by the Company, and, assuming due authorization, execution and delivery thereof by the other parties thereto, will constitute a legally valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, subject to general principles of equity and to limitations on availability of equitable relief, including specific performance (whether considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing, and except as any rights to indemnification, contribution or exculpation thereunder may be limited by principles of public policy, statutory duties and applicable securities laws. The Remarketing Agreement conforms in all material respects to the description thereof contained in the Prospectus.
(h) The Company has all requisite corporate power and authority to execute and deliver the Supplemental Indenture and perform its obligations thereunder; the Supplemental Indenture has been duly authorized and, on the First Delivery Date, will have been duly executed and delivered by the Company and qualified under the Trust Indenture Act, and, assuming due authorization, execution and delivery of the Supplemental Indenture by the Trustee, the Supplemental Indenture will constitute a legally valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, subject to general principles of equity and to limitations on availability of equitable relief, including specific performance (whether considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing. The Supplemental Indenture conforms in all material respects to the description thereof contained in the Prospectus.
(i) The Senior Notes have been duly authorized and, on the First Delivery Date, will have been duly executed by the Company, and, when the Senior Notes are authenticated by the Trustee in accordance with the Indenture and delivered against payment therefor in accordance with this Agreement, will constitute legally valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, subject to general principles of equity and to limitations on availability of equitable relief, including specific performance (whether considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing. The Senior Notes will conform in all material respects to the description thereof contained in the Prospectus.
(j) The Designated Securities have been duly authorized and, on the First Delivery Date, will have been duly executed by the Company, and, when the Designated Securities are authenticated by the Purchase Contract Agent in accordance with the Purchase Agreement and delivered against payment therefor in accordance with this Agreement, will constitute legally valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, subject to general principles of equity and to limitations on availability of equitable relief, including specific performance (whether considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing; provided, however, that upon the occurrence of a Termination Event (as defined in the Purchase Contract), the Bankruptcy Code should not substantively limit the provisions of the Purchase Agreement or the Pledge Agreement that require termination of the Purchase Contracts and release of the Collateral Agent's security interest in (1) the Senior Notes, (2) the Treasury Securities (as defined in the Purchase Contract) or (3) the Applicable Ownership Interest in the Treasury Portfolio (as defined in the Purchase Contract), as applicable, and the transfer of such securities to the Purchase Contract Agent, for the benefit of the Holders of the Units (as defined in the Prospectus); provided further, that the Company makes no representations as to whether the procedural restrictions respecting relief from the automatic stay under Section 362 of the Bankruptcy Code may delay the timing of the exercise of the rights and remedies contained in Section 5.06 of the Purchase Agreement and Section 5.04
Appears in 1 contract
Representations, Warranties and Agreements of the Company. Each of the The Company represents and the Operating Partnership, jointly and severally, represent and warrant warrants to, and agree with, DBS, on and agrees with the Underwriter that as of (i) the date hereof, (ii) the Effective Date, and each date on which the Company delivers a Transaction Notice (the “Time of Delivery”) or executes and delivers a Terms Agreement, (iii) each Time of Sale (as defined below), (iv) each Settlement Date and (v) each Bring-Down Delivery Closing Date (all as defined in Section 6(b)hereinafter defined) (each such date listed in (i) through (v), a “Representation Date”), as followsthat:
(a) There is no order preventing or suspending the use of the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus, and, A registration statement (File No. 333-_________) on Form S-1 relating to the knowledge Offering, including a form of the Companyprospectus subject to completion, no proceeding for that purpose or pursuant copies of which have heretofore been delivered to Section 8A of the Act against the Company or related to the offering you, has been initiated or threatened by the Commission; no notice of objection of the Commission to the use of such Registration Statement pursuant to Rule 401(g)(2) under the Act has been received by the Company; the Registration Statement complied when it initially became effective, complies as of the date hereof and, as then amended or supplemented, as of each other Representation Date will comply, prepared in conformity in all material respects, respects with the requirements of the Act and the rules and regulations (the "Rules and Regulations") of the Commission promulgated thereunder, and has been filed with the Commission under the Act and one or more amendments to such registration statement may have been so filed. After the execution of this Agreement, the Company will file with the Commission either (i) if such registration statement, as it may have been amended, has been declared by the Commission to be effective under the Act, a prospectus in the form most recently included in an amendment to such registration statement (or, if no such amendment shall have been filed in such registration statement), with such changes or insertions as are required by Rule 430A under the Act or permitted by Rule 424(b) under the Act and as have been provided to and approved by you prior to the execution of this Agreement, or (ii) if such registration statement, as it may have been amended, has not been declared by the Commission to be effective under the Act, an amendment to such registration statement, including a form of prospectus, a copy of which amendment has been furnished to and approved by you prior to the execution of this Agreement. As used in this Agreement, the term "Registration Statement" means such registration statement, as amended at the time when it was or is declared effective under the Act, including all financial schedules and exhibits thereto and including any information omitted therefrom pursuant to Rule 430A under the Act and included in the Prospectus (as hereinafter defined); the conditions term "Preliminary Prospectus" means each prospectus subject to completion filed with such registration statement or any amendment thereto (including the use of Form S-3ASR prospectus subject to completion, if any, included in connection with the offering and sale of the Shares as contemplated hereby have been satisfied; the Registration Statement meets, and the offering and sale of the Shares as contemplated hereby complies with, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5)); the Prospectus complied or will comply, any amendment thereto at the time it was or will be is declared effective) under the Act; and the term "Prospectus" means the prospectus first filed with the CommissionCommission pursuant to Rule 424(b) under the Act, or if no prospectus is required to be filed pursuant to Rule 424(b), such term means the prospectus included in the Registration Statement; except that upon filing of an amendment to the registration statement or prospectus or a supplement to the prospectus after the Effective Date and prior to any Closing Date, the term "Registration Statement" shall include such registration statement as so amended, and will comply, the term "Prospectus" shall include the prospectus as then so amended or supplemented, as of each Representation Date (other than the date hereof), in all material respects, with the requirements of the Act; the Registration Statement did not, as of the time of its initial effectiveness, and does not or will not, as then amended or supplemented, as of each Representation Date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; as of each Representation Date (other than the date hereof), the Prospectus, as then amended or supplemented, together with all of the then issued Permitted Free Writing Prospectuses, if any, will not contain an untrue statement of a material fact or omit to state a material fact necessary in.
Appears in 1 contract
Representations, Warranties and Agreements of the Company. Each The Company represents, warrants and covenants to the Purchaser, as of the Company and the Operating Partnership, jointly and severally, represent and warrant to, and agree with, DBS, on and as date of (i) the date hereof, (ii) each date on which the Company delivers a Transaction Notice (the “Time of Delivery”) or executes and delivers a Terms this Agreement, (iii) each Time of Sale (as defined below), (iv) each Settlement Date and (v) each Bring-Down Delivery Date (as defined in Section 6(b)) (each such date listed in (i) through (v), a “Representation Date”), as follows:
(a) There is no order preventing or suspending The Notes are eligible for resale pursuant to Rule 144A under the use Securities Act and such Notes at the time of initial issuance will not be of the Registration Statementsame class (within the meaning of Rule 144A under the Securities Act) as securities of the Company that are listed on a national securities exchange registered under Section 6 of the Exchange Act or that are quoted in a United States automated inter-dealer quotation system.
(b) Assuming the truth and accuracy of the Purchaser’s representations and warranties in Section 4 of this Agreement, the Prospectus purchase of the Notes pursuant hereto is exempt from the registration requirements of the Securities Act.
(c) Assuming the truth and accuracy of the Purchaser’s representations and warranties in Section 4(f) of this Agreement, no form of general solicitation or general advertising within the meaning of Regulation D (including, but not limited to, advertisements, articles, notices or other communications published in any newspaper, magazine or similar medium or broadcast over television or radio, or any Permitted Free Writing Prospectus, and, to the knowledge of seminar or meeting whose attendees have been invited by any general solicitation or general advertising) was used by the Company, any of its Affiliates or any of their respective representatives in connection with the offer and sale of the Notes to the Purchaser.
(d) Neither the Company nor any other person acting on behalf of the Company has sold or issued any securities that would be integrated with the offering of the Notes contemplated by this Agreement pursuant to the Securities Act, the rules and regulations thereunder or the interpretations thereof by the Commission. The Company will take reasonable precautions designed to insure that any offer or sale, direct or indirect, in the United States or to any U.S. person (as defined in Rule 902 under the Securities Act), of any Notes or any substantially similar security issued by the Company, within six months subsequent to the date hereof, is made under restrictions and other circumstances reasonably designed not to affect the status of the offer and sale of the Notes pursuant to this Agreement as transactions exempt from the registration provisions of the Securities Act.
(e) No order or decree of any Governmental Authority asserting that the transactions contemplated by this Agreement are subject to the registration requirements of the Securities Act has been issued, and no proceeding for that purpose has commenced or pursuant is pending before any Governmental Authority or, to Section 8A the Knowledge of the Act Company is contemplated.
(f) The Company is a corporation duly incorporated, validly existing and in good standing under the laws of The Commonwealth of Massachusetts. The Company has all corporate powers and all licenses, authorizations, consents and approvals of all Governmental Authorities required to carry on its business as now conducted. The Company is duly qualified to do business as a foreign corporation and is in good standing in every jurisdiction in which the failure to do so would reasonably be expected to result, individually or in the aggregate, in an Adverse Effect.
(g) The Company has all necessary corporate power and authority to execute, issue, sell and perform its obligations under the Notes. The Notes have been duly authorized by the Company and, when duly executed by the Company in accordance with the terms of the Indenture, assuming due authentication of the Notes by the Trustee, upon delivery to the Purchaser against payment therefor in accordance with the terms of this Agreement 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, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium or related to the offering has been initiated similar laws affecting creditors’ rights generally or threatened by the Commission; no notice of objection general equitable principles. No qualification of the Commission to the use of such Registration Statement pursuant to Rule 401(g)(2) Indenture under the Trust Indenture Act has been received by the Company; the Registration Statement complied when it initially became effective, complies as of the date hereof and, as then amended or supplemented, as of each other Representation Date will comply, in all material respects, with the requirements of the Act; the conditions to the use of Form S-3ASR in connection with the offering and sale of the Shares as contemplated hereby have been satisfied; the Registration Statement meets, and the offering and sale of the Shares as contemplated hereby complies with, the requirements of Rule 415 under the Act 1939 (including, without limitation, Rule 415(a)(5)); the Prospectus complied or will comply, at the time it was or will be filed with the Commission, and will comply, as then amended or supplemented, as of each Representation Date (other than the date hereof), in all material respects, with the requirements of the Act; the Registration Statement did not, as of the time of its initial effectiveness, and does not or will not, as then amended or supplemented, as of each Representation Date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; as of each Representation Date (other than the date hereof), the Prospectus, as then amended or supplemented, together with all of the then issued Permitted Free Writing Prospectuses, if any, will not contain an untrue statement of a material fact or omit to state a material fact necessary inthe
Appears in 1 contract
Samples: Note Purchase Agreement (Vertex Pharmaceuticals Inc / Ma)
Representations, Warranties and Agreements of the Company. Each of the The Company represents and the Operating Partnership, jointly and severally, represent and warrant towarrants to you, and agree withagrees with you, DBS, on and as of (i) the date hereof, (ii) each date on which the Company delivers a Transaction Notice (the “Time of Delivery”) or executes and delivers a Terms Agreement, (iii) each Time of Sale (as defined below), (iv) each Settlement Date and (v) each Bring-Down Delivery Date (as defined in Section 6(b)) (each such date listed in (i) through (v), a “Representation Date”), as followsthat:
(a) There is no The Registration Statement, including each Preliminary Prospectus and the Prospectus, has been prepared by the Company in conformity with the requirements of the Securities Act and the Rules and Regulations thereunder and has been filed with the Commission; such amendments to such Registration Statement, and each Preliminary Prospectus and Prospectus and such abbreviated registration statements pursuant to Rule 462(b) of the Rules and Regulations as may have been required prior to the date hereof have been similarly prepared and filed with the Commission; and the Company will file such additional amendments to such Registration Statement, Preliminary Prospectuses and Prospectus and such abbreviated registration statements as may hereafter be required. Copies of such Registration Statement, Preliminary Prospectuses and Prospectus, including all amendments thereto, and of any abbreviated registration statement pursuant to Rule 462(b) of the Rules and Regulations have been or, if filed after the Commencement Date, will be, delivered to you and your counsel;
(b) The Registration Statement, including a Preliminary Prospectus, has been filed with the Commission and will become effective not later than the time of execution of this Agreement; and the Commission has not issued or to the Company’s knowledge threatened to issue any order refusing or suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus or Prospectus or instituted or to the Company’s knowledge threatened to institute proceedings for that purpose. The Registration Statement, each Preliminary Prospectus and the Prospectus or any Permitted Free Writing Prospectus, and, to the knowledge of the Company, no proceeding for that purpose or pursuant to Section 8A of the Act against the Company or related to the offering has been initiated or threatened by the Commission; no notice of objection of the Commission to the use of such Registration Statement pursuant to Rule 401(g)(2) under the Act has been received by the Company; the Registration Statement complied when it initially became effective, complies as of the date hereof comply and, as then amended or supplemented, as of each other Representation Date if applicable, will comply, comply in all material respectsrespects with the Securities Act, with the Exchange Act and TIA, and the applicable Rules and Regulations of the Commission thereunder;
(c) At the respective times the Registration Statement (or any post effective amendment thereto, including a registration statement (if any) filed pursuant to Rule 462(b) of the Rules and Regulations increasing the size of the offering registered under the Act) is or was declared effective by the Commission, and at the Closing Date, (i) the Registration Statement (as so amended and/or supplemented) conformed or will conform in all material respects to the requirements of the Act; Act and the conditions to the use of Form S-3ASR in connection with the offering Rules and sale of the Shares as contemplated hereby have been satisfied; Regulations, and (ii) the Registration Statement meets, and the offering and sale of the Shares (as contemplated hereby complies with, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5)); the Prospectus complied or will comply, at the time it was or will be filed with the Commission, and will comply, as then so amended or and/or supplemented, as of each Representation Date (other than the date hereof), in all material respects, with the requirements of the Act; the Registration Statement ) did not, as of the time of its initial effectiveness, and does not or will not, as then amended or supplemented, as of each Representation Date, contain not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; as except that the foregoing shall not apply to statements in or omissions from any such document in reliance upon, and in conformity with, written information furnished to the Company by you, specifically for use in the preparation thereof;
(d) None of each Representation Date (other than the date hereof), any Preliminary Prospectus or the Prospectus, as then amended or supplementedany amendments or supplements thereto, together with all of at the then issued Permitted Free Writing Prospectusestime they were or are issued, if any, contained or will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary into make the statements therein, in light of the circumstances in which they were or are made, not misleading; except that the foregoing shall not apply to statements in or omissions from any such document in reliance upon, and in conformity with, written information furnished to the Company by you, specifically for use in the preparation thereof. Each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto conformed or will conform in all material respects to the requirements of the Securities Act, the Exchange Act and the Rules and Regulations, and each Preliminary Prospectus and the Prospectus delivered to you for use in connection with the New Money Offering was or will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T;
(e) As of the Applicable Time, neither (A) the Issuer-Represented General Free Writing Prospectus(es) issued at or prior to the Applicable Time, the Statutory Prospectus and the information included on Schedule I hereto, and the Exchange Offer Materials all considered together (collectively, the “Pricing Disclosure Package”), nor (B) any individual Issuer-Represented Limited-Use Free Writing Prospectus, when considered together with the Pricing Disclosure Package, included any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from any Prospectus included in the Registration Statement or any Issuer-Represented Free Writing Prospectus based upon and in conformity with written information furnished to the Company by you specifically for use therein. In the event this Agreement is executed before the Applicable Time, the parties agree that Schedule I hereto shall be completed subsequent to the execution of this Agreement and no later than the Applicable Time. As used in this paragraph and elsewhere in this Agreement:
Appears in 1 contract
Samples: Placement Agent Agreement (Oscient Pharmaceuticals Corp)
Representations, Warranties and Agreements of the Company. Each of the The Company represents and the Operating Partnership, jointly and severally, represent and warrant warrants to, and agree agrees with, DBSJPMS, on and as of (i) the date hereof, (ii) each date on which the Company delivers accepts a Transaction Notice (the a “Time of DeliveryAcceptance”) or the Company executes and delivers a Terms Agreement, (iii) each Time of Sale (as defined below), (iv) each Settlement Date and (v) each Bring-Down Delivery Date (as defined in Section 6(b)) (each such date listed in (i) through (v), a “Representation Date”), as follows:
(a) There is no order preventing or suspending the use of the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus, and, to the knowledge of the Company, no proceeding for that purpose or pursuant to Section 8A of the Act against the Company or related to the offering of the Shares has been initiated or threatened by the Commission; no notice of objection of the Commission to the use of such Registration Statement pursuant to Rule 401(g)(2) under the Act has been received by the Company; the Registration Statement complied when it initially became effective, complies as of the date hereof and, as then amended or supplemented, as of each other Representation Date (other than the date hereof) will comply, in all material respects, with the requirements of the Act; the conditions to the use of Form S-3ASR S-3 in connection with the offering and sale of the Shares as contemplated hereby have been satisfied; the Registration Statement meets, and the offering and sale of the Shares as contemplated hereby complies with, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5)); the Prospectus complied or will comply, at the time it was or will be filed with the Commission, and will comply, as then amended or supplemented, as of each Representation Date (other than the date hereof), in all material respects, with the requirements of the Act; the Registration Statement did not, as of the time of its initial effectiveness, and does not or will not, as then amended or supplemented, as of each Representation Date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; as of each Representation Date (other than the date hereof), the Prospectus, as then amended or supplemented, together with all of the then issued Permitted Free Writing Prospectuses, if any, will not contain an untrue statement of a material fact or omit to state a material fact necessary inin 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 representation or warranty with respect to any statement or omission in the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus in reliance upon and in conformity with information furnished in writing by or on behalf of JPMS expressly for use in the Registration Statement, the Prospectus or such Permitted Free Writing Prospectus (it being understood that such information consists solely of the information specified in Section 9(b)). As used herein, “Time of Sale” means (i) with respect to each offering of Shares pursuant to this Agreement, the time of JPMS’s initial entry into contracts with investors for the sale of such Shares and (ii) with respect to each offering of Shares pursuant to any relevant Terms Agreement, the time of sale of such Shares.
Appears in 1 contract
Samples: Distribution Agreement (Cb Richard Ellis Group Inc)
Representations, Warranties and Agreements of the Company. Each of the The Company represents, warrants and the Operating Partnership, jointly and severally, represent and warrant to, and agree with, DBS, on and as of (i) the date hereof, (ii) each date on which the Company delivers a Transaction Notice (the “Time of Delivery”) or executes and delivers a Terms Agreement, (iii) each Time of Sale (as defined below), (iv) each Settlement Date and (v) each Bring-Down Delivery Date (as defined in Section 6(b)) (each such date listed in (i) through (v), a “Representation Date”), as followsagrees that:
(a) There is no order preventing A registration statement on Form F-1 (Registration No. 333-91263), and one or suspending the use of the Registration Statementmore amendments thereto, the Prospectus or any Permitted Free Writing Prospectus, and, with respect to the knowledge of the Company, no proceeding for that purpose or pursuant to Section 8A of the Act against Shares have (i) been prepared by the Company or related to the offering has been initiated or threatened by the Commission; no notice of objection of the Commission to the use of such Registration Statement pursuant to Rule 401(g)(2) under the Act has been received by the Company; the Registration Statement complied when it initially became effective, complies as of the date hereof and, as then amended or supplemented, as of each other Representation Date will comply, in all material respects, conformity with the requirements of the U.S. Securities Act of 1933, as amended (the "Securities Act; the conditions to the use of Form S-3ASR in connection with the offering and sale of the Shares as contemplated hereby have been satisfied; the Registration Statement meets"), and the offering rules and sale regulations (the "Rules and Regulations") of the U.S. Securities and Exchange Commission (the "Commission") thereunder, (ii) been filed with the Commission under the Securities Act and (iii) become effective under the Securities Act; and a second registration statement on Form F-1 with respect to the Shares as contemplated hereby complies with, (i) may also be prepared by the Company in conformity with the requirements of Rule 415 the Securities Act and the Rules and Regulations and (ii) if to be so prepared, will be filed with the Commission under the Securities Act pursuant to Rule 462(b) of the Rules and Regulations on the date hereof. Copies of the first such registration statement and the amendments to such registration statement, together with the form of any such second registration statement, have been delivered by the Company to the Representatives. As used in this Agreement, "Effective Time" means (includingi) with respect to the first such registration statement, without limitation, Rule 415(a)(5)); the Prospectus complied or will comply, at date and the time it as of which such registration statement, or the most recent post-effective amendment thereto, if any, was or will be declared effective by the Commission and (ii) with respect to any second registration statement, the date and time as of which such second registration statement is filed with the Commission, and will comply"Effective Times" is the collective reference to both Effective Times; "Effective Date" means (i) with respect to the first such registration statement, the date of the Effective Time of such registration statement and (ii) with respect to any second registration statement, the date of the Effective Time of such second registration statement, and "Effective Dates" is the collective reference to both Effective Dates; "Preliminary Prospectus" means each prospectus included in any such registration statement, or amendments thereof, before it became effective under the Securities Act and any prospectus filed with the Commission by the Company with the consent of the Representatives pursuant to Rule 424(a) of the Rules and Regulations; "Primary Registration Statement" means the first registration statement referred to in this Section 1(a), as then amended or supplemented, as of each Representation Date (other than at its Effective Time; "Rule 462(b) Registration Statement" means the date hereof), in all material respects, with the requirements of the Act; the Registration Statement did not, as of the time of its initial effectiveness, and does not or will not, as then amended or supplemented, as of each Representation Date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; as of each Representation Date (other than the date hereof), the Prospectus, as then amended or supplemented, together with all of the then issued Permitted Free Writing Prospectusessecond registration statement, if any, will not contain an untrue statement of a material fact or omit referred to state a material fact necessary inin this Section 1(a), as filed with the Commission; and "Registration Statements" means both the Primary Registration Statement and any Rule 462(b) Registration Statement, including in each case all information contained in the final prospectus filed with the Commission
Appears in 1 contract
Representations, Warranties and Agreements of the Company. Each of the (a) The Company represents and the Operating Partnership, jointly warrants to and severally, represent and warrant to, and agree with, DBS, on and as of agrees with each Underwriter that:
(i) A registration statement on Form S-1 (File No. 333-________) with respect to the Shares, including a preliminary form of prospectus, copies of which have heretofore been delivered to you, has been prepared by the Company in conformity with the requirements of the Securities Act of 1933, as amended (the "Act"), and the rules and regulations (the "Rules and Regulations") of the Securities and Exchange Commission (the "Commission") under the Act, and has been filed with the Commission under the Act; such amendment or amendments to such registration statement, copies of which have heretofore been delivered to you, as may have been made prior to the date hereofof this Agreement have been so prepared and filed; and the Company has so prepared and proposes so to file in a timely manner after the effective date of such registration statement the final form of prospectus. Such registration statement (including all exhibits thereto), as finally amended and revised as of the time the Underwriters first offer the Shares for sale to the public together with information, if any, which is permitted to be, and is, subsequently filed pursuant to Rule 430A of the Rules and Regulations, is herein referred to as the "Registration Statement". Such prospectus in the form filed pursuant to Rule 424(b) of the Rules and Regulations, or, if no final prospectus is filed with the Commission pursuant to Rule 424(b), in such form as such final prospectus is included in the Registration Statement, is herein referred to as the "Prospectus". Each preliminary form of prospectus is herein referred to as a "Preliminary Prospectus".
(ii) each date on which the Company delivers a Transaction Notice (the “Time of Delivery”) or executes and delivers a Terms Agreement, (iii) each Time of Sale (as defined below), (iv) each Settlement Date and (v) each Bring-Down Delivery Date (as defined in Section 6(b)) (each such date listed in (i) through (v), a “Representation Date”), as follows:
(a) There is no The Commission has not issued any order preventing or suspending the use of the Registration Statement, the Prospectus or any Permitted Free Writing Preliminary Prospectus, and, to the knowledge of the Company, no proceeding for that purpose or pursuant to Section 8A of the Act against the Company or related to the offering has been initiated or threatened by the Commission; no notice of objection of the Commission to the use of such Registration Statement pursuant to Rule 401(g)(2) under the Act has been received by the Company; the Registration Statement complied when it initially became effective, complies as of the date hereof and, as then amended or supplemented, as of each other Representation Date will comply, in all material respects, with the requirements of the Act; the conditions to the use of Form S-3ASR in connection with the offering and sale of the Shares as contemplated hereby have been satisfied; the Registration Statement meets, and the offering and sale of the Shares as contemplated hereby complies with, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5)); the Prospectus complied or will comply, at the time it was or will be filed with the Commission, and will comply, as then amended or supplemented, as of each Representation Date (other than the date hereof), in all material respects, with the requirements of the Act; the Registration Statement did not, as of . At the time of its initial effectiveness, and does not or will not, as then amended or supplemented, as filing of each Representation DatePreliminary Prospectus, contain an such prospectus did not include any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading; . When the Registration Statement becomes effective and at all times subsequent thereto up to and at each Closing Date (hereinafter defined) (i) the Registration Statement and Prospectus and any amendments or supplements thereto will contain as of each Representation Date their respective dates all material statements and information which are required to be included therein in accordance with the Act and Rules and Regulations and will in all material respects conform to the requirements of the Act and the Rules and Regulations, and (other than ii) neither the date hereof), Registration Statement nor the Prospectus, as then amended nor any amendment or supplemented, together with all of the then issued Permitted Free Writing Prospectuses, if anysupplement thereto, will not contain an include as of their respective dates any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary into make the statements therein not
Appears in 1 contract
Representations, Warranties and Agreements of the Company. Each of the Company and the Operating Partnership, jointly and severally, You represent and warrant to, and agree withwith us, DBS, on and as of (i) the date hereof, (ii) each date on which the Company delivers a Transaction Notice (the “Time of Delivery”) or executes and delivers a Terms Agreement, (iii) each Time of Sale (as defined below), (iv) each Settlement Date and (v) each Bring-Down Delivery Date (as defined in Section 6(b)) (each such date listed in (i) through (v), a “Representation Date”), as followsthat:
(a) There is no order preventing The Company has not taken, and will not take, any action, directly or suspending indirectly, that may cause the use of Placement to fail to be entitled to an exemption from registration under the Registration StatementU.S. federal securities laws, or applicable state securities or “blue sky” laws. The Company shall be responsible for any costs and expenses associated with filings, applications or registrations with any governmental or regulatory body;
(b) The Company hereby warrants that the Prospectus or Offering Materials, and any Permitted Free Writing Prospectus, and, other information relating to the knowledge of the Company, no proceeding for that purpose or pursuant to Section 8A of the Act against the Company or related to the offering has been initiated or threatened by the Commission; no notice of objection of the Commission to the use of such Registration Statement pursuant to Rule 401(g)(2) under the Act has been received by the Company; the Registration Statement complied when it initially became effectivePlacement, complies as of the date hereof and, as then amended or supplemented, as of each other Representation Date will comply, in all material respects, with the requirements of the Act; the conditions to the use of Form S-3ASR in connection with the offering and sale of the Shares as contemplated hereby have been satisfied; the Registration Statement meets, and the offering and sale of the Shares as contemplated hereby complies with, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5)); the Prospectus complied or will comply, at the time it was or will be filed with the Commission, and will comply, as then amended or supplemented, as of each Representation Date (other than the date hereof), in all material respects, with the requirements of the Act; the Registration Statement did not, as of the time of its initial effectiveness, and does not or will not, as then amended or supplemented, as of each Representation Date, contain an any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein contained therein, in the light of circumstances under which they were made, not misleading; as . The Company agrees to provide Xxxxx Xxxxxxx with (i) prompt notice of each Representation Date (any material development affecting the Company or the occurrence of any event or other than change known to the date hereof), Company that could result in the Prospectus, as then amended or supplemented, together with all of the then issued Permitted Free Writing Prospectuses, if any, will not contain Offering Materials containing an untrue statement of a material fact or omit omitting to state a any material fact necessary into make the statements contained therein, in the light of the circumstances under which they were made, not misleading, (ii) copies of any financial reports as soon as reasonably practicable and (iii) such other information concerning the business and financial condition of the Company as Xxxxx Xxxxxxx may from time to time reasonably request. Xxxxx Xxxxxxx will have the right to approve the Offering Materials and other written communications furnished by or on behalf of the Company in connection with the Placement. The Company will comply with Securities and Exchange Commission Regulation FD; Palatin Technologies, Inc. December 22, 2014
(c) The Company acknowledges that Xxxxx Xxxxxxx will be using information provided by others, including, without limitation, information provided by or on behalf of the Company, and that Xxxxx Xxxxxxx does not assume responsibility for and may rely, without independent verification, on the accuracy and completeness of any such information;
(d) The Company undertakes to provide Xxxxx Xxxxxxx with copies of all subscription or purchase agreements entered into with investors, and to the extent not included in all such subscription or purchase agreements, all information otherwise known to the Company with respect to each investor that is relevant for purposes of compliance by Xxxxx Xxxxxxx with its filing obligations under Financial Industry Regulatory Authority (“FINRA”) Rule 5123;
(e) The Company will not engage in general solicitation or general advertising in connection with the Placement (other than solicitations in connection with the Company’s registration statement on Form S-1 initially filed on September 29, 2014); and
(f) At each closing, you will permit us to rely on the representations and warranties of the Company. The Company will cause to be furnished to Xxxxx Xxxxxxx and the purchasers of the Securities, on each closing date of the Placement, copies of such opinions of counsel and such other documents, letters, certificates and opinions as Xxxxx Xxxxxxx or the purchasers may reasonably request in form and substance reasonably satisfactory to Xxxxx Xxxxxxx and its counsel and the purchasers and their counsel. To the extent the Company’s counsel shall deliver a legal opinion in connection with the Placement to the purchasers of the Securities, such opinion shall also be addressed to Xxxxx Xxxxxxx and be in form and substance satisfactory to the purchasers of the Securities and Xxxxx Xxxxxxx. Palatin Technologies, Inc. December 22, 2014
Appears in 1 contract
Samples: Placement Agent Agreement (Palatin Technologies Inc)
Representations, Warranties and Agreements of the Company. Each of the The Company represents and the Operating Partnership, jointly and severally, represent and warrant warrants to, and agree agrees with, DBS, on and as each of (i) the date hereof, (ii) each date on which the Company delivers a Transaction Notice (the “Time of Delivery”) or executes and delivers a Terms Agreement, (iii) each Time of Sale (as defined below), (iv) each Settlement Date and (v) each Bring-Down Delivery Date (as defined in Section 6(b)) (each such date listed in (i) through (v), a “Representation Date”), as followsUnderwriters that:
(a) There A registration statement on Form-S-3 (No. 33-64177), including a prospectus, relating to the Securities, has been filed with the Securities and Exchange Commission ("Commission") and has become effective. Such registration statement (including the documents incorporated by reference therein), as amended on the date of the Terms Agreement, is no order preventing hereinafter referred to as the "Registration Statement," and the prospectus (including the documents incorporated by reference therein), as supplemented on the date of the Terms Agreement (the "Prospectus Supplement") to reflect, among other things, the terms of the Purchased Securities and the terms of the offering thereof, is hereinafter referred to as the "Prospectus." Any reference to the Registration Statement or suspending Prospectus as amended or supplemented shall be deemed to include any documents filed after the use effective date of the Registration StatementStatement or date of the Prospectus, as the case may be, under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and so incorporated by reference.
(b) When each part of the registration statement relating to the Securities became effective, such part and the prospectus included therein contained all statements which were required to be stated therein in accordance with the Securities Act of 1933 ("Act"), the Prospectus or any Permitted Free Writing Prospectus, and, to Trust Indenture Act of 1939 ("Trust Indenture Act") and the knowledge of the Company, no proceeding for that purpose or pursuant to Section 8A of the Act against the Company or related to the offering has been initiated or threatened by the Commission; no notice of objection rules and regulations ("Rules and Regulations") of the Commission to the use of such Registration Statement pursuant to Rule 401(g)(2) under the Act has been received by the Company; the Registration Statement complied when it initially became effective, complies as of the date hereof and, as then amended or supplemented, as of each other Representation Date will comply, thereunder and in all material respects, with respects conformed to the requirements of the Act, the Trust Indenture Act and the Rules and Regulations, and did not include 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; and on the conditions to the use of Form S-3ASR in connection with the offering and sale date of the Shares as contemplated hereby have been satisfied; Terms Agreement and at any and all times subsequent thereto up to and including the Closing Date for the Purchased Securities to which such Terms Agreement relates, the Registration Statement meets, and the offering and sale of the Shares as contemplated hereby complies with, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5)); the Prospectus complied or will comply, at the time it was or will be filed with the Commission, and will comply, as then amended or supplementedsupplemented will contain all statements which are required to be stated therein in accordance with the Act, as of each Representation Date (other than the date hereof), Trust Indenture Act and the Rules and Regulations and in all material respects, with respects will conform to the requirements of the Act; , the Registration Statement did not, as of Trust Indenture Act and the time of its initial effectivenessRules and Regulations, and does will not or will not, as then amended or supplemented, as of each Representation Date, contain an 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; as except that the foregoing does not apply to statements in or omissions from any such documents that are based upon written information furnished to the Company by any Underwriter through the Representatives specifically for use therein.
(c) Each document or portion thereof incorporated by reference in the Prospectus conformed, when filed with the Commission, in all material respects to the requirements of each Representation Date the Act and the Rules and Regulations or the Exchange Act and the rules and regulations of the Commission thereunder (other than the date hereof"Exchange Act Rules and Regulations"), as the Prospectuscase may be, as then amended or supplemented, together with all of the then issued Permitted Free Writing Prospectusesand each document, if any, hereafter filed under the Exchange Act and deemed to be incorporated by reference in the Prospectus in accordance with Item 12 of Form S-3 will conform when so filed with the requirements of the Exchange Act and the Exchange Act Rules and Regulations.
(d) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, except as otherwise stated therein, (i) there has been no material adverse change in the condition, financial or otherwise, of the Company and its consolidated subsidiaries considered as one enterprise, or in the earnings, business affairs or business prospects of the Company and its consolidated subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business, (ii) there have been no material transactions entered into by the Company or any of its consolidated subsidiaries other than those in the ordinary course of business, and (iii) except for regular quarterly dividends on the Common Stock and on outstanding series of the Company's Serial Preferred Stock, there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock.
(e) The Company and each of its consolidated subsidiaries have been duly incorporated and are existing corporations in good standing under the laws of their respective jurisdictions of incorporation, with corporate power and authority to own, lease and operate their respective properties and conduct their respective businesses as described in the Prospectus; and are duly qualified as foreign corporations to transact business and are in good standing in each jurisdiction in which their respective ownership or leasing of properties or the conduct of their respective businesses requires such qualification, except where the failure to be so qualified, considering all such cases in the aggregate, does not involve a material risk to the business, properties, financial position or results of operations of the Company and its consolidated subsidiaries.
(f) The authorized, issued and outstanding Common Stock of the Company is as set forth in the Prospectus, except for subsequent issuances, if any, pursuant to reservations or agreements referred to therein; and the shares of issued and outstanding Common Stock set forth therein have been duly and validly authorized and issued and are fully paid and non-assessable.
(g) Neither the Company nor any of its consolidated subsidiaries is in violation of its charter or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, loan agreement, note, lease or other instrument to which it is a party or by which it or any of them may be bound; and the execution and delivery of this Agreement, and the consummation of the transactions herein contemplated will not contain an untrue statement conflict with or constitute a breach of, or default under, the Articles of Incorporation or Code of Regulations of the Company or any material bond, debenture, note or other evidence of indebtedness or any material contract, indenture, mortgage, loan agreement, lease or other instrument to which the Company or any of its consolidated subsidiaries is a party or by which it or any of them may be bound, or any law, administrative regulation or court decree.
(h) There is no action, suit or proceeding before or 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 of its consolidated subsidiaries, which is required to be disclosed in the Prospectus or which might result in any material fact adverse change in the earnings, affairs, condition (financial or omit otherwise), business or prospects of the Company and its consolidated subsidiaries considered as one enterprise, or might materially adversely affect the properties or assets thereof or might materially and adversely affect the consummation of transactions contemplated by this Agreement; all pending legal or governmental proceedings to state which the Company or any consolidated subsidiary is a party or of which any of their property is the subject which are not described in the Prospectus, including ordinary routine litigation incidental to the business, are, considered in the aggregate, not material; and there are no contracts or documents of the Company or any of its consolidated subsidiaries which would be required to be filed as exhibits to the Registration Statement by the Act or by the Rules and Regulations which have not been filed as exhibits to the Registration Statement.
(i) The Purchased Securities have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters in accordance with the terms of this Agreement, will be entitled to the benefits of the Indenture and will be valid and legally binding obligations of the Company, enforceable in accordance with their terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles; and the Purchased Securities conform in all material fact necessary inrespects to the description thereof contained in the Prospectus.
(j) This Agreement has been duly authorized, executed and delivered by the Company .
(k) The Indenture has been duly qualified under the Trust Indenture Act and has been duly authorized and, when executed and delivered by the Company, will constitute a valid and legally binding instrument of the Company, enforceable against the Company in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles, and the Indenture conforms in all material respects to the description thereof contained in the Prospectus.
Appears in 1 contract
Representations, Warranties and Agreements of the Company. Each of the The Company represents and the Operating Partnership, jointly and severally, represent and warrant warrants to, and agree agrees with, DBSXxxxxxx Xxxxx, on and as of (i) the date hereof, (ii) each date on which the Company delivers and Xxxxxxx Xxxxx agree upon a Transaction Notice (the a “Time of DeliveryAcceptance”) or the Company executes and delivers a Terms Agreement, (iii) each Time of Sale (as defined below), (iv) each Settlement Date and (v) each Bring-Down Delivery Date (as defined in Section 6(b)) (each such date listed in (i) through (v), a “Representation Date”), as follows:
(a) There is no order preventing or suspending the use of the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus, and, to the knowledge of the Company, no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering has been initiated or threatened by the Commission; no notice of objection of the Commission to the use of such Registration Statement pursuant to Rule 401(g)(2) under the Securities Act has been received by the Company; the Registration Statement complied when it initially became effective, complies as of the date hereof and, as then amended or supplemented, as of each other Representation Date (other than the date hereof) will comply, in all material respects, with the requirements of the Securities Act; the conditions to the use of Form S-3ASR S-3 in connection with the offering and sale of the Shares as contemplated hereby have been satisfied; the Registration Statement meets, and the offering and sale of the Shares as contemplated hereby complies with, the requirements of Rule 415 under the Securities Act (including, without limitation, Rule 415(a)(5)); the Prospectus complied or will comply, at the time it was or will be filed with the Commission, and will comply, as then amended or supplemented, as of each Representation Date (other than the date hereof), in all material respects, with the requirements of the Securities Act; the Registration Statement did not, as of the time of its initial effectiveness, and does not or will not, as then amended or supplemented, as of each Representation Date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; as of each Representation Date (other than the date hereof), the Prospectus, as then amended or supplemented, together with all of the then issued Permitted Free Writing Prospectuses, if any, will not contain an untrue statement of a material fact or omit to state a material fact necessary inin order to make the statements therein, in the light of the circumstances under which they were made, not misleading; the Prospectus, as of its date, did not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no representation or warranty with respect to any statement or omission in the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus in reliance upon and in conformity with information
Appears in 1 contract
Representations, Warranties and Agreements of the Company. Each of the The Company represents and the Operating Partnership, jointly and severally, represent and warrant warrants to, and agree agrees with, DBSthe Agent, on and as of (i) the date hereof, (ii) each date on which the Company delivers receives a Transaction Notice Acceptance (the “Time of DeliveryAcceptance”), (iii) or each date on which the Company executes and delivers a Terms Agreement, (iiiiv) each Time of Sale (as defined belowin Section 3(a)), (ivv) each Settlement Date and (vvi) each Bring-Down Delivery Date (as defined in Section 6(b)) (each such date listed in (i) through (vvi), a “Representation Date”), as follows:
(a) There The Company meets the requirements for use of Form F-3 under the 1933 Act. The Registration Statement is an “automatic shelf registration statement” (as defined in Rule 405) and the Shares have been and remain eligible for registration by the Company on such automatic shelf registration statement. Each of the Registration Statement and any post-effective amendment thereto has become effective under the 1933 Act. No stop order suspending the effectiveness of the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus, and, no order preventing or suspending the use of the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus, andProspectus has been issued and no proceedings for any of those purposes have been instituted or are pending or, to the knowledge of the Company’s knowledge, no proceeding for that purpose or pursuant to Section 8A of the Act against the contemplated. The Company or related to the offering has been initiated or threatened by the Commission; no notice of objection of complied with each request (if any) from the Commission to for additional information. The Registration Statement, at the use time of such Registration Statement pursuant to Rule 401(g)(2) under the Act has been received by the Company; the Registration Statement complied when it initially became effective, complies its effectiveness and as of the date hereof and, as then amended or supplemented, as of each other Representation Date will comply, in all material respects, with the requirements of the Act; the conditions to the use of Form S-3ASR in connection with the offering Prospectus and sale of the Shares as contemplated hereby have been satisfied; the Registration Statement meets, and the offering and sale of the Shares as contemplated hereby complies with, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5)); the Prospectus complied any amendment or will complysupplement thereto, at the time it each was or will be filed with the Commission, and will complyand, as then amended or supplementedin each case, as of each Representation Date (other than the date hereof)Date, complied and will comply in all material respects, with the requirements of the Act; Act and each Prospectus delivered to the Agent for use in connection with this offering was identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T. The documents incorporated or deemed to be incorporated by reference in the Registration Statement did notand 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 1934 Act and the rules and regulations of the Commission under the 1934 Act (the “1934 Act Regulations”).
(b) Neither the Registration Statement nor any amendment thereto, at its effective time, on the date hereof or, as of the time of its initial effectivenesseach Representation Date, and does not contained, contains or will notcontain an untrue statement of a material fact or omitted, omits or will omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. Neither the Prospectus, as then amended or supplemented, together with all of the then issued Permitted Free Writing Prospectuses, if any, as of its issue date, at the time of any filing with the Commission pursuant to Rule 424(b) and as of each Representation Date, contain included, includes or will include an untrue statement of a material fact or omitted, omits or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The documents incorporated or deemed to be incorporated by reference in the Registration Statement and the Prospectus, at the time the Registration Statement became effective or when such documents incorporated by reference were filed with the Commission, as the case may be, when read together with the other information in the Registration Statement or the Prospectus, as the case may be, did not and will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; as of each Representation Date (other than the date hereof), the Prospectus, as then amended or supplemented, together with all of the then issued Permitted Free Writing Prospectuses, if any, will not contain an untrue statement of a material fact or omit to state a material fact necessary in.
Appears in 1 contract
Samples: Distribution Agreement (Atlantica Sustainable Infrastructure PLC)
Representations, Warranties and Agreements of the Company. Each of the The Company represents and the Operating Partnership, jointly and severally, represent and warrant warrants to, and agree agrees with, DBSthe Agent, on and as of (i) the date hereof, (ii) each date on which the Company delivers receives a Transaction Notice Acceptance (the “Time of DeliveryAcceptance”), (iii) or each date on which the Company executes and delivers a Terms Agreement, (iiiiv) each Time of Sale (as defined belowin Section 3(a)), (ivv) each Settlement Date and (vvi) each Bring-Down Delivery Date (as defined in Section 6(b)) (each such date listed in (i) through (vvi), a “Representation Date”), as follows:
(a) The Registration Statement is an “automatic shelf registration statement” as defined under Rule 405 of the Act that has been filed with the Commission not earlier than three years prior to the date hereof. There is no order preventing or suspending the use of the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus, and, to the knowledge of the Company, no proceeding for that purpose or pursuant to Section 8A of the Act against the Company or related to the offering has been initiated or threatened by the Commission; no notice of objection of the Commission to the use of such Registration Statement pursuant to Rule 401(g)(2) under the Act has been received by the Company; the Registration Statement complied when it initially became effective, complies as of the date hereof and, as then amended or supplemented, as of each other Representation Date will comply, in all material respects, with the requirements of the Act; the conditions to the use of Form S-3ASR S-3 in connection with the offering and sale of the Shares as contemplated hereby have been satisfied; the Registration Statement meets, and the offering and sale of the Shares as contemplated hereby complies comply with, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5)); the Prospectus complied or will comply, at the time it was or will be filed with the Commission, and will comply, as then amended or supplemented, as of each Representation Date (other than the date hereof)Date, in all material respects, with the requirements of the Act; the Registration Statement did not, as of the time of its initial effectiveness, and does not or will not, as then amended or supplemented, as of each Representation Date, contain an any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; as of each Representation Date (other than the date hereof)Date, the Prospectus, as then amended or supplemented, together with all of the then issued Permitted Free Writing Prospectuses, if any, will not contain an untrue statement of a material fact or omit to state a material fact necessary inin 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 representation or warranty with respect to any statement in or omission from the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus made in reliance upon and in conformity with information concerning the Agent and furnished in writing by or on behalf of the Agent expressly for use in the Registration Statement, the Prospectus or such Permitted Free Writing Prospectus (it being understood that such information consists solely of the information specified in Section 9(b)). As used herein, “Time of Sale” means (i) with respect to each offering of Shares pursuant to this Agreement, the time of the Agent’s initial entry into contracts with investors for the sale of such Shares and (ii) with respect to each offering of Shares pursuant to any relevant Terms Agreement, the time of sale of such Shares.
Appears in 1 contract
Representations, Warranties and Agreements of the Company. Each of The Company represents and warrants to the Company and the Operating Partnership, jointly and severally, represent and warrant to, and agree with, DBSAgent, on and as of (i) the date hereof, (ii) each date on which the Company delivers receives a Transaction Notice Acceptance (the “Time of DeliveryAcceptance”), (iii) or each date on which the Company executes and delivers a Terms Agreement, (iiiiv) each Time of Sale (as defined belowin Section 3(a)), (ivv) each Settlement Date Date, and (vvi) each Bring-Down Delivery Date (as defined in Section 6(b)) (each such date listed in (i) through (vvi), a “Representation Date”), as follows:
(a) There a. The Company meets the requirements for use of Form S-3 under the Act. The aggregate market value of all securities sold by or on behalf of the Company pursuant to Form S-3 during the period of 12 calendar months immediately prior to, and including, the offering contemplated hereby is no order preventing or suspending more than the use aggregate market value of the voting and non-voting common equity held by non-affiliates of the Company. The Company is not, and has not been for at least 12 calendar months prior to the filing of the Registration Statement, a shell company. The Company filed with the Prospectus or any Permitted Free Writing Commission the Registration Statement on such form, including a Prospectus, and, to the knowledge of the Company, no proceeding for that purpose or pursuant to Section 8A of the Act against the Company or related to the offering has been initiated or threatened by the Commission; no notice of objection of the Commission to the use of such Registration Statement pursuant to Rule 401(g)(2) registration under the Act has been received by of the Company; offering and sale of the Shares. When the Registration Statement complied when it initially became or any amendment thereof or supplement thereto was or is declared effective, complies as of the date hereof and, as then amended it (i) complied or supplemented, as of each other Representation Date will comply, in all material respects, with the requirements of the Act; , the conditions to Exchange Act and the use of Form S-3ASR in connection with the offering rules and sale regulations of the Shares as contemplated hereby have been satisfied; the Registration Statement meets, Commission thereunder and the offering and sale of the Shares as contemplated hereby complies with, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5)); the Prospectus complied or will comply, at the time it was or will be filed with the Commission, and will comply, as then amended or supplemented, as of each Representation Date (other than the date hereof), in all material respects, with the requirements of the Act; the Registration Statement ii) did not, as of the time of its initial effectiveness, and does not or will not, as then amended or supplemented, as of each Representation Date, contain an 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 not misleading; . When any Prospectus was first filed with the Commission (whether filed as part of each Representation Date (other than the date hereof)Registration Statement or any amendment thereto or pursuant to Rule 424 of the Act) and when any amendment thereof or supplement thereto was first filed with the Commission, the Prospectus, such Prospectus as then amended or supplemented, together with all of the then issued Permitted Free Writing Prospectuses, if any, complied in all material respects with the applicable provisions of the Act and did not or will not not, contain an 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 not misleading. If applicable, the Prospectus delivered to the Agent for use in connection with this offering was identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T. Notwithstanding the foregoing, none of the representations and warranties in this paragraph 3(a) shall apply to statements in, or omissions from, the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus made in reliance upon, and in conformity with, information herein or otherwise furnished in writing by the Agent specifically for use in the Registration Statement, the Prospectus or such Permitted Free Writing Prospectus. With respect to the preceding sentence, the Company acknowledges that the only information furnished in writing by the Agent for use in the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus are the statements set forth in Exhibit E hereto (collectively, the “Information Supplied by the Agent”) or the Prospectus. As used herein, “Time of Sale” means (i) with respect to each offering of Shares pursuant to this Agreement, the time of the Agent’s initial entry into contracts for the sale of such Shares, and (ii) with respect to each offering of Shares pursuant to any relevant Terms Agreement, the time of sale of such Shares.
Appears in 1 contract
Representations, Warranties and Agreements of the Company. Each of the The Company represents and the Operating Partnership, jointly and severally, represent and warrant warrants to, and agree agrees with, DBSthe Underwriter and the Selling Stockholder, on and as of (i) the date hereof, Time of Sale and (ii) each date on which the Company delivers a Transaction Notice (the “Time of Delivery”) or executes and delivers a Terms AgreementClosing Date, (iii) each Time of Sale (as defined below), (iv) each Settlement Date and (v) each Bring-Down Delivery Date (as defined in Section 6(b)) applicable (each such date listed in (i) through and (vii), a “Representation Date”), as follows:
(a) There No order preventing or suspending the use of any Preliminary Prospectus has been issued by the Commission, and each Preliminary Prospectus included in the Pricing Disclosure Package, at the time of filing thereof, complied in all material respects with the Securities Act, and no Preliminary Prospectus, at the time of filing thereof, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company makes no representation and warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to the Underwriter furnished to the Company in writing by the Underwriter expressly for use in any Preliminary Prospectus, it being understood and agreed that the only such information furnished by the Underwriter consists of the information described as such in Section 10(c) hereof. The Pricing Disclosure Package as of the Time of Sale did not, and as of the Closing Date, 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 that the Company makes no representation and warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to the Underwriter furnished to the Company in writing by the Underwriter expressly for use in such Pricing Disclosure Package, it being understood and agreed that the only such information furnished by the Underwriter consists of the information described as such in Section 10(c) hereof. The Registration Statement is an “automatic shelf registration statement” as defined under Rule 405 of the Securities Act that has been filed with the Commission not earlier than three years prior to the date hereof; there is no order preventing or suspending the use of the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus, and, to the knowledge of the Company, no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering has been initiated or threatened by the Commission; no notice of objection of the Commission to the use of such Registration Statement pursuant to Rule 401(g)(2) under the Securities Act has been received by the Company; the Registration Statement complied when it initially became effective, complies as of the date hereof and, as then amended or supplemented, as of each other Representation Date will comply, in all material respects, with the requirements of the Securities Act; the conditions to the use of Form S-3ASR S-3 in connection with the offering and sale of the Shares as contemplated hereby have been satisfied; the Registration Statement meets, and the offering and sale of the Shares as contemplated hereby complies with, the requirements of Rule 415 under the Securities Act (including, without limitation, Rule 415(a)(5)); the Prospectus complied or will comply, at the time it was or will be filed with the Commission, and will comply, as then amended or supplemented, as of each Representation Date (other than the date hereof)Closing Date, in all material respects, with the requirements of the Securities Act; the Registration Statement did not, as of the time of its initial effectiveness, and does not or will not, as then amended or supplemented, as of each Representation Date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; as of each Representation Date (other than the date hereof)Closing Date, the Prospectus, as then amended or supplemented, together with all of the then issued Permitted Free Writing Prospectuses, if any, will not contain an untrue statement of a material fact or omit to state a material fact necessary inin 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 representation or warranty with respect to any statement or omission in the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus in reliance upon and in conformity with information concerning the Underwriter and furnished in writing by or on behalf of the Underwriter expressly for use in the Registration Statement, the Prospectus or such Permitted Free Writing Prospectus (it being understood that such information consists solely of the information specified in Section 10(c)).
(b) Prior to the execution of this Agreement, the Company has not, directly or indirectly, offered or sold any of the Shares by means of any “prospectus” (within the meaning of the Securities Act) or used any “prospectus” (within the meaning of the Securities Act) in connection with the offer or sale of the Shares, in each case other than the Basic Prospectus and the Preliminary Prospectus. The Company represents and agrees that, unless it obtains the prior consent of the Underwriter, it has not made and will not make any offer relating to the Shares that would constitute an “issuer free writing prospectus” (as defined in Rule 433 under the Securities Act) or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under the Securities Act). Any such free writing prospectus relating to the Shares consented to by the Underwriter is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has complied and will comply in all material respects with the requirements of Rule 433 under the Securities Act applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The conditions set forth in one or more of subclauses (i) through (iv), inclusive, of Rule 433(b)(1) under the Securities Act are satisfied, and the registration statement relating to the offering of the Shares contemplated hereby, as initially filed with the Commission, includes a prospectus that, other than by reason of Rule 433 or Rule 431 under the Securities Act, satisfies the requirements of Section 10 of the Securities Act; neither the Company nor the Underwriter is disqualified, by reason of Rule 164(f) or (g) under the Securities Act, from using, in connection with the offer and sale of the Shares, “free writing prospectuses” (as defined in Rule 405 under the Securities Act) pursuant to Rules 164 and 433 under the Securities Act; the Company is not an “ineligible issuer” (as defined in Rule 405 under the Securities Act) as of the eligibility determination date for purposes of Rules164 and 433 under the Securities Act with respect to the offering of the Shares contemplated by the Registration Statement.
(c) The Incorporated Documents, when they were filed with the Commission, conformed in all material respects to the requirements of the Securities Act or the Exchange Act, as applicable, 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, in light of the circumstances under which they were made, not misleading; and any further documents so filed and incorporated by reference in the Registration Statement, the Pricing Disclosure Package, the Prospectus or any Permitted Free Writing Prospectus, when such documents become effective or are filed with the Commission, as the case may be, will conform in all material respects to the requirements of the Securities Act or the Exchange Act, as applicable, and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(d) The financial statements and the related notes thereto included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package, the Prospectus and any Permitted Free Writing Prospectus (other than with respect to the financial data incorporated by reference from the Company’s Current Report on Form 8-K filed with the Commission on April 20, 2011) comply in all material respects with the applicable requirements of the Securities Act and the Exchange Act, as applicable, and present fairly the financial position of the Company and its consolidated subsidiaries at the dates indicated and their results of operations, stockholders’ equity and cash flows for the periods specified, and such financial statements have been prepared in conformity with the generally accepted accounting principles in the United States (“GAAP”) applied on a consistent basis throughout the periods involved. The other historical financial and statistical information and data included or incorporated by reference (including, without limitation, the financial data incorporated by reference from the Company’s Current Report on Form 8-K filed with the Commission on April 20, 2011) in the Registration Statement, the Pricing Disclosure Package, Prospectus or any Permitted Free Writing Prospectus are, in all material respects, fairly presented.
(e) Except in each case as otherwise disclosed in the Registration Statement, the Pricing Disclosure Package, the Prospectus and any Permitted Free Writing Prospectus, since the date of the most recent financial statements of the Company included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package, the Prospectus and any Permitted Free Writing Prospectus, (i) there has not been any material change in the capital stock or long-term debt of the Company or any of its subsidiaries and there has not been a Material Adverse Effect (as defined below), (ii) neither the Company nor any of its subsidiaries has entered into any transaction or agreement that is material to the Company and its subsidiaries, taken as a whole, or incurred any liability or obligation, direct or contingent, except for such liabilities or obligations that, individually or in the aggregate, would not have a Material Adverse Effect and (iii) neither the Company nor any of its subsidiaries has sustained any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor disturbance or dispute or any action, order or decree of any court or arbitrator or governmental or regulatory authority, except for such losses that, individually or in the aggregate, would not have a Material Adverse
Appears in 1 contract
Samples: Underwriting Agreement (Citadel L P)
Representations, Warranties and Agreements of the Company. Each of the The Company represents and the Operating Partnership, jointly and severally, represent and warrant warrants to, and agree agrees with, DBSthe Agent, on and as of (i) the date hereof, (ii) each date on which the Company delivers receives a Transaction Notice Acceptance (the “Time of DeliveryAcceptance”), (iii) or each date on which the Company executes and delivers a Terms Agreement, (iiiiv) each Time of Sale (as defined belowin Section 3(a)), (ivv) each Settlement Date and (vvi) each Bring-Down Delivery Date (as defined in Section 6(b)) (each such date listed in (i) through (vvi), a “Representation Date”), as follows:
(a) There The Registration Statement is an “automatic shelf registration statement” as defined under Rule 405 of the Act, or, alternatively has been amended to a shelf registration statement under Rule 415 of the Act as needed, that has been filed with the Commission not earlier than three years prior to the date hereof; there is no order preventing or suspending the use of the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus, and, to the knowledge of the Company, no proceeding for that purpose or pursuant to Section 8A of the Act against the Company or related to the offering has been initiated or or, to the knowledge of the Company, threatened by the Commission; no notice of objection of the Commission to the use of such Registration Statement pursuant to Rule 401(g)(2) under the Act has been received by the Company; the Registration Statement complied when it initially became effective, complies as of the date hereof and, as then amended or supplemented, as of each other Representation Date will comply, in all material respects, with the requirements of the Act; the conditions to the use of Form S-3ASR S-3 in connection with the offering and sale of the Shares as contemplated hereby have been satisfied; the Registration Statement meets, and the offering and sale of the Shares as contemplated hereby complies comply with, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5)); the Prospectus complied or will comply, at the time it was or will be filed with the Commission, and will comply, as then amended or supplemented, as of each Representation Date (other than the date hereof)Date, in all material respects, with the requirements of the Act; the Registration Statement did not, as of the time of its initial effectiveness, and does not or will not, as then amended or supplemented, as of each Representation Date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; as of each Representation Date (other than the date hereof)Date, the Prospectus, as then amended or supplemented, together with all of the then issued Permitted Free Writing Prospectuses, if any, will not contain an untrue statement of a material fact or omit to state a material fact necessary inin 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 representation or warranty with respect to any statement in or omission from the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus made in reliance upon and in conformity with information concerning the Agent and furnished in writing by or on behalf of the Agent expressly for use in the Registration Statement, the Prospectus or such Permitted Free Writing Prospectus (it being understood that such information consists solely of the information specified in Section 9(b)). As used herein, “Time of Sale” means (i) with respect to each offering of Shares pursuant to this Agreement, the time of the Agent’s initial entry into contracts with investors for the sale of such Shares and (ii) with respect to each offering of Shares pursuant to any relevant Terms Agreement, the time of sale of such Shares.
Appears in 1 contract
Representations, Warranties and Agreements of the Company. Each of the The Company represents and the Operating Partnership, jointly and severally, represent and warrant warrants to, and agree agrees with, DBSeach Agent, on and as of (i) the date hereof, (ii) each date on which the Company delivers receives a Transaction Notice Acceptance (the “Time of DeliveryAcceptance”), (iii) or each date on which the Company executes and delivers a Terms Agreement, (iiiiv) each Time of Sale (as defined belowin Section 3(a)), (ivv) each Settlement Date and (vvi) each Bring-Down Delivery Date (as defined in Section 6(b)) (each such date listed in (i) through (vvi), a “Representation Date”), as follows:
(a) There The Registration Statement is an “automatic shelf registration statement” as defined under Rule 405 of the Act that has been filed with the Commission not earlier than three years prior to the date hereof; and no notice of objection of the Commission to the use of such Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act has been received by the Company. No order preventing or suspending the use of the Registration Statement, the Prospectus or any Permitted Free Writing ProspectusProspectus (as defined below) has been issued by the Commission, and, to the knowledge of the Company, and no proceeding for that purpose or pursuant to Section 8A of the Act against the Company or related to the offering has been initiated or threatened by the Commission; no notice of objection of the Commission to the use of such Registration Statement pursuant to Rule 401(g)(2) under the Act has been received by the Company; the Registration Statement complied when it initially became effective, complies as of the date hereof and, as then amended or supplemented, as of each other Representation Date will comply, in all material respects, with the requirements of the Act; the conditions to the use of Form S-3ASR S-3 in connection with the offering and sale of the Shares as contemplated hereby have been satisfied; the Registration Statement meets, and the offering and sale of the Shares as contemplated hereby complies comply with, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5)); the Prospectus complied or will comply, at the time it was or will be filed with the Commission, and will comply, as then amended or supplemented, as of each Representation Date (other than the date hereof)Date, in all material respects, with the requirements of the Act; the Registration Statement did not, as of the time of its initial effectiveness, and does not or will not, as then amended or supplemented, as of each Representation Date, contain an 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; and as of each Representation Date (other than the date hereof)Date, the Prospectus, as then amended or supplemented, together with all of the then issued Permitted Free Writing ProspectusesProspectuses (as defined below), if any, will not contain an any untrue statement of a material fact or omit to state a material fact necessary inin order to make the
Appears in 1 contract
Representations, Warranties and Agreements of the Company. Each As of the Company and the Operating Partnership, jointly and severally, represent and warrant to, and agree with, DBS, on and as of (i) the date hereof, (ii) each date on which the Company delivers a Transaction Notice (represents and warrants to, and agrees with, the “Time of Delivery”) or executes and delivers a Terms Agreement, (iii) each Time of Sale (as defined below), (iv) each Settlement Date and (v) each Bring-Down Delivery Date (as defined in Section 6(b)) (each such date listed in (i) through (v), a “Representation Date”), as followsInitial Purchaser that:
(a) There is no order preventing or suspending the use of the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus, and, to the knowledge of the Company, no proceeding for that purpose or pursuant to Section 8A of the Act against the Company or related to the offering has been initiated or threatened by the Commission; no notice of objection of the Commission to the use of such Registration Statement pursuant to Rule 401(g)(2) under the Act has been received by the Company; the Registration Statement complied when it initially became effective, complies as of the date hereof and, as then amended or supplemented, as of each other Representation Date will comply, in all material respects, with the requirements of the Act; the conditions to the use of Form S-3ASR in connection with the offering and sale of the Shares as contemplated hereby have been satisfied; the Registration Statement meetsThe Offering Memorandum does not, and the offering and sale of the Shares as contemplated hereby complies with, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5)); the Prospectus complied any supplement or will comply, at the time amendment to it was or will be filed with the Commission, and will comply, as then amended or supplemented, as of each Representation Date (other than the date hereof), in all material respects, with the requirements of the Act; the Registration Statement did not, as of the time of its initial effectiveness, and does not or will not, as then amended or supplemented, as of each Representation Date, contain an any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading; , except that the representations and warranties contained in this paragraph (a) shall not apply to statements in or omissions from the Offering Memorandum (or any supplement or amendment thereto) based upon information relating to the Initial Purchaser furnished to the Company in writing by the Initial Purchaser expressly for use therein. No stop order preventing the use of the Offering Memorandum, or any amendment or supplement thereto, or any order asserting that any of the transactions contemplated by this Agreement are subject to the registration requirements of the Act, has been issued.
(b) Each of the Company and its subsidiaries has been duly incorporated, is validly existing as a corporation or limited liability company in good standing under the laws of its jurisdiction of incorporation or formation and has the corporate or limited liability company power and authority to carry on its business as described in the Offering Memorandum and to own, lease and operate its properties, and each Representation Date is duly qualified and is in good standing as a foreign corporation or entity authorized to do business in each jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the business, prospects, financial condition or results of operations of the Company and its subsidiaries, taken as a whole (other than the date hereofa "MATERIAL ADVERSE EFFECT"), as the Prospectuscase may be. Each of the subsidiaries of the Company listed on Schedule B hereto (the "SUBSIDIARIES"), as then amended or supplemented, together with which Subsidiaries in the aggregate directly own substantially all of the then assets held by the Company and all of its subsidiaries on a consolidated basis and which constitute all of the Company's "significant subsidiaries" (as such term is defined in Regulation S-X under the Act), has been duly incorporated, is validly existing as a corporation or limited liability company in good standing under the laws of its jurisdiction of incorporation or formation and has the corporate or limited liability company power and authority to carry on its business and to own, lease and operate its properties, and each is duly qualified and is in good standing as a foreign corporation or entity authorized to do business in each jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification, except where the failure to be so qualified would not have a Material Adverse Effect.
(c) All outstanding shares of capital stock of the Company and its subsidiaries have been duly authorized and validly issued Permitted Free Writing Prospectusesand are fully paid, if anynon-assessable and not subject to any preemptive or similar rights and after giving effect to the offering contemplated hereby the Preferred Stock, when issued and delivered to the Initial Purchaser against payment therefor as provided by this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Preferred Stock will not contain be subject to any preemptive or similar rights.
(d) There are no authorized or outstanding subscriptions, options, warrants, preemptive rights, rights of first refusal or other rights to purchase, or equity or debt securities convertible or exchangeable into or exchangeable or exercisable for, any capital stock of the Company or any of its subsidiaries other than (1) those described or incorporated by reference in the Offering Memorandum (2) outstanding employee stock options or options issuable under existing employee benefit plans, (3) contingent or executory purchase price payments or adjustments in connection with stock or asset acquisitions, and (4) the right of Nisho Iwai to acquire an untrue statement equity interest in the subsidiary that owns the Iolair.
(e) There are no agreements, understandings or arrangements among the Company or any other person regarding the ownership or disposition of capital stock of the Company or any of its subsidiaries for election of directors except (1) as described in the Certificate of Designation and the Offering Memorandum or incorporated by reference in the Offering Memorandum, (2) employee stock options or options issuable under existing employee benefit plans, (3) contingent or executory purchase price payments or adjustments in connection with stock or asset acquisitions, and (4) the right of Nisho Iwai to acquire an equity interest in the subsidiary that owns the Iolair.
(f) This Agreement has been duly authorized, executed and delivered by the Company.
(g) The form of the Indenture has been duly authorized by the Company and, on the Exchange Date, the Indenture will have been validly executed and delivered by the Company. When the Indenture has been duly executed and delivered by the Company, the Indenture will be a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms except as (i) the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent transfer or similar laws affecting creditors' rights generally (the "ENFORCEABILITY EXCEPTIONS") and (ii) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability. On the Closing Date, the Indenture will conform as to form in all material fact respects to the requirements of the Trust Indenture Act of 1939, as amended (the "TIA" or omit "TRUST INDENTURE ACT"), and the rules and regulations of the Commission applicable to state an indenture which is qualified thereunder.
(h) On the Closing Date, the Certificate of Designation relating to the Restricted Preferred Stock, the New Preferred Stock and any additional shares of Preferred Stock issued as dividends in accordance with the terms of the Certificate of Designation (the "DIVIDEND SHARES") will have been duly authorized by the Company. On the Closing Date, the Certificate of Designation will have been duly filed with the Secretary of State of the State of Delaware, and the Amended and Restated Certificate of Incorporation of the Company, including the Certificate of Designation forming part thereof, will set forth the rights, preferences and priorities of the Preferred Stock and the Dividend Shares.
(i) The Unit Agreement has been duly authorized by the Company and, when executed and delivered by the Company, will constitute a material fact necessary invalid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms, subject to (x) the Enforceability Exceptions and (y) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability.
(j) The Warrant Agreement has been duly authorized by the Company and, when executed and delivered by the Company, will constitute a valid and legally binding agreement of
Appears in 1 contract
Samples: Purchase Agreement (R&b Falcon Corp)
Representations, Warranties and Agreements of the Company. Each of the The Company represents and the Operating Partnership, jointly and severally, represent and warrant warrants to, and agree agrees with, DBSeach Agent, on and as of (i) the date hereof, (ii) each date on which the Company delivers receives a Transaction Notice Acceptance (the “Time of DeliveryAcceptance”), (iii) or each date on which the Company executes and delivers a Terms Agreement, (iiiiv) each Time of Sale (as defined belowin Section 3(a)), (ivv) each Settlement Date and (vvi) each Bring-Down Delivery Date (as defined in Section 6(b)) (each such date listed in (i) through (vvi), a “Representation Date”), as follows:
(a) There The Registration Statement was declared effective by the Commission not earlier than three years prior to the date hereof; there is no order preventing or suspending the use of the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus, and, to the knowledge of the Company, no proceeding for that purpose or pursuant to Section 8A of the Act against the Company or related to the offering has been initiated or threatened by the Commission; no notice of objection of the Commission to the use of such Registration Statement pursuant to Rule 401(g)(2) under the Act has been received by the Company; the Registration Statement complied when it initially became effective, complies as of the date hereof and, as then amended or supplemented, as of each other Representation Date will comply, in all material respects, with the requirements of the Act; the conditions to the use of Form S-3ASR S-3 in connection with the offering and sale of the Shares as contemplated hereby have been satisfied; the Registration Statement meets, and the offering and sale of the Shares as contemplated hereby complies comply with, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5)); the Prospectus complied or will comply, at the time it was or will be filed with the Commission, and will comply, as then amended or supplemented, as of each Representation Date (other than the date hereof)Date, in all material respects, with the requirements of the Act; the Registration Statement did not, as of the time of its initial effectiveness, and does not or will not, as then amended or supplemented, as of each Representation Date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; as of each Representation Date (other than the date hereof)Date, the Prospectus, as then amended or supplemented, together with all of the then issued Permitted Free Writing Prospectuses, if any, will not contain an untrue statement of a material fact or omit to state a material fact necessary inin 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 representation or warranty with respect to any statement in or omission from the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus made in reliance upon and in conformity with information concerning any Agent and furnished in writing by or on behalf of any Agent expressly for use in the Registration Statement, the Prospectus or such Permitted Free Writing Prospectus (it being understood that such information consists solely of the information specified in Section 9(b)). As used herein, “Time of Sale” means (i) with respect to each offering of Shares pursuant to this Agreement, the time of the applicable Agent’s initial entry into contracts with investors for the sale of such Shares and (ii) with respect to each offering of Shares pursuant to any relevant Terms Agreement, the time of sale of such Shares.
Appears in 1 contract
Representations, Warranties and Agreements of the Company. Each of the Company and the Operating Partnership, jointly and severally, You represent and warrant to, and agree withwith us, DBS, on and as of (i) the date hereof, (ii) each date on which the Company delivers a Transaction Notice (the “Time of Delivery”) or executes and delivers a Terms Agreement, (iii) each Time of Sale (as defined below), (iv) each Settlement Date and (v) each Bring-Down Delivery Date (as defined in Section 6(b)) (each such date listed in (i) through (v), a “Representation Date”), as followsthat:
(a) There is no order preventing The Company has not taken, and will not take, any action, directly or suspending the use of the Registration Statementindirectly, the Prospectus or any Permitted Free Writing Prospectus, and, that may cause a Placement to the knowledge of the Company, no proceeding for that purpose or pursuant fail to Section 8A of the Act against the Company or related be entitled to the offering has been initiated or threatened by the Commission; no notice of objection of the Commission to the use of such Registration Statement pursuant to Rule 401(g)(2) an exemption from registration under the Act has been received by the Company; the Registration Statement complied when it initially became effectiveU.S. federal securities laws, complies as of the date hereof andor applicable state securities or "blue sky" laws. The Company shall be responsible for any costs and expenses associated with filings, as then amended applications or supplementedregistrations with any governmental or regulatory body, as of each other Representation Date will comply, in all material respects, with the requirements of the Act; the conditions to the use of Form S-3ASR in connection with the offering and sale of the Shares as contemplated hereby have been satisfied; the Registration Statement meets, and the offering and sale of the Shares as contemplated hereby complies with, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5those associated with any sales pursuant to Regulation D under the Securities Act of 1933, as amended (the "1933 Act")); the Prospectus complied or will comply, at the time it was or will be filed with the Commission, and will comply, as then amended or supplemented, as of each Representation Date "blue sky" laws;
(other than b) The Company hereby warrants that the date hereof), in all material respects, with the requirements of the Act; the Registration Statement did not, as of the time of its initial effectivenessOffering Materials, and does any other information relating to the Company or a Placement, will not or will not, as then amended or supplemented, as of each Representation Date, contain an any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein contained therein, in the light of circumstances under which they were made, not misleading; as . The Company agrees to provide RWP with (i) prompt notice of each Representation Date (any material development affecting the Company or the occurrence of any event or other than change known to the date hereof), Company that could result in the Prospectus, as then amended or supplemented, together with all of the then issued Permitted Free Writing Prospectuses, if any, will not contain Offering Materials containing an untrue statement of a material fact or omit omitting to state a any material fact necessary into make the statements contained therein, in the light of the circumstances under which they were made, not misleading, (ii) copies of any financial reports as soon as reasonably practicable and (iii) such other information concerning the business and financial condition of the Company as RWP may from time to time reasonably request. RWP will have the right to approve the Offering Materials and other written communications furnished by or on behalf of the Company in connection with a Placement and/or the Facilities. The Company will comply with Securities and Exchange Commission Regulation FD;
(c) The Company acknowledges that RWP will be using information provided by others, including, without limitation, information provided by or on behalf of the Company, and that RWP does not assume responsibility for and may rely, without independent verification, on the accuracy and completeness of any such information; and
(d) At each closing, you will permit us to rely on the representations and warranties of the Company. The Company will cause to be furnished to RWP and the purchasers of the Securities, on each closing date of a Placement, copies of such opinions of counsel and such other documents, letters, certificates and opinions as RWP or the purchasers may reasonably request in form and substance reasonably satisfactory to RWP and its counsel and the purchasers and their counsel. To the extent the Company's counsel shall deliver a legal opinion in connection with a Placement to the purchasers of the Securities, such opinion shall also be addressed to RWP and be in form and substance satisfactory to the purchasers of the Securities and RWP. Such opinion of counsel will be modified as appropriate to also address any warrants or other securities of the Company issued to us in connection with the Placement and the shares of Common Stock issuable upon exercise of such warrants.
Appears in 1 contract
Samples: Engagement Letter (Bion Environmental Technologies Inc)
Representations, Warranties and Agreements of the Company. Each of the The Company represents and the Operating Partnership, jointly and severally, represent and warrant warrants to, and agree agrees with, DBS, the Initial Purchasers on and as of (i) the date hereof, (ii) each date on which hereof and the Company delivers a Transaction Notice (the “Time of Delivery”) or executes and delivers a Terms Agreement, (iii) each Time of Sale (as defined below), (iv) each Settlement Date and (v) each Bring-Down Delivery Closing Date (as defined in Section 6(b)3) (each such date listed in (i) through (v), a “Representation Date”), as followsthat:
(a) There is no order preventing or suspending the use Each of the Registration Statement, Preliminary Offering Memorandum and the Prospectus or any Permitted Free Writing Prospectus, and, to the knowledge of the Company, no proceeding for that purpose or pursuant to Section 8A of the Act against the Company or related to the offering has been initiated or threatened by the Commission; no notice of objection of the Commission to the use of such Registration Statement pursuant to Rule 401(g)(2) under the Act has been received by the Company; the Registration Statement complied when it initially became effective, complies as of the date hereof and, as then amended or supplementedOffering Memorandum, as of each other Representation Date will complyits respective date, in all material respects, with the requirements of the Act; the conditions to the use of Form S-3ASR in connection with the offering and sale of the Shares as contemplated hereby have been satisfied; the Registration Statement meets, and the offering and sale of the Shares as contemplated hereby complies with, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5)); the Prospectus complied or will comply, at the time it was or will be filed with the Commission, and will comply, as then amended or supplemented, as of each Representation Date (other than the date hereof), in all material respects, with the requirements of the Act; the Registration Statement did not, as of and on the time of its initial effectiveness, and does not or Closing Date the Offering Memorandum will not, as then amended or supplemented, as of each Representation Date, contain an 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 therein, in the light of the circumstances under which they were made, not misleading; provided that the Company makes no representation or warranty as to information contained in or omitted from the Preliminary Offering Memorandum or the Offering Memorandum in reliance upon and in conformity with written information relating to the Initial Purchasers furnished to the Company by or on behalf of any Initial Purchaser specifically for use therein (collectively, the "Initial Purchasers' Information").
(b) Each of the Preliminary Offering Memorandum and the Offering Memorandum, as of each Representation Date (other than the date hereof)its respective date, the Prospectus, as then amended or supplemented, together with contains all of the then issued Permitted Free Writing Prospectusesinformation that, if anyrequested by a prospective purchaser of the Securities, will would be required to be provided to such prospective purchaser pursuant to Rule 144A(d)(4) under the Securities Act.
(c) Assuming the accuracy of the representations and warranties of the Initial Purchasers contained in Section 2 and their compliance with the agreements set forth therein, it is not contain an untrue statement necessary, in connection with the issuance and sale of the Securities to the Initial Purchasers and the offer, resale and delivery of the Securities by the Initial Purchasers in the manner contemplated by this Agreement and the Offering Memorandum, to register the Securities under the Securities Act or to qualify the Indenture under the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act").
(d) The Company and each of its subsidiaries have been duly incorporated and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation, are duly qualified to do business and are in good standing as foreign corporations in each jurisdiction in which their respective ownership or lease of property or the conduct of their respective businesses requires such qualification, and have all power and authority necessary to own or hold their respective properties and to conduct the businesses in which they are engaged, except where the failure to so qualify or have such power or authority would not, singularly or in the aggregate, have a material fact adverse effect on the condition (financial or omit to state otherwise), results of operations, business or prospects of the Company and its subsidiaries taken as a material fact necessary inwhole (a "Material Adverse Effect").
Appears in 1 contract
Samples: Purchase Agreement (Selfix Inc /De/)
Representations, Warranties and Agreements of the Company. Each of the The Company represents and the Operating Partnership, jointly and severally, represent and warrant warrants to, and agree agrees with, DBS, on and as each of (i) the date hereof, (ii) each date on which the Company delivers a Transaction Notice (the “Time of Delivery”) or executes and delivers a Terms Agreement, (iii) each Time of Sale (as defined below), (iv) each Settlement Date and (v) each Bring-Down Delivery Date (as defined in Section 6(b)) (each such date listed in (i) through (v), a “Representation Date”), as followsUnderwriters that:
(a) There is An “automatic shelf registration statement” as defined under Rule 405 under the Securities Act of 1933, as amended (the “Securities Act”), on Form S-3 (File No. 333-155495) in respect of the Securities has been filed with the Securities and Exchange Commission (the “Commission”) not earlier than three years prior to the date of this Agreement; such registration statement, and any post-effective amendment thereto, became effective on filing; no stop order preventing or suspending the use effectiveness of the Registration Statement, the Prospectus such registration statement or any Permitted Free Writing Prospectus, and, to the knowledge of the Company, part thereof has been issued and no proceeding for that purpose or pursuant to Section 8A of the Act against the Company or related to the offering has been initiated or threatened by the Commission; , and no notice of objection of the Commission to the use of such Registration Statement registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act has been received by the Company; the Registration various parts of such registration statement, including all exhibits thereto (other than the Statement complied when it initially of Eligibility and Qualification on Form T-1) and including any prospectus supplement relating to the Securities that is filed with the Commission pursuant to Rule 424(b) under the Securities Act and deemed by Rule 430B under the Securities Act to be part of such registration statement, each as amended at the time such part of the registration statement became effective, complies are hereinafter collectively called the “Registration Statement”; the base prospectus filed as part of the Registration Statement, in the form in which it was most recently filed with the Commission prior to or on the date hereof andof this Agreement, is hereinafter called the “Base Prospectus”; the final prospectus supplement to such prospectus (including the Base Prospectus) relating to the Securities, in the form filed or to be filed with the Commission pursuant to Rule 424(b) under the Securities Act, is hereinafter called the “Prospectus”; any preliminary prospectus (including any preliminary prospectus supplement) relating to the Securities, in the form filed or to be filed with the Commission pursuant to Rule 424(b), is hereinafter called a “Preliminary Prospectus”; the Base Prospectus, as then amended or supplemented, as of each other Representation Date will comply, in all material respects, with the requirements of the Act; the conditions supplemented immediately prior to the use of Form S-3ASR Applicable Time (as defined in connection with the offering and sale of the Shares as contemplated hereby have been satisfied; the Registration Statement meetsSection 1(e) hereof), and the offering and sale of the Shares as contemplated hereby complies with, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5))any Preliminary Prospectus relating to the Securities, is hereinafter called the “Pricing Prospectus”; any reference in this Agreement to the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus complied shall be deemed to refer to and include the documents incorporated by reference therein that were filed under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or will complythe Securities Act, at as the time it was case may be, and the rules and regulations of the Commission thereunder, on or will before the date of this Agreement or the issue date of any such prospectus; any reference to “amend,” “amendment,” “supplement” or similar terms with respect to the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus shall be deemed to refer to and include any documents filed under the Exchange Act or the Securities Act, as the case may be, after the date of this Agreement or the issue date of any such prospectus which are deemed to be incorporated by reference therein; and any “issuer free writing prospectus” (as defined in Rule 433 under the Securities Act) relating to the Securities that (x) is required to be filed with the CommissionCommission by the Company or (y) is exempt from filing pursuant to Rule 433(d)(5)(i) because it contains a description of the Securities or the offering that does not reflect the final terms is hereinafter called an “Issuer Free Writing Prospectus”;
(b) The documents incorporated by reference in the Registration Statement, the Pricing Prospectus and will complythe Prospectus, when they were filed with the Commission or became effective, as then amended or supplementedthe case may be, as of each Representation Date (other than the date hereof), conformed in all material respects, with respects to the requirements of the Exchange Act or the Securities Act, as the case may be, and the rules and regulations of the Commission thereunder; 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 Registration Statement did notStatement, the Pricing Prospectus and the Prospectus, when such documents are filed with the Commission or become effective, as the case may be, will conform in all material respects to the requirements of the time of its initial effectivenessExchange Act or the Securities Act, as applicable, and does the rules and regulations of the Commission thereunder and will not or will not, as then amended or supplemented, as of each Representation Date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made therein in reliance upon and in conformity with information furnished in writing to the Company by an Underwriter through the Representatives expressly for use therein;
(c) The Registration Statement, any Preliminary Prospectus and the Pricing Prospectus conform, and the Prospectus and any post-effective amendments or supplements to the Registration Statement or the Prospectus will conform, in all material respects, to the requirements of the Securities Act and the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and the rules and regulations of the Commission thereunder; and (i) the Registration Statement and any amendment thereto, as of each Representation Date (other than their applicable effective dates relating to the date hereof)Securities, the Prospectus, as then amended or supplemented, together with all of the then issued Permitted Free Writing Prospectuses, if any, did not and will not contain an any untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) any Preliminary Prospectus, the Pricing Prospectus, the Prospectus and any amendment or supplement thereto, as of their issue dates, did not and will not contain any untrue statement of a material fact or omit to state a material fact necessary inin order to make the statements therein, in the light of the circumstances under which they were made, not misleading and (iii) the Prospectus and the Prospectus as amended or supplemented, if applicable, at the Time of Delivery (as defined in Section 2 hereof), 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 this representation and warranty shall not apply to any statements or omissions made therein in reliance upon and in conformity with information furnished in writing to the Company by an Underwriter through the Representatives expressly for use therein;
(d) The Company has been, and continues to be, a “well-known seasoned issuer” (as defined in Rule 405 under the Securities Act), and has not been, and continues not to be, an “ineligible issuer” (as such term is defined in Rule 405 under the Securities Act), in each case as from the earliest time after the filing of the Registration Statement that the Company or another offering participant made a “bona fide” offer (within the meaning of Rule 164(h)(2) under the Securities Act) of the Securities;
(e) As used herein, the “Disclosure Package” means, collectively, (i) the Pricing Prospectus, (ii) the Final Term Sheet prepared and filed pursuant to Section 5(b) hereof and (iii) any other Issuer Free Writing Prospectus that is identified on Schedule III hereto; and the “Applicable Time” means 5:00 p.m. (New York City time) on the date of this Agreement. The Disclosure Package, as of the Applicable Time, did not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and each Issuer Free Writing Prospectus identified on Schedule III hereto does not conflict with the information contained in the Registration Statement, the Pricing Prospectus or the Prospectus; provided, however, that this representation and warranty shall not apply to statements or omissions made therein in reliance upon and in conformity with information furnished in writing to the Company by an Underwriter through the Representatives expressly for use therein;
Appears in 1 contract
Representations, Warranties and Agreements of the Company. Each of the The Company represents and the Operating Partnership, jointly and severally, represent and warrant warrants to, and agree agrees with, DBSthe Underwriter and the Selling Stockholder, on and as of (i) the date hereof, Time of Sale and (ii) each date on which the Company delivers a Transaction Notice (the “Time of Delivery”) or executes and delivers a Terms AgreementClosing Date, (iii) each Time of Sale (as defined below), (iv) each Settlement Date and (v) each Bring-Down Delivery Date (as defined in Section 6(b)) applicable (each such date listed in (i) through and (vii), a “Representation Date”), as follows:
(a) There No order preventing or suspending the use of any Preliminary Prospectus has been issued by the Commission, and each Preliminary Prospectus included in the Pricing Disclosure Package, at the time of filing thereof, complied in all material respects with the Securities Act, and no Preliminary Prospectus, at the time of filing thereof, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company makes no representation and warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to the Underwriter furnished to the Company in writing by the Underwriter expressly for use in any Preliminary Prospectus, it being understood and agreed that the only such information furnished by the Underwriter consists of the information described as such in Section 10(c) hereof. The Pricing Disclosure Package as of the Time of Sale did not, and as of the Closing Date, 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 that the Company makes no representation and warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to the Underwriter furnished to the Company in writing by the Underwriter expressly for use in such Pricing Disclosure Package, it being understood and agreed that the only such information furnished by the Underwriter consists of the information described as such in Section 10(c) hereof. The Registration Statement is an “automatic shelf registration statement” as defined under Rule 405 of the Securities Act that has been filed with the Commission not earlier than three years prior to the date hereof; there is no order preventing or suspending the use of the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus, and, to the knowledge of the Company, no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering has been initiated or threatened by the Commission; no notice of objection of the Commission to the use of such Registration Statement pursuant to Rule 401(g)(2) under the Securities Act has been received by the Company; the Registration Statement complied when it initially became effective, complies as of the date hereof and, as then amended or supplemented, as of each other Representation Date will comply, in all material respects, with the requirements of the Securities Act; the conditions to the use of Form S-3ASR S-3 in connection with the offering and sale of the Shares as contemplated hereby have been satisfied; the Registration Statement meets, and the offering and sale of the Shares as contemplated hereby complies with, the requirements of Rule 415 under the Securities Act (including, without limitation, Rule 415(a)(5)); the Prospectus complied or will comply, at the time it was or will be filed with the Commission, and will comply, as then amended or supplemented, as of each Representation Date (other than the date hereof)Date, in all material respects, with the requirements of the Securities Act; the Registration Statement did not, as of the time of its initial effectiveness, and does not or will not, as then amended or supplemented, as of each Representation Date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; as of each Representation Date (other than the date hereof)Date, the Prospectus, as then amended or supplemented, together with all of the then issued Permitted Free Writing Prospectuses, if any, will not contain an untrue statement of a material fact or omit to state a material fact necessary inin 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 representation or warranty with respect to any statement or omission in the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus in reliance upon and in conformity with information concerning the Underwriter and furnished in writing by or on behalf of the Underwriter expressly for use in the Registration Statement, the Prospectus or such Permitted Free Writing Prospectus (it being understood that such information consists solely of the information specified in Section 10(c)).
(b) Prior to the execution of this Agreement, the Company has not, directly or indirectly, offered or sold any of the Shares by means of any “prospectus” (within the meaning of the Securities Act) or used any “prospectus” (within the meaning of the Securities Act) in connection with the offer or sale of the Shares, in each case other than the Basic Prospectus and the Preliminary Prospectus. The Company represents and agrees that, unless it obtains the prior consent of the Underwriter, it has not made and will not make any offer relating to the Shares that would constitute an “issuer free writing prospectus” (as defined in Rule 433 under the Securities Act) or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under the Securities Act). Any such free writing prospectus relating to the Shares consented to by the Underwriter is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has complied and will comply in all material respects with the requirements of Rule 433 under the Securities Act applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The conditions set forth in one or more of subclauses (i) through (iv), inclusive, of Rule 433(b)(1) under the Securities Act are satisfied, and the registration statement relating to the offering of the Shares contemplated hereby, as initially filed with the Commission, includes a prospectus that, other than by reason of Rule 433 or Rule 431 under the Securities Act, satisfies the requirements of Section 10 of the Securities Act; neither the Company nor the Underwriter is disqualified, by reason of Rule 164(f) or (g) under the Securities Act, from using, in connection with the offer and sale of the Shares, “free writing prospectuses” (as defined in Rule 405 under the Securities Act) pursuant to Rules 164 and 433 under the Securities Act; the Company is not an “ineligible issuer” (as defined in Rule 405 under the Securities Act) as of the eligibility determination date for purposes of Rules 164 and 433 under the Securities Act with respect to the offering of the Shares contemplated by the Registration Statement.
(c) The Incorporated Documents, when they were filed with the Commission, conformed in all material respects to the requirements of the Securities Act or the Exchange Act, as applicable, 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, in light of the circumstances under which they were made, not misleading; and any further documents so filed and incorporated by reference in the Registration Statement, the Pricing Disclosure Package, the Prospectus or any Permitted Free Writing Prospectus, when such documents become effective or are filed with the Commission, as the case may be, will conform in all material respects to the requirements of the Securities Act or the Exchange Act, as applicable, and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(d) The financial statements and the related notes thereto included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package, the Prospectus and any Permitted Free Writing Prospectus comply in all material respects with the applicable requirements of the Securities Act and the Exchange Act, as applicable, and present fairly the financial position of the Company and its consolidated subsidiaries at the dates indicated and their results of operations, stockholders’ equity and cash flows for the periods specified, and such financial statements have been prepared in conformity with the generally accepted accounting principles in the United States (“GAAP”) applied on a consistent basis throughout the periods involved. The other historical financial and statistical information and data included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package, Prospectus or any Permitted Free Writing Prospectus are, in all material respects, fairly presented. The interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Prospectus and the Pricing Disclosure Package fairly present the information called for in all material respects and have been prepared in accordance with the Commission’s rules and guidelines applicable thereto.
(e) Except in each case as otherwise disclosed in the Registration Statement, the Pricing Disclosure Package, the Prospectus or any Permitted Free Writing Prospectus, since the date of the most recent financial statements of the Company included or incorporated by reference in the Registration Statement, the Pricing
Appears in 1 contract
Representations, Warranties and Agreements of the Company. Each of the The Company represents and the Operating Partnership, jointly and severally, represent and warrant warrants to, and agree agrees with, DBS, on and as of the several Underwriters that:
(i) (i) At the date hereoftime of the most recent amendment to the Registration Statement for the purposes of complying with Section 10(a)(3) of the Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act, or form of prospectus) and (ii) each date on which at the time the Company delivers or any person acting on its behalf (within the meaning of Rule 163(c) solely for purposes of this clause) made any offer relating to the Securities in reliance on the exemption of Rule 163, the Company was a Transaction Notice (the “Time of Delivery”) or executes and delivers a Terms Agreement, (iii) each Time of Sale (as defined below), (iv) each Settlement Date and (v) each Bringwell-Down Delivery Date known seasoned issuer” (as defined in Section 6(bRule 405)) (each such date listed in (i) through (v), a “Representation Date”), as follows:.
(aj) There The Company is no order preventing or suspending permitted to use Form S-3 under the use of Act and has filed the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus, and, Statement on such form not earlier than three years prior to the knowledge date of this Agreement, which has become effective, for the registration under the Act of specified securities of the Company, no proceeding for that purpose or pursuant to Section 8A of including the Act against the Company or related to the offering has been initiated or threatened by the CommissionSecurities; and no notice of objection of the Commission to the use of such Registration Statement registration statement pursuant to Rule 401(g)(2) under the Act has been received by the Company; the . The Registration Statement complied when it initially became effective, meets the requirements set forth in Rule 415(a)(1)(x) and complies in all other material respects with such Rule and as of the applicable effective date hereof and, as then amended or supplemented, as of each other Representation Date will comply, in all material respects, with the requirements of the Act; the conditions to the use of Form S-3ASR in connection with the offering and sale of the Shares as contemplated hereby have been satisfied; the Registration Statement meetsStatement, and the offering and sale of the Shares as contemplated hereby complies with, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5)); the Prospectus complied or will comply, at the time it was or will be filed with the Commission, and will comply, as then amended or supplemented, as of each Representation Date (other than the date hereof), in all material respects, with the requirements of the Act; the Registration Statement did not, as of the time of its initial effectiveness, not and does will not or will not, as then amended or supplemented, as of each Representation Date, contain an any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; . The preceding sentence does not apply to statements in or omissions from the Registration Statement in reliance upon and in conformity with written information furnished to the Company by any Underwriter through the Representatives specifically for use therein, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in Section 8(b) below.
(k) The Registration Statement, the Statutory Prospectus, the Prospectus and the Indenture comply in all material respects with the applicable requirements of the Act, the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and the Exchange Act and the respective rules and regulations thereunder. The Indenture has been duly qualified under the Trust Indenture Act.
(l) At the time of the filing of the Registration Statement, at the earliest time after the filing of the Registration Statement that the Company or another offering participant made a “bona fide offer” (within the meaning of Rule 164(h)(2)) of the Securities and as of each Representation Date (other than the date hereof, the Company was not and is not an “ineligible issuer” (as defined in Rule 405); and in the preceding three years, neither the Company nor any of its Significant Subsidiaries nor, to the knowledge of the Company, any of its other subsidiaries has been convicted of a felony or misdemeanor or has been made the subject of a judicial or administrative decree or order, each as described in Rule 405, and the Company has not been the subject of a bankruptcy petition or insolvency or similar proceeding or had a registration statement be the subject of a proceeding under Section 8 of the Act in connection with an offering, as described in Rule 405.
(i) At the time of filing, the Statutory Prospectus did not contain, (ii) as of the Applicable Time and the Closing Date (as defined herein), neither (1) the General Use Issuer Free Writing Prospectus(es) issued at or prior to the Applicable Time (together with the Statutory Prospectus, the “General Disclosure Package”), nor (2) any individual Limited Use Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, contained or will contain and (iii) as of the date of the Prospectus, the date of any amendment or supplement thereto and as then amended or supplemented, together with all of the then issued Permitted Free Writing ProspectusesClosing Date, if any, the Prospectus will not contain an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from any prospectus included in the Registration Statement or any Issuer Free Writing Prospectus in reliance upon and in conformity with written information furnished to the Company by any Underwriter through the Representatives specifically for use therein, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in Section 8(b) below.
(f) Each Issuer Free Writing Prospectus, as of its issue date and at all subsequent times through the completion of the public offer and sale of the Securities or until any earlier date that the Company notified or notifies the Representatives as described in the next sentence, did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement. If at any time following issuance of an Issuer Free Writing Prospectus, there occurred or occurs a material event or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement or included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary inin order to make the statements therein, in the light of the circumstances prevailing at that subsequent time, not misleading, (1) the Company has promptly notified or will promptly notify the Representatives and (2) the Company has promptly amended or will promptly amend or supplement such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission.
(n) The Company has been duly incorporated and is an existing corporation in good standing under the laws of the State of New York, with power and authority (corporate and other) to own its properties and conduct its business as described in the General Disclosure Package and the Prospectus; and the Company is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, except where the failure to be so qualified would not reasonably be expected to, individually or in the aggregate, have a material adverse effect on the condition (financial or other), business, properties or results of operations of the Company and its subsidiaries taken as a whole (a “Material Adverse Effect”).
(o) Each Significant Subsidiary of the Company has been duly incorporated and is an existing company in good standing under the laws of the jurisdiction of its organization, with power and authority (corporate and other) to own its properties and conduct its business as described in the General Disclosure Package and the Prospectus; each Significant Subsidiary is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, except where the failure to be so qualified would not reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect; all of the issued and outstanding capital stock of each Significant Subsidiary has been duly authorized and validly issued and is fully paid and non-assessable; and the capital stock of each Significant Subsidiary owned by the Company, directly or through subsidiaries, is owned free from liens, encumbrances and defects.
(i) All outstanding shares of capital stock of the Company have been duly authorized and validly issued, fully paid and are non-assessable and free of statutory and contractual preemptive rights.
(p) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required to be obtained or made by the Company for the consummation of the transactions contemplated by this Agreement in connection with the sale of the Securities, except such as have been obtained and made under the Act and such as may be required under federal and state securities laws.
(q) The execution, delivery and performance of this Agreement, the Indenture, the Officers’ Certificate (as defined herein) and the issuance and sale of the Securities and the consummation of the transactions herein and therein contemplated will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, (1) any statute, any rule, regulation or order of any governmental agency or body or any court (domestic or foreign) having jurisdiction over the Company or any subsidiary of the Company or any of their properties, (2) any agreement or instrument to which the Company or any such subsidiary is a party or by which the Company or any such subsidiary is bound or to which any of the properties of the Company or any such subsidiary is subject, or (3) the charter or by-laws of the Company or any such subsidiary, except, in the case of clauses (1) and (2) above, for any breach, default or violation that would not reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect.
(r) This Agreement has been duly authorized, executed and delivered by the Company.
(s) The Indenture has been duly authorized, executed and delivered by the Company and is a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, and by general principles of equity. The Officers’ Certificate establishing the terms of the Securities, to be dated as of the Closing Date (the “Officers’ Certificate”), has been duly authorized by the Company and, when executed and delivered by the Company, will constitute a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, and by general principles of equity.
(t) The Securities have been duly authorized by the Company and when executed and delivered by the Company and paid for in accordance with this Agreement and assuming due authentication and delivery by the Trustee, will constitute legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, and by general principles of equity and will be entitled to the benefits of the Indenture.
Appears in 1 contract
Samples: Underwriting Agreement (Avnet Inc)
Representations, Warranties and Agreements of the Company. Each of the The Company represents and the Operating Partnership, jointly and severally, represent and warrant warrants to, and agree agrees with, DBS, on and as each of (i) the date hereof, (ii) each date on which the Company delivers a Transaction Notice (the “Time of Delivery”) or executes and delivers a Terms Agreement, (iii) each Time of Sale (as defined below), (iv) each Settlement Date and (v) each Bring-Down Delivery Date (as defined in Section 6(b)) (each such date listed in (i) through (v), a “Representation Date”), as followsUnderwriters that:
(a) There is A registration statement in respect of the Securities (File No. 333-126512) has been filed with the Securities and Exchange Commission (the “Commission”); such registration statement and any post-effective amendments thereto, each in the form heretofore delivered or to be delivered to the Representatives and, excluding exhibits to such registration statement but including all documents incorporated by reference in each prospectus contained therein, delivered to the Representatives for each of the other Underwriters has been declared effective by the Commission in such form; no other document with respect to such registration statement or document incorporated by reference therein has heretofore been filed or transmitted for filing with the Commission; and no stop order preventing or suspending the use effectiveness of the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus, and, to the knowledge of the Company, such registration statement has been issued and no proceeding for that purpose or pursuant to Section 8A of the Act against the Company or related to the offering has been initiated or threatened by the Commission; no notice Commission (any preliminary prospectus included in such registration statement or filed with the Commission pursuant to Rule 424(a) of objection the rules and regulations of the Commission to under the use Securities Act of 1933, as amended (the “Act”), being hereinafter called a “Preliminary Prospectus”); the various parts of such Registration Statement registration statement, including all exhibits thereto (other than the Form T-1 of X.X. Xxxxxx Trust Company, National Association), the documents incorporated by reference in the prospectus contained in the registration statement at the time such part of the registration statement became effective and any related abbreviated registration statement filed by the Company pursuant to Rule 401(g)(2462(b) under the Securities Act, each as amended at the time such part of the registration statement became effective, being hereinafter called the “Registration Statement”; each prospectus relating to the Securities, in the form in which it has most recently been filed, or transmitted for filing, with the Commission on or prior to the date of this Agreement, being hereinafter called the “Prospectus”; any reference herein to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to the applicable form under the Act, as of the date of such Preliminary Prospectus or Prospectus, as the case may be; any reference to any amendment or supplement to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any documents filed after the date of such Preliminary Prospectus or the Prospectus, as the case may be, under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and incorporated by reference in such Preliminary Prospectus or Prospectus, as the case may be; any reference to any amendment to the Registration Statement shall be deemed to refer to and include any annual report of the Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act after the applicable effective date of the Registration Statement that is incorporated by reference in the Registration Statement; and any reference to the “Prospectus as amended or supplemented” shall be deemed to refer to the Prospectus as amended or supplemented in relation to the applicable Designated Securities in the form in which it is filed with the Commission pursuant to Rule 424(b) under the Act has been received in accordance with Section 5(a) hereof, including any documents incorporated by the Company; the Registration Statement complied when it initially became effective, complies reference therein as of the date hereof and, as then amended or supplemented, as of each other Representation Date will comply, such filing;
(b) The documents incorporated by reference in all material respects, with the requirements of the Act; the conditions to the use of Form S-3ASR in connection with the offering and sale of the Shares as contemplated hereby have been satisfied; the Registration Statement meets, and the offering and sale of the Shares as contemplated hereby complies with, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5)); the Prospectus complied or will complyany amendment or supplement thereto, at the time it was when they became effective or will be were filed with the Commission, as the case may be, conformed in all material respects to the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder, 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 or any further amendment or supplement thereto, when such documents become effective or are filed with the Commission, as the case may be, will conform in all material respects to the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder and will complynot contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by an Underwriter of Designated Securities through the Representatives expressly for use in the Prospectus as then amended or supplemented;
(c) The Registration Statement and the Prospectus and any amendment or supplement thereto conform, as of each Representation Date (other than and any further amendments or supplements to the date hereof)Registration Statement or the Prospectus will conform, in all material respects, with respects to the requirements of the Act and the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act; ”) and the Registration Statement did rules and regulations of the Commission thereunder and do not and will not, as of the time of its initial effectiveness, applicable effective dates as to the Registration Statement and does not or will not, as then amended or supplemented, any post-effective amendments thereto and as of each Representation Datethe applicable filing date as to the Prospectus and any amendment or supplement thereto, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by an Underwriter of Designated Securities through the Representatives expressly for use in the Prospectus as amended or supplemented;
(d) Neither the Company nor any of its subsidiaries has sustained since the date of the latest audited financial statements included or incorporated by reference in the Prospectus any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus; and, since the respective dates as of which information is given in the Registration Statement and the Prospectus, there has not been any material change in the capital stock or long-term debt of the Company and its subsidiaries or any material adverse change, or any development involving a prospective material adverse change, in or affecting the general affairs, management, financial position, shareholders’ equity, results of operations or internal control over financial reporting of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Prospectus as amended or supplemented prior to the date of the applicable Pricing Agreement;
(e) The Company and its subsidiaries have good and marketable title in fee simple to all real property and good and marketable title to all personal property owned by them, in each Representation Date case free and clear of all liens, encumbrances and defects except such as are described in the Prospectus or such as do not individually or in the aggregate materially affect the consolidated financial position, shareholders’ equity or results of operation of the Company and its subsidiaries and do not interfere with the use made and proposed to be made of such property by the Company and its subsidiaries; and any real property and buildings held under lease by the Company and its subsidiaries are held by them under valid, subsisting and enforceable leases with such exceptions as are not material and do not interfere with the use made and proposed to be made of such property and buildings by the Company and its subsidiaries in any material respect;
(f) The Company and its subsidiaries own or possess, or can acquire on reasonable terms, adequate trademarks, service marks and trade names necessary to conduct the business now operated by them, and neither the Company nor any of its subsidiaries has received any notice of infringement of or conflict with asserted rights of others with respect to any trademarks, service marks or trade names that, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially adversely affect the conduct of the business, operations, financial condition or income of the Company and its subsidiaries considered as one enterprise;
(g) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, with power and authority (corporate and other) to own its properties and conduct its business as described in the Prospectus, and has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties, or conducts any business, so as to require such qualification, or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction; and each subsidiary of the Company has been duly incorporated or organized and is validly existing in good standing under the laws of its jurisdiction of incorporation or organization;
(h) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and nonassessable, and all of the issued shares of capital stock of each subsidiary of the Company have been duly and validly authorized and issued, are fully paid and nonassessable and (except for directors’ qualifying shares, except that the Company holds approximately 62.40% of issued and outstanding shares of Wal-Mart de Mexico, S.A. de C.V. as of the date hereof, except for 122 shares of the capital stock of Wal-Mart Real Estate Business Trust owned by persons other than the date hereof)Company, which shares in the aggregate do not constitute more than 4.00% of the issued and outstanding shares of Wal-Mart Real Estate Business Trust, and except as otherwise set forth in the Prospectus) are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(i) The Designated Securities have been duly authorized, and, when such Designated Securities are issued and delivered pursuant to this Agreement and the applicable Pricing Agreement, such Designated Securities will have been duly executed, authenticated, issued and delivered and will constitute valid and legally binding obligations of the Company entitled to the benefits provided by the Indenture, which will be substantially in the form filed as an exhibit to the Registration Statement; the Indenture has been duly authorized and duly qualified under the Trust Indenture Act and, at the Time of Delivery for the Designated Securities, such Indenture will constitute a valid and legally binding instrument, enforceable in accordance with its terms, subject, as then to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles; and the Indenture conforms, and the Designated Securities will conform, to the descriptions thereof contained in the Prospectus as amended or supplemented, together ;
(j) The issue and sale of the Designated Securities and the compliance by the Company with all of the then issued Permitted Free Writing Prospectusesprovisions of the Securities, the Indenture, this Agreement and each Pricing Agreement, and the consummation of the transactions herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject, nor will such action result in any violation of the provisions of the Restated Certificate of Incorporation or Amended and Restated Bylaws of the Company, each as amended to date, or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or any of their properties; and no consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the issue and sale of the Designated Securities or the consummation by the Company of the transactions contemplated by this Agreement or each Pricing Agreement or the Indenture, except (i) such as have been, or will have been prior to the Time of Delivery, obtained under the Act and the Trust Indenture Act, (ii) such, if any, as have been, or will not contain an untrue statement have been prior to the Time of Delivery, obtained under securities laws and regulations of the European Union or any foreign country to which the Company is, has or will become subject due to actions taken, or omitted, by the Company or by the Underwriters with the knowledge of the Company and (iii) such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Designated Securities by the Underwriters;
(k) Other than as set forth in the Prospectus or any amendment or supplement thereto, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject that, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material fact adverse effect on the consolidated financial position, shareholders’ equity or omit results of operations of the Company and its subsidiaries; and, to state a material fact necessary inthe best of the Company’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or others; and
(l) Ernst & Young LLP, which has audited and reported on certain financial statements of the Company and its subsidiaries and the Company’s internal control over financial reporting and management’s assessment thereof, is, to the best knowledge of the Company, an independent registered public accounting firm with respect to the Company and its subsidiaries within the meaning of Rule 101 of the Code of Professional Conduct of the American Institute of Certified Public Accountants and its interpretations and rulings thereunder.
Appears in 1 contract
Representations, Warranties and Agreements of the Company. Each of the The Company represents and the Operating Partnership, jointly and severally, represent and warrant towarrants to you, and agree withagrees with you, DBS, on and as of (i) the date hereof, (ii) each date on which the Company delivers a Transaction Notice (the “Time of Delivery”) or executes and delivers a Terms Agreement, (iii) each Time of Sale (as defined below), (iv) each Settlement Date and (v) each Bring-Down Delivery Date (as defined in Section 6(b)) (each such date listed in (i) through (v), a “Representation Date”), as followsthat:
(a) There is no The Registration Statement, including the Prospectus, has been prepared by the Company in conformity with the requirements of the Securities Act and the Rules and Regulations of the Commission thereunder and has been filed with the Commission; such amendments to such Registration Statement and Prospectus and such abbreviated registration statements pursuant to Rule 462(b) of the Rules and Regulations as may have been required prior to the date hereof have been similarly prepared and filed with the Commission; and the Company will file such additional amendments to such Registration Statement and Prospectus and such abbreviated registration statements as may hereafter be required. Copies of such Registration Statement and Prospectus, including all amendments thereto and all documents incorporated by reference therein, and of any abbreviated registration statement pursuant to Rule 462(b) of the Rules and Regulations have been or, if filed will be, delivered to you and your counsel.
(b) The Commission has not issued any order refusing or suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Prospectus or instituted proceedings for that purpose; the Prospectus, including the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus, and, to the knowledge of the Company, no proceeding for that purpose or pursuant to Section 8A of the Act against the Company or related to the offering has been initiated or threatened by the Commission; no notice of objection of the Commission to the use of such Registration Statement pursuant to Rule 401(g)(2) under the Act has been received by the Company; the Registration Statement complied when it initially became effective, complies as of the date hereof and, as then amended or supplemented, as of each other Representation Date if applicable, will comply, comply in all material respects, respects with the requirements Securities Act, the Exchange Act and the TIA, and the applicable Rules and Regulations of the Act; the conditions to the use of Form S-3ASR in connection with the offering and sale of the Shares as contemplated hereby have been satisfiedCommission thereunder; the Registration Statement meetsStatement, when it became effective, did not contain and the offering and sale of the Shares as contemplated hereby complies with, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5)); the Prospectus complied or will comply, at the time it was or will be filed with the Commission, and will comply, as then amended or supplemented, as of each Representation Date (other than the date hereof)if applicable, in all material respectswill not contain, with the requirements of the Act; the Registration Statement did not, as of the time of its initial effectiveness, and does not or will not, as then amended or supplemented, as of each Representation Date, contain an any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; as of each Representation Date (other than and neither the date hereof)Prospectus nor the Registration Statement contains, the Prospectusand, as then amended or supplemented, together with all of the then issued Permitted Free Writing Prospectuses, if anyapplicable, will not contain an any untrue statement of a material fact or omit to state a material fact necessary into make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that none of the representations and warranties contained in this subparagraph (b) shall apply to information contained in or omitted from the Registration Statement or Prospectus, or any amendment or supplement thereto, in reliance upon, and in conformity with, written information relating to you furnished to the Company by you specifically for use in the preparation thereof. The Incorporated Documents heretofore filed, when they were filed (or, if any amendment with respect to any such document was filed, when such amendment was filed), conformed in all material respects with the requirements of the Exchange Act and the Rules and Regulations of the Commission thereunder; no such document when it was filed (or, if an amendment with respect to any such document was filed, when such amendment was filed), contained any untrue statement of a material fact or omitted to state a material fact required to be
Appears in 1 contract
Representations, Warranties and Agreements of the Company. Each As of the Company and the Operating Partnership, jointly and severally, represent and warrant to, and agree with, DBS, on and as of (i) the date hereof, (ii) each date on which the Company delivers a Transaction Notice (represents and warrants to, and agrees with, the “Time of Delivery”) or executes and delivers a Terms Agreement, (iii) each Time of Sale (as defined below), (iv) each Settlement Date and (v) each Bring-Down Delivery Date (as defined in Section 6(b)) (each such date listed in (i) through (v), a “Representation Date”), as followsInitial Purchaser that:
(a) There is no order preventing or suspending The Preliminary Offering Memorandum and the use of the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus, and, to the knowledge of the Company, no proceeding for that purpose or pursuant to Section 8A of the Act against the Company or related to the offering has been initiated or threatened by the Commission; no notice of objection of the Commission to the use of such Registration Statement pursuant to Rule 401(g)(2) under the Act has been received by the Company; the Registration Statement complied when it initially became effective, complies as of the date hereof and, as then amended or supplemented, as of each other Representation Date will comply, in all material respects, with the requirements of the Act; the conditions to the use of Form S-3ASR in connection with the offering and sale of the Shares as contemplated hereby have been satisfied; the Registration Statement meetsOffering Memorandum do not, and the offering and sale of the Shares as contemplated hereby complies with, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5)); the Prospectus complied any supplement or will comply, at the time it was or will be filed with the Commission, and will comply, as then amended or supplemented, as of each Representation Date (other than the date hereof), in all material respects, with the requirements of the Act; the Registration Statement did not, as of the time of its initial effectiveness, and does not or amendment to them will not, as then amended or supplemented, as of each Representation Date, contain an any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading; , except that the representations and warranties contained in this paragraph (a) shall not apply to statements in or omissions from the Preliminary Offering Memorandum or the Offering Memorandum (or any supplement or amendment thereto) based upon information relating to the Initial Purchaser furnished to the Company in writing by the Initial Purchaser expressly for use therein. No stop order preventing the use of the Preliminary Offering Memorandum or the Offering Memorandum, or any amendment or supplement thereto, or any order asserting that any of the transactions contemplated by this Agreement are subject to the registration requirements of the Act, has been issued.
(b) The Company and its subsidiaries has been duly incorporated, is validly existing as a corporation or limited liability company in good standing under the laws of its jurisdiction of incorporation or formation and has the corporate or limited liability company power and authority to carry on its business as described in the Preliminary Offering Memorandum and the Offering Memorandum and to own, lease and operate its properties, and each Representation Date is duly qualified and is in good standing as a foreign corporation or entity authorized to do business in each jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the business, prospects, financial condition or results of operations of the Company and its subsidiaries, taken as a whole (other than the date hereofa "MATERIAL ADVERSE Effect"), as the Prospectus, as then amended or supplemented, together with all case may be. Each of the then issued Permitted Free Writing Prospectusessubsidiaries of the Company listed on Schedule B hereto (the "SUBSIDIARIES"), if any, will not contain an untrue statement of a material fact or omit to state a material fact necessary inwhich
Appears in 1 contract
Samples: Purchase Agreement (R&b Falcon Corp)
Representations, Warranties and Agreements of the Company. Each of the The Company represents and the Operating Partnership, jointly and severally, represent and warrant warrants to, and agree agrees with, DBSeach of the Agents, on and as of (i) the date hereof, (ii) each date on which the Company delivers receives a Transaction Notice Acceptance (the “Time of DeliveryAcceptance”), (iii) or each date on which the Company executes and delivers a Terms Agreement, (iiiiv) each Time of Sale (as defined belowin Section 3(a)), (ivv) each Settlement Date and (vvi) each Bring-Down Delivery Date (as defined in Section 6(b)) (each such date listed in (i) through (vvi), a “Representation Date”), as follows:
(a) There The Registration Statement was declared effective by the Commission not earlier than three years prior to the date hereof; there is no order preventing or suspending the use of the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus, and, to the knowledge of the Company, no proceeding for that purpose or pursuant to Section 8A of the Act against the Company or related to the offering of the Shares has been initiated or threatened by the Commission; no notice of objection of the Commission to the use of such Registration Statement pursuant to Rule 401(g)(2) under the Act has been received by the Company; the Registration Statement complied when it was initially declared or became effective, complies as of the date hereof and, as then amended or supplemented, as of each other Representation Date will comply, in all material respects, with the requirements of the Act; the conditions to the use of Form S-3ASR S-3 in connection with the offering and sale of the Shares as contemplated hereby have been satisfied; the Registration Statement meets, and the offering and sale of the Shares as contemplated hereby complies comply with, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5)); the Prospectus complied or will comply, at the time it was or will be filed with the Commission, and will comply, as then amended or supplemented, as of each Representation Date (other than the date hereof)Date, in all material respects, respects with the requirements of the Act; the Registration Statement and any post-effective amendment thereto did not, as of the time of its initial effectiveness, not and does not or will not, as then amended or supplemented, as of each Representation Date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; as of each Representation Date (other than the date hereof), the Prospectus, as then amended or supplemented, together with all of the then issued Permitted Free Writing Prospectuses, if any, will not contain an untrue statement of a material fact or omit to state a material fact necessary inwill
Appears in 1 contract
Representations, Warranties and Agreements of the Company. Each of the (a) The Company represents and the Operating Partnership, jointly and severally, represent and warrant warrants to, and agree agrees with, DBS, on and as of (i) the date hereof, (ii) each date on which the Company delivers a Transaction Notice (the “Time of Delivery”) or executes and delivers a Terms Agreement, (iii) each Time of Sale (as defined below), (iv) each Settlement Date and (v) each Bring-Down Delivery Date (as defined in Section 6(b)) (each such date listed in (i) through (v), a “Representation Date”), as follows:
(a) There is no order preventing or suspending the use of the Registration StatementUnderwriters that, the Prospectus or any Permitted Free Writing Prospectus, and, to the knowledge of the Company, no proceeding for that purpose or pursuant to Section 8A of the Act against the Company or related to the offering has been initiated or threatened by the Commission; no notice of objection of the Commission to the use of such Registration Statement pursuant to Rule 401(g)(2) under the Act has been received by the Company; the Registration Statement complied when it initially became effective, complies as of the date hereof and, as then amended or supplemented, and as of the Closing Date and each other Representation Date will complyOption Closing Date, if any:
(i) The Company has carefully prepared, pursuant to and in all material respects, conformity with the requirements of the Securities Act of 1933, as amended (the "1933 Act; "), and the conditions rules and regulations promulgated thereunder (the "1933 Act Rules and Regulations") by the Securities and Exchange Commission (the "SEC"), and has filed with the SEC a registration statement on Form S-3 (File No. 333-109306) which has been declared effective, including a prospectus relating to common stock, common stock warrants, preferred stock and debt securities of the Company, for registration of the Shares under the 1933 Act and the offering thereof from time to time in accordance with Rule 415 of the 1933 Act Rules and Regulations. The Company and the offering of the Shares in the registration statement meet the requirements for use of Form S-3ASR in connection with the offering and sale of the Shares as contemplated hereby have been satisfied; the Registration Statement meets, and the offering and sale of the Shares as contemplated hereby complies with, the requirements of Rule 415 S-3 under the Act (including, without limitation, Rule 415(a)(5)); 1933 Act. The documents incorporated by reference in the Prospectus complied or will complypursuant to Item 12 of Form S-3 under the 1933 Act, at the time it was or will be they were filed with the CommissionSEC, and will comply, as then amended or supplemented, as of each Representation Date (other than the date hereof), complied in all material respects, respects with the requirements of the Act; the Registration Statement did notSecurities Exchange Act of 1934, as of amended (the time of its initial effectiveness"1934 Act"), and does not or will notthe rules and regulations promulgated thereunder (the "1934 Act Rules and Regulations") and none of such documents, as then amended or supplementedwhen they were filed with the SEC, as of each Representation Date, contain contained an untrue statement of a material fact or omit omitted to state a material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading; as of each Representation Date (other than the date hereof), and any further documents so filed and incorporated by reference in the Prospectus, as then amended or supplementedwhen such documents are filed with SEC, together with will conform in all material respects to the requirements of the then issued Permitted Free Writing Prospectuses, if any, 1934 Act and the 1934 Act Rules and Regulations and will not contain an untrue statement of a material fact or omit to state a material fact necessary into make the statements therein, in light of the circumstances under which they were made, not misleading. Such registration statement (and any further registration statements that may be filed by the Company for the purpose of registering additional shares of Common Stock and in connection with which this Agreement is included or incorporated therein by reference as an exhibit) including all documents incorporated therein by reference, as from time to time amended or supplemented by the filing of documents pursuant to the 1934 Act, the 1933 Act or otherwise, are referred to herein as the "Registration Statement." The term "Registration Statement" also means the registration statement as amended by a post-effective amendment and includes any abbreviated registration statement prepared and filed with the SEC in accordance with Rule 462(b) under the 1933 Act (an "Abbreviated Registration Statement"). The time at which the Registration Statement became effective is referred to herein as the "Effective Date." The Company proposes to prepare and file with the SEC, pursuant to Rule 424 under the 1933 Act, a supplement to the prospectus (the "Prospectus Supplement") included in the Registration Statement that will describe the issuances of the Shares pursuant to this Agreement, the sale and plan of distribution of the Shares and additional information concerning the Company and its business. The Company may, from time to time, prepare and file with the SEC, pursuant to Rule 430 or 430A under the 1933 Act Rules and Regulations a preliminary Prospectus Supplement (each a "Preliminary Prospectus") containing the prospectus included as part of the Registration Statement, as supplemented by a preliminary Prospectus Supplement, and including the documents
Appears in 1 contract
Samples: Underwriting Agreement (Healthcare Realty Trust Inc)
Representations, Warranties and Agreements of the Company. Each of the The Company represents and the Operating Partnership, jointly and severally, represent and warrant to, and agree with, DBS, on warrants (at and as of (i) the date hereof, (ii) each date on which hereof and at and as of the Company delivers a Transaction Notice (the “Time of Delivery”) or executes and delivers a Terms Agreement, (iii) each Time of Sale (as defined below), (iv) each Settlement Date and (v) each Bring-Down Delivery Closing Date (as defined in Section 6(b5 hereof)) (each such date listed in (i) through (v)to, a “Representation Date”)and agrees with, as followsthe Underwriter that:
(a) There A registration statement on Form S-3 (File No. 333-83436) in respect of the Shares has been filed with the Securities and Exchange Commission (the "Commission"); such registration statement and any post-effective amendment thereto, each in the form heretofore delivered to the Underwriter, has been declared effective by the Commission in such form; no other document with respect to such registration statement (or document incorporated by reference therein) has heretofore been filed with the Commission; no stop order suspending the effectiveness of such registration statement or any post-effective amendment thereto has been issued and no proceeding for that purpose has been initiated or threatened by the Commission (any preliminary prospectus included in such registration statement or filed with the Commission pursuant to Rule 424(a) of the rules and regulations of the Commission under the Securities Act of 1933, as amended (the "Act"), being hereinafter called a "Preliminary Prospectus"); the various parts of such registration statement, including all exhibits thereto and including (i) the documents incorporated by reference in the prospectus contained in the registration statement at the time such part of the registration statement became effective, each as amended at the time such part of the registration statement became effective, and (ii) any post-effective amendment or amendments of the registration statement filed pursuant to Rule 462 under the Act, being hereinafter called the "Registration Statement"; the prospectus, in the form in which it has most recently been filed, or transmitted for filing with the Commission prior to or on the date hereof under the Act, being hereinafter called the "Prospectus"; any reference herein to any Preliminary Prospectus or Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the Act, as of the date of such Preliminary Prospectus or Prospectus, as the case may be; any reference to any amendment or supplement to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any 1 document filed after the date of such Preliminary Prospectus or Prospectus, as the case may be, under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and incorporated by reference in such Preliminary Prospectus or Prospectus, as the case may be; any reference to any amendment to the Registration Statement shall be deemed to refer to and include any annual report of the Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act after the effective date of the Registration Statement that is no incorporated by reference in the Registration Statement and any reference to the Prospectus as amended or supplemented shall be deemed to refer to the Prospectus as amended or supplemented in relation to the Shares in the form in which it is filed with the Commission pursuant to Rule 424(b) under the Act in accordance with Section 6(a) hereof, including any documents incorporated by reference therein as of the date of such filing;
(b) No order preventing or suspending the use of the Registration Statement, any Preliminary Prospectus or the Prospectus or any Permitted Free Writing has been issued by the Commission, and each Preliminary Prospectus and the Prospectus, andat the time of filing thereof, conformed in all material respects to the knowledge of the Company, no proceeding for that purpose or pursuant to Section 8A requirements of the Act against and the Company or related to the offering has been initiated or threatened by the Commission; no notice of objection rules and regulations of the Commission thereunder, and did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by the Underwriter or by any Selling Stockholder expressly for use of such therein;
(c) The Registration Statement pursuant conforms, and the Prospectus and any further amendments or supplements to Rule 401(g)(2) under the Act has been received by the Company; the Registration Statement complied when it initially became effective, complies as of or the date hereof and, as then amended or supplemented, as of each other Representation Date Prospectus will complyconform, in all material respects, with respects to the requirements of the Act; Act and the conditions to the use of Form S-3ASR in connection with the offering rules and sale regulations of the Shares as contemplated hereby have been satisfied; the Registration Statement meets, Commission thereunder and the offering and sale of the Shares as contemplated hereby complies with, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5)); the Prospectus complied or will comply, at the time it was or will be filed with the Commission, do not and will comply, as then amended or supplemented, as of each Representation Date (other than the date hereof), in all material respects, with the requirements of the Act; the Registration Statement did not, as of the time of its initial effectiveness, applicable effective date as to the Registration Statement and does not or will not, as then amended or supplemented, any amendment thereto and as of each Representation Datethe applicable filing date as to the Prospectus and any amendment or supplement thereto, 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; as of each Representation Date provided, however, that this representation and warranty shall not apply to any statement or omissions made in reliance upon and in conformity with information furnished in writing to the Company by the Underwriter or by any Selling Stockholder expressly for use therein;
(other than the date hereof), d) The documents incorporated by reference in the Prospectus, when they became effective or were filed with Commission, as then amended or supplementedthe case may be, together with conformed in all material respects to the requirements of the then issued Permitted Free Writing ProspectusesAct or the Exchange Act, if anyas applicable, and the rules and regulations of the Commission thereunder, 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 or any further amendment or supplement thereto, when such documents become effective or are filed with Commission, as the case may be, will conform in all material respects to the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the 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 statements therein not misleading;
(e) Since the date of the latest audited financial statements included or incorporated by reference in the Prospectus, neither the Company nor any of its subsidiaries has sustained any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus; and, since the respective dates as of which information is given in the Registration Statement and the Prospectus, there has not been any change in the capital stock (other than shares of Common Stock repurchased by the Company under its previously announced stock repurchase program and shares issued or issuable pursuant to employee and director stock option plans, the director compensation plan and employee stock purchase plans, in each case as in effect on the date hereof) or any increase in excess of $150 million in the aggregate in the consolidated long-term debt of the Company and its subsidiaries or any material adverse change, or any development involving a prospective material adverse change, in or affecting the general affairs, business, management, financial position, stockholders' equity or results of operations of the Company and its subsidiaries taken as a whole, otherwise than as set forth or contemplated in the Prospectus;
(f) The Company and its subsidiaries have good and marketable title in fee simple to all real property and good and marketable title to all personal property owned by them, in each case free and clear of all liens, encumbrances and defects except such as are described in the Prospectus or such as would not and do not have, either individually or in the aggregate, any material adverse effect on the general affairs, business, management, financial position, stockholders' equity or results of operations of the Company and its subsidiaries taken as a whole; and any real property and buildings held under lease by the Company and its subsidiaries are held by them under valid, subsisting and enforceable leases with such exceptions as would not and do not have, either individually or in the aggregate, any material adverse effect on the general affairs, business, management, financial position, stockholders' equity or results of operations of the Company and its subsidiaries taken as a whole;
(g) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Nevada, with power and authority (corporate and other) to own its properties and conduct its business as described in the Prospectus, and has been duly qualified as a foreign corporation for transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties, or conducts any business, so as to require such qualification, or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction; each of the Company's subsidiaries that is a corporation has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of incorporation, with power and authority (corporate and other) to own its properties and conduct its business as described in the Prospectus, and has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties, or conducts any business, so as to require such qualification, or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction; the Company's subsidiaries that are limited partnerships or limited liability companies have been duly organized and are validly existing as limited partnerships or limited liability companies in good standing under the laws of the states of their respective organization with power and authority (partnership or corporate and other) to own their properties and conduct their businesses, and have been duly qualified as foreign limited partnerships or limited liability companies for the transaction of business and are in good standing under the laws of each other jurisdiction in which they own or lease properties, or conduct any business, so as to require such qualification, or are subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction; and all of the outstanding shares of capital stock of, or equity interests in, each subsidiary of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and are owned by the Company, directly or indirectly, free and clear of all liens, encumbrances, equities or claims, except for 118 shares of the 1,200 outstanding shares of preferred stock, $100 par value, of AutoZone Development Corporation;
(h) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company (including the Shares to be sold by the Selling Stockholders to the Underwriter hereunder) have been duly and validly authorized and issued, are fully paid and non-assessable and conform to the description of the Common Stock contained in the Prospectus;
(i) The execution, delivery and performance by the Company of this Agreement and the consummation of the transactions herein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, stock option or other employee benefit plan, or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject, nor will such action result in any violation of the provisions of the Articles of Incorporation or By-laws of the Company or any of its subsidiaries or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or any of their respective properties; no consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the execution, delivery and performance by the Company of this Agreement and the consummation of the transactions contemplated hereby, except the registration under the Act of the Shares and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Shares by the Underwriter; and this Agreement has been duly authorized, executed and delivered by the Company;
(j) Other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is subject which, if determined adversely to the Company or any of its subsidiaries, would, either individually or in the aggregate, have a material adverse effect on the general affairs, business, management, financial position, stockholders' equity or results of operations of the Company and its subsidiaries taken as a whole; and, to the best of the Company's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(k) There are no contracts or other documents of a character required to be described in the Prospectus or filed as exhibits to the Registration Statement by the Act or by the rules and regulations of the Commission thereunder which have not been described in the Prospectus or filed as exhibits to the Registration Statement; and
(l) Ernst & Young LLP, who have certified certain financial statements of the Company, are independent public accountants as required by the Act and the rules and regulations of the Commission thereunder.
Appears in 1 contract
Representations, Warranties and Agreements of the Company. Each of the The Company represents and the Operating Partnership, jointly and severally, represent and warrant to, and agree with, DBS, on and warrants to each Underwriter as of (i) the date hereof, (ii) each as of the date on which of the Company delivers a Transaction Notice (the “Time applicable Pricing Agreement and as of Delivery”) or executes and delivers a Terms Agreement, (iii) each Time of Sale (as defined below), (iv) each Settlement Date and (v) each Bring-Down Delivery Date (as defined referred to in Section 6(b)) (3 hereof, and agrees with each such date listed in (i) through (v), a “Representation Date”), Underwriter as follows:
(a) There is The Company meets the requirements for use of Form S-3 under the Securities Act and the Securities Act Regulations and the conditions for use of Form S-3, as set forth in the general instructions thereto, have been satisfied. The Company has filed with the Commission the Registration Statement and has filed such amendments thereto as may have been required to the date hereof. The Registration Statement (which includes any post-effective amendment thereto) has been declared effective by the Commission; no stop order preventing or suspending the use effectiveness of the such Registration Statement, the Prospectus or any Permitted Free Writing Prospectus, and, to the knowledge of the Company, Statement has been issued; and no proceeding for that purpose or pursuant to Section 8A of the Act against the Company or related to the offering has been initiated or threatened by the Commission; no notice of objection of the Commission to the use of such ;
(b) The Registration Statement pursuant to Rule 401(g)(2) under and the Act has been received by Prospectus, at the Company; time the Registration Statement complied when it initially and any amendments thereto became effective, complies effective and as of the date hereof and, as then amended or supplementedhereof, as of the date of the applicable Pricing Agreement and as of each other Representation Date will complyTime of Delivery, complied in all material respectsrespects with the applicable requirements of the Securities Act and the Securities Act Regulations. The Registration Statement, at the time the Registration Statement and any amendments thereto became effective and as of the date hereof, as of the date of the applicable Pricing Agreement and as of each Time of Delivery, did not, and will not, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading. The Prospectus, at the time the Registration Statement and any amendments thereto became effective and as of the date hereof, as of the date of the applicable Pricing Agreement and as of each Time of Delivery (unless the term "Prospectus" refers to a prospectus which has been provided to the Underwriters by the Company for use in connection with the offering of the Shares which differs from the Prospectus filed with the Commission pursuant to Rule 424(b) of the Securities Act Regulations, in which case also at the time the Prospectus is first provided to the Underwriters for such use) 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. The two preceding sentences do not apply to information contained in or omitted from the Registration Statement or the Prospectus (or any supplement thereto) in reliance upon and in conformity with written information furnished to the Company through the Representatives by or on behalf of any Underwriter specifically for use therein (the "Underwriters' Information"). For purposes of this Section 1(b), all references to the Registration Statement, any post-effective amendments thereto and the Prospectus shall be deemed to include, without limitation, any electronically transmitted copies thereof, including, without limitation, any copy filed with the Commission pursuant to its Electronic Data Gathering, Analysis, and Retrieval system ("EDGAX");
(c) The documents incorporated by reference or deemed to be incorporated by reference in the Prospectus, when they became effective and at the time they were filed with the Commission, complied and will comply in all material respects with the requirements of the Act; Exchange Act and the conditions to the use of Form S-3ASR in connection with the offering rules and sale regulations of the Shares as contemplated hereby have been satisfied; Commission thereunder (the Registration Statement meets"Exchange Act Regulations"), 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 offering statements therein not misleading; and sale of any further documents so filed and incorporated by reference in the Shares as contemplated hereby complies withProspectus, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5)); the Prospectus complied or will comply, at the time it was or will be when such documents are filed with the Commission, and will comply, as then amended or supplemented, as of each Representation Date (other than the date hereof), conform in all material respects, with respects to the requirements of the Act; Exchange Act and the Registration Statement did not, as of the time of its initial effectiveness, Exchange Act Regulations and does will not or will not, as then amended or supplemented, as of each Representation Date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading; ;
(d) The Company and each of its subsidiaries have been duly incorporated and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation, are duly qualified to do business and are in good standing as foreign corporations in each Representation Date jurisdiction in which their respective ownership or lease of property or the conduct of their respective businesses requires such qualification, and have all power and authority necessary to own or hold their respective properties and to conduct the businesses in which they are engaged, except where the failure to so qualify or have such power or authority would not have, singularly or in the aggregate, a material adverse effect on the financial condition, results of operations or business of the Company and its subsidiaries taken as a whole;
(other than the date hereof), e) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and are not subject to preemptive or similar rights and conform to the description thereof contained in the Prospectus;
(f) The Shares have been duly and validly authorized, and, when the Designated Shares are issued and delivered pursuant to this Agreement and the Pricing Agreement with respect to such Designated Shares, such Designated Shares will be duly and validly issued and fully paid and non-assessable and are not subject to preemptive or similar rights; the Shares conform to the description thereof contained in the Registration Statement and the Designated Shares will conform to the description thereof contained in the Prospectus as then amended or supplementedsupplemented with respect to such Designated Shares;
(g) This Agreement has been duly authorized, together executed and delivered by the Company;
(h) The issue and sale of the Shares, and the compliance by the Company with all of the then issued Permitted Free Writing Prospectuses, if any, provisions of this Agreement and any Pricing Agreement and the consummation of the transactions contemplated hereby and thereby will not contain an untrue statement conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject and which conflict, breach, violation or default would have a material fact adverse effect on the financial condition, results of operations or omit business of the Company and its subsidiaries taken as a whole, nor will such actions result in any violation of the provisions of the charter or by-laws of the Company or any of its subsidiaries or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or any of their properties or assets; and except for the registration of the Shares under the Securities Act, such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws in connection with the purchase and distribution of the Shares by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body is required for the execution, delivery and performance of this Agreement or any Pricing Agreement and the consummation of the transactions contemplated hereby and thereby;
(i) The financial statements (including the related notes and supporting schedules) filed as part of the Registration Statement or included or incorporated by reference in the Prospectus present fairly in all material respects the financial condition and results of operations of the entities purported to state be shown thereby, at the dates and for the periods indicated, and have been prepared in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods involved except as disclosed therein;
(j) Other than as set forth or incorporated by reference in the Registration Statement and in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property or assets of the Company or any of its subsidiaries is the subject which, singularly or in the aggregate, are reasonably likely to have a material fact necessary inadverse effect on the financial condition, results of operations or business of the Company and its subsidiaries taken as a whole; and to the best of the Company's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(k) Neither the Company nor any of its subsidiaries has sustained since the date of the latest audited financial statements included or incorporated by reference in the Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, which is material to the Company and its subsidiaries, taken as a whole, otherwise than as set forth or contemplated in the Prospectus; and since the respective dates as of which information is given in the Prospectus, there has not been any material change in the capital stock or long-term debt of the Company or any of its subsidiaries (other than pursuant to employee stock option and dividend reinvestment plans or the Company's common stock repurchase program as set forth or contemplated in the Prospectus) or any material adverse change, or any development which the Company has reasonable cause to believe will involve a material adverse change, in or affecting the management, financial position, stockholder's equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Prospectus;
(l) The accountants who certified the financial statements and supporting schedules included or incorporated by reference into the Registration Statement and Prospectus are independent public accountants as required by the Securities Act and the Securities Act Regulations; and
(m) Other than as set forth or incorporated by reference in the Registration Statement and in 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 owned or to be owned by such person or to require the Company to include such securities in the securities registered pursuant to the Registration Statement or in any securities being registered pursuant to any other registration statement filed by the Company under the Securities Act. Any certificate signed by any officer of the Company and delivered to the Representatives or to counsel for the Underwriters shall be deemed a representation and warranty by the Company to each Underwriter as to the matters covered thereby.
Appears in 1 contract
Samples: Underwriting Agreement (Mapco Inc)
Representations, Warranties and Agreements of the Company. Each of the The Company represents and the Operating Partnership, jointly and severally, represent and warrant warrants to, and agree agrees with, DBS, on and as each of (i) the date hereof, (ii) each date on which the Company delivers a Transaction Notice (the “Time of Delivery”) or executes and delivers a Terms Agreement, (iii) each Time of Sale (as defined below), (iv) each Settlement Date and (v) each Bring-Down Delivery Date (as defined in Section 6(b)) (each such date listed in (i) through (v), a “Representation Date”), as followsUnderwriters that:
(a) There is An “automatic shelf registration statement” as defined under Rule 405 under the Securities Act of 1933, as amended (the “Securities Act”), on Form S-3 (File No. 333-207652) in respect of the Securities has been filed with the Securities and Exchange Commission (the “Commission”) not earlier than three years prior to the date of this Agreement; such registration statement, and any post-effective amendment thereto, became effective on filing; no stop order preventing or suspending the use effectiveness of the Registration Statement, the Prospectus such registration statement or any Permitted Free Writing Prospectus, and, to the knowledge of the Company, part thereof has been issued and no proceeding for that purpose or pursuant to Section 8A of the Act against the Company or related to the offering has been initiated or threatened by the Commission; , and no notice of objection of the Commission to the use of such Registration Statement registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act has been received by the Company; the Registration Statement complied when it initially various parts of such registration statement, including all exhibits thereto (other than the Statements of Eligibility and Qualification on Form T-1) and including any prospectus supplement relating to the Securities that is filed with the Commission pursuant to Rule 424(b) under the Securities Act and deemed by Rule 430B under the Securities Act to be part of such registration statement, each as amended at the time such part of the registration statement became effective, complies are hereinafter collectively called the “Registration Statement”; the base prospectus filed as part of the Registration Statement, in the form in which it was most recently filed with the Commission prior to or on the date hereof andof this Agreement, is hereinafter called the “Base Prospectus”; the final prospectus supplement to such prospectus (including the Base Prospectus) relating to the Securities, in the form filed or to be filed with the Commission pursuant to Rule 424(b) under the Securities Act, is hereinafter called the “Prospectus”; any preliminary prospectus (including any preliminary prospectus supplement) relating to the Securities, in the form filed or to be filed with the Commission pursuant to Rule 424(b), is hereinafter called a “Preliminary Prospectus”; the Base Prospectus, as then amended or supplementedsupplemented immediately prior to the Applicable Time (as defined in Section 1(e) hereof), including, without limitation, any Preliminary Prospectus relating to the Securities, is hereinafter called the “Pricing Prospectus”; any reference in this Agreement to the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein that were filed under the Securities Exchange Act of 1934, as of each other Representation Date will complyamended (the “Exchange Act”), in all material respectsor the Securities Act, with as the requirements of the Act; the conditions to the use of Form S-3ASR in connection with the offering and sale of the Shares as contemplated hereby have been satisfied; the Registration Statement meetscase may be, and the offering rules and sale regulations of the Shares as contemplated hereby complies withCommission thereunder, on or before the date of this Agreement or the issue date of any such prospectus; any reference to “amend,” “amendment,” “supplement” or similar terms with respect to the Registration Statement, the requirements of Rule 415 Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus shall be deemed to refer to and include any documents filed under the Exchange Act or the Securities Act, as the case may be, after the date of this Agreement or the issue date of any such prospectus which are deemed to be incorporated by reference therein; and any “issuer free writing prospectus” (as defined in Rule 433 under the Securities Act) relating to the Securities that (x) is required to be filed with the Commission by the Company or (y) is exempt from filing pursuant to Rule 433(d)(5)(i) under the Securities Act because it contains a description of the Securities or the offering that does not reflect the final terms is hereinafter called an “Issuer Free Writing Prospectus”;
(b) The documents incorporated by reference in the Registration Statement, the Pricing Prospectus and the Prospectus (including, without limitation, Rule 415(a)(5the interactive data in eXtensible Business Reporting Language included or incorporated by reference therein)); the Prospectus complied or will comply, at the time it was or will be when they were filed with the Commission, and will complyCommission or became effective, as then amended or supplementedthe case may be, as of each Representation Date (other than the date hereof), conformed in all material respects, with respects to the requirements of the Exchange Act or the Securities Act, as the case may be, and the rules and regulations of the Commission thereunder; 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 Registration Statement did notStatement, the Pricing Prospectus and the Prospectus (including, without limitation, the interactive data in eXtensible Business Reporting Language included or incorporated by reference therein), when such documents are filed with the Commission or become effective, as the case may be, will conform in all material respects to the requirements of the time of its initial effectivenessExchange Act or the Securities Act, as applicable, and does the rules and regulations of the Commission thereunder and will not or will not, as then amended or supplemented, as of each Representation Date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made therein in reliance upon and in conformity with information furnished in writing to the Company by an Underwriter through the Representatives expressly for use therein;
(c) The Registration Statement, any Preliminary Prospectus and the Pricing Prospectus conform, and the Prospectus and any post-effective amendments or supplements to the Registration Statement or the Prospectus will conform, in all material respects, to the requirements of the Securities Act and the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and the rules and regulations of the Commission thereunder; and (i) the Registration Statement and any amendment thereto, as of each Representation Date (other than their applicable effective dates relating to the date hereof)Securities, the Prospectus, as then amended or supplemented, together with all of the then issued Permitted Free Writing Prospectuses, if any, did not and will not contain an any untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) any Preliminary Prospectus, the Pricing Prospectus, the Prospectus and any amendment or supplement thereto, as of their issue dates, did not and will not contain any untrue statement of a material fact or omit to state a material fact necessary inin order to make the statements therein, in the light of the circumstances under which they were made, not misleading and (iii) the Prospectus and the Prospectus as amended or supplemented, if applicable, at the Time of Delivery (as defined in Section 2 hereof), 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 this representation and warranty shall not apply to any statements or omissions made therein in reliance upon and in conformity with information furnished in writing to the Company by an Underwriter through the Representatives expressly for use therein;
(d) The Company has been, and continues to be, a “well-known seasoned issuer” (as defined in Rule 405 under the Securities Act), and has not been, and continues not to be, an “ineligible issuer” (as such term is defined in Rule 405 under the Securities Act), in each case as from the earliest time after the filing of the Registration Statement that the Company or another offering participant made a “bona fide” offer (within the meaning of Rule 164(h)(2) under the Securities Act) of the Securities;
(e) As used herein, the “Pricing Disclosure Package” means, collectively, (i) the Pricing Prospectus, (ii) the Pricing Term Sheet prepared and filed pursuant to Section 5(b) hereof and (iii) any other Issuer Free Writing Prospectus that is identified on Schedule III hereto; and the “Applicable Time” means 7:45 p.m. (New York City time) on the date of this Agreement. The Pricing Disclosure Package, as of the Applicable Time, did not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and each Issuer Free Writing Prospectus identified on Schedule III hereto does not conflict with the information contained in the Registration Statement, the Pricing Prospectus or the Prospectus; provided, however, that this representation and warranty shall not apply to statements or omissions made therein in reliance upon and in conformity with information furnished in writing to the Company by an Underwriter through the Representatives expressly for use therein;
Appears in 1 contract
Representations, Warranties and Agreements of the Company. Each of In addition to the representations and warranties set forth in the Underwriting Agreement, the Company represents and the Operating Partnership, jointly and severally, represent and warrant warrants to, and agree agrees with, DBS, on and as of (i) the date hereof, (ii) each date on which the Company delivers a Transaction Notice (the “Time of Delivery”) or executes and delivers a Terms Agreement, (iii) each Time of Sale (as defined below), (iv) each Settlement Date and (v) each Bring-Down Delivery Date (as defined in Section 6(b)) (each such date listed in (i) through (v), a “Representation Date”), Underwriters as follows:
(a) There is no order preventing or suspending the use of the Registration StatementThe Pricing Prospectus, as supplemented by those Issuer Free Writing Prospectuses and other documents and oral statements listed in Schedule III(a) hereto, taken together (collectively, the Prospectus or any Permitted Free Writing Prospectus, and, to the knowledge of the Company, no proceeding for that purpose or pursuant to Section 8A of the Act against the Company or related to the offering has been initiated or threatened by the Commission; no notice of objection of the Commission to the use of such Registration Statement pursuant to Rule 401(g)(2“Pricing Disclosure Package”) under the Act has been received by the Company; the Registration Statement complied when it initially became effective, complies as of the date hereof andApplicable Time, as then amended or supplemented, as of each other Representation Date will comply, in all material respects, with the requirements of the Act; the conditions to the use of Form S-3ASR in connection with the offering and sale of the Shares as contemplated hereby have been satisfied; the Registration Statement meets, and the offering and sale of the Shares as contemplated hereby complies with, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5)); the Prospectus complied or will comply, at the time it was or will be filed with the Commission, and will comply, as then amended or supplemented, as of each Representation Date (other than the date hereof), in all material respects, with the requirements of the Act; the Registration Statement did not, as of the time of its initial effectiveness, and does not or will not, as then amended or supplemented, as of each Representation Date, contain an include 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 therein, in the light of the circumstances under which they were made, not misleading; as of and each Representation Date (other than Issuer Free Writing Prospectus listed on Schedule III(a) or Schedule III(b) hereto does not conflict with the date hereof)information contained in the Registration Statement, the Pricing Prospectus or the Prospectus and each such Issuer Free Writing Prospectus, as then amended or supplemented, supplemented by and taken together with all the Pricing Disclosure Package as of the then issued Permitted Free Writing ProspectusesApplicable Time, if any, will did not contain an include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that this representation and warranty shall not apply to statements or omissions made in the Pricing Disclosure Package in reliance upon and in conformity with information furnished in writing to the Company by the Underwriters expressly for use therein.
(b) Each representation and warranty of the Company regarding any disclosure as set forth or contemplated in, or any document incorporated by reference in, the Prospectus shall be deemed to also refer to such disclosure as set forth in, or such document incorporated by reference in, the Pricing Disclosure Package.
(c) No document incorporated by reference in the Prospectus or the Pricing Prospectus was filed with the Commission since the Commission’s close of business on the business day immediately prior to the date of this Addendum and prior to the execution of this Addendum, except as set forth in Schedule III(c) hereto.
(d) The Company agrees to pay any fees, disbursements and expenses in connection with the preparation, reproduction and filing of any Issuer Free Writing Prospectus.
(e) The Company agrees that any provision in the Underwriting Agreement which refers to the requirement to deliver a prospectus shall be deemed to also refer to the requirement to deliver a notice in lieu of a prospectus pursuant to Rule 173(a) under the Act.
(i) At the time of filing the Registration Statement, (ii) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), (iii) at the Applicable Time and (iv) at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c)) made any offer relating to the Securities in reliance on the exemption of Rule 163 under the Act, the Company was a “well-known seasoned issuer” as defined in Rule 405 under the Act.
(g) The Company agrees that if there occurs an event or development as a result of which the Pricing Disclosure Package would include an untrue statement of a material fact or would omit to state a material fact necessary inin order to make the statements therein, in the light of the circumstances then prevailing, not misleading, the Company will promptly notify the Underwriters so that any use of the Pricing Disclosure Package may cease until it is amended or supplemented.
Appears in 1 contract
Representations, Warranties and Agreements of the Company. Each of the The Company represents, warrants and the Operating Partnership, jointly and severally, represent and warrant to, and agree with, DBS, on and as of (i) the date hereof, (ii) each date on which the Company delivers a Transaction Notice (the “Time of Delivery”) or executes and delivers a Terms Agreement, (iii) each Time of Sale (as defined below), (iv) each Settlement Date and (v) each Bring-Down Delivery Date (as defined in Section 6(b)) (each such date listed in (i) through (v), a “Representation Date”), as followsagrees that:
(a) There A registration statement on Form F-1 (Registration No. 333-__), and one or more amendments thereto, with respect to the Shares have (i) been prepared by the Company in conformity with the requirements of the U.S. Securities Act of 1933, as amended (the "Securities Act"), and the rules and regulations (the "Rules and Regulations") of the U.S. Securities and Exchange Commission (the "Commission") thereunder, (ii) been filed with the Commission under the Securities Act and (iii) become effective under the Securities Act; and a second registration statement on Form F-1 with respect to the Shares (i) may also be prepared by the Company in conformity with the requirements of the Securities Act and the Rules and Regulations and (ii) if to be so prepared, will be filed with the Commission under the Securities Act pursuant to Rule 462(b) of the Rules and Regulations on the date hereof. Copies of the first such registration statement and the amendments to such registration statement, together with the form of any such second registration statement, have been delivered by the Company to the Representatives. As used in this Agreement, "Effective Time" means (i) with respect to the first such registration statement, the date and the time as of which such registration statement, or the most recent post-effective amendment thereto, if any, was declared effective by the Commission and (ii) with respect to any second registration statement, the date and time as of which such second registration statement is no filed with the Commission, and "Effective Times" is the collective reference to both Effective Times; "Effective Date" means (i) with respect to the first such registration statement, the date of the Effective Time of such registration statement and (ii) with respect to any second registration statement, the date of the Effective Time of such second registration statement, and "Effective Dates" is the collective reference to both Effective Dates; "Preliminary Prospectus" means each prospectus included in any such registration statement, or amendments thereof, before it became effective under the Securities Act and any prospectus filed with the Commission by the Company with the consent of the Representatives pursuant to Rule 424(a) of the Rules and Regulations; "Primary Registration Statement" means the first registration statement referred to in this Section 1(a), as amended at its Effective Time, "Rule 462(b) Registration Statement" means the second registration statement, if any, referred to in this Section 1(a), as filed with the Commission, and "Registration Statements" means both the Primary Registration Statement and any Rule 462(b) Registration Statement, including in each case all information contained in the final prospectus filed with the Commission pursuant to Rule 424(b) of the Rules and Regulations in accordance with Section 5(a) hereof and deemed to be a part of the Registration Statements as of the Effective Time of the Primary Registration Statement pursuant to paragraph (b) of Rule 430A of the Rules and Regulations; and "Prospectus" means such final prospectus, as first filed with the Commission pursuant to paragraph (1) or (4) of Rule 424(b) of the Rules and Regulations. The Commission has not issued any order preventing or suspending the use of the Registration Statement, the Prospectus or any Permitted Free Writing Preliminary Prospectus, and, to the knowledge of the Company, no proceeding for that purpose or pursuant to Section 8A of the Act against the Company or related to the offering has been initiated or threatened by the Commission; no notice of objection of the Commission to the use of such Registration Statement pursuant to Rule 401(g)(2) under the Act has been received by the Company; the Registration Statement complied when it initially became effective, complies as of the date hereof and, as then amended or supplemented, as of each other Representation Date will comply, in all material respects, with the requirements of the Act; the conditions to the use of Form S-3ASR in connection with the offering and sale of the Shares as contemplated hereby have been satisfied; the Registration Statement meets, and the offering and sale of the Shares as contemplated hereby complies with, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5)); the Prospectus complied or will comply, at the time it was or will be filed with the Commission, and will comply, as then amended or supplemented, as of each Representation Date (other than the date hereof), in all material respects, with the requirements of the Act; the Registration Statement did not, as of the time of its initial effectiveness, and does not or will not, as then amended or supplemented, as of each Representation Date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; as of each Representation Date (other than the date hereof), the Prospectus, as then amended or supplemented, together with all of the then issued Permitted Free Writing Prospectuses, if any, will not contain an untrue statement of a material fact or omit to state a material fact necessary in.
Appears in 1 contract