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, KeyBanc, 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
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 and the Operating Partnership, jointly and severally, represent and warrant to, and agree with, KeyBancthe Subject 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 CompanyCompany and the Operating Partnership, 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 itsthe
Appears in 3 contracts
Samples: Distribution Agreement (Mid-America Apartments, L.P.), Distribution Agreement (Mid-America Apartments, L.P.), Distribution Agreement (Mid-America Apartments, 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, KeyBancthe 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; , and did not or will not, as the conditions 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. 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, included or will include an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The representations and warranties in this subsection shall not apply to 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 Form S-3ASR 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 offering 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 contemplated hereby have been satisfied; 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 meetsor 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 offering and sale statements therein, in the light of the Shares as contemplated hereby complies withcircumstances, not misleading, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5)); the Prospectus complied Company has notified or will comply, at notify promptly the time Agents so that any use of such Permitted Free Writing Prospectus may cease until it was or will be filed with the Commission, and will comply, as then is amended or supplemented, as of each Representation Date (other than . 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 date hereof), in all material respects, with Company by the requirements of the Act; the Registration Statement did not, as of the time of itsAgents 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, KeyBancBAML, 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 itsits 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
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, KeyBanceach 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 itsits 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, 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 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, KeyBanc, 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 itsthe
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 Company and the Operating Partnership, jointly and severally, represent and warrant to, and agree with, KeyBanc, 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 itsits 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
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 and the Operating Partnership, jointly and severally, represent and warrant warrants to, and agree agrees with, KeyBancDBSI, 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 itsits 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
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 warrants to and severally, represent and warrant to, and agree with, KeyBanc, 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 any Preliminary Prospectus. At the time of filing of each Preliminary Prospectus, such prospectus did not include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. When the Registration StatementStatement 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 its date 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 (ii) the Registration Statement did not or will not include as of its date any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading. When the Prospectus or any Permitted Free Writing Prospectus, and, to the knowledge of the Company, no proceeding for that purpose amendment 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 supplement thereto is filed with the Commission to the use of such Registration Statement pursuant to Rule 401(g)(2424(b) under (or, if the Act has been received by the Company; Prospectus or such amendment or supplement is not required to be so filed, when the Registration Statement complied when it initially became or the amendment thereto containing such amendment or supplement to the Prospectus was or is declared effective), complies as of on the date hereof andwhen the Prospectus is otherwise amended or supplemented and on each Closing Date (as hereinafter defined), the Prospectus, as then amended or supplementedsupplemented at any such time, 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 i) contained 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 contain all material respects, with the requirements of the Act; the Registration Statement did not, as of the time of itsstatements 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 warrants to and severally, represent and warrant to, and agree with, KeyBanc, 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 any Preliminary Prospectus. At the time of filing of each Preliminary Prospectus, such prospectus did not include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. When the Registration StatementStatement 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 its date 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 (ii) the Registration Statement did not or will not include as of its date any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading. When the Prospectus or any Permitted Free Writing Prospectus, and, to the knowledge of the Company, no proceeding for that purpose amendment 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 supplement thereto is filed with the Commission to the use of such Registration Statement pursuant to Rule 401(g)(2424(b) under (or, if the Act has been received by the Company; Prospectus or such amendment or supplement is not required to be so filed, when the Registration Statement complied when it initially became or the amendment thereto containing such amendment or supplement to the Prospectus was or is declared effective), complies as of on the date hereof andwhen the Prospectus is otherwise amended or supplemented and on each Closing Date (as hereinafter defined), the Prospectus, as then amended or supplementedsupplemented at any such time, 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 i) contained 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 contain all material respects, with the requirements of the Act; the Registration Statement did not, as of the time of itsstatements 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 Company and the Operating Partnership, jointly and severally, represent and warrant to, and agree with, KeyBancBAML, 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 itsits 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
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 The Company represents and the Operating Partnership, jointly and severally, represent and warrant warrants to, and agree agrees with, KeyBancJPMS, 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 itsits 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
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, KeyBanceach 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 itsits 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, 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 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, KeyBanc, 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
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, KeyBanceach 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 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 hereof, will comply when it is initially declared effective by the Commission 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, will not as of the time of itsits initial effectiveness, and does not and 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, 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 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 the Agents’ 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, KeyBancthe 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 itsits initial effectiveness, and does not
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, KeyBancthe 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 itsits initial effectiveness, and does not or will not, as then amended or supplemented, as of each Representation Date, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; as of each Representation Date, the Prospectus, as then amended or supplemented, together with all of the then issued Permitted Free Writing Prospectuses, if any, will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no 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, KeyBancthe 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 itsits 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, 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 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 Company and the Operating Partnership, jointly and severally, represent and warrant to, and agree with, KeyBancDBS, 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 itsits 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 and the Operating Partnership, jointly and severally, represent and warrant warrants to, and agree agrees with, KeyBancCiti, on and as of (i) the date hereof, (ii) each date on which the Company delivers and Citi 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 itsits 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; 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 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 Citi’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, KeyBanceach 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 itsits initial effectiveness, and does not or will not, as then amended or supplemented, as of each Representation Date, contain an untrue statement
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, KeyBanceach 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 itsnot and will
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, KeyBancthe Agent, 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 itsits 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 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 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: Atm Equity Offerings Sales 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, KeyBanc, 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 Registration Statement 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 of the Registration Statement, the Registration Statement complied when did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. 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 initially became effectivebeing 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, complies 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 the date hereof andhereof, 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 then amended 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 supplementedprior 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 of the Closing Date, the Prospectus will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. 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 each other Representation Date 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 complynot 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 in order to make the statements therein, in all material respectsthe 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 requirements 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 ActCompany 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 conditions 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 use aggregate, have a Material Adverse Effect; all of Form S-3ASR 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 offering 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 Shares 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 contemplated hereby have been satisfied; the Registration Statement meetsenforceability 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 offering and sale terms of the Shares as contemplated hereby complies withSecurities, 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 to 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, dated as of the time 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 itsthe 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, KeyBancthe 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 itsits 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, 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 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, KeyBancJPMS, 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 itsits 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 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 and the Operating Partnership, jointly and severally, represent and warrant warrants to, and agree agrees with, KeyBancKeyBanc Capital Markets, 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 itsits 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 KeyBanc Capital Markets and furnished in writing by or on behalf of KeyBanc Capital Markets 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 KeyBanc Capital Markets’ 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, represent and warrant to, and agree with, KeyBancDBS, 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 itsits initial effectiveness, and does not or will not, as then amended or supplemented, as of each Representation Date, contain an
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, KeyBanceach 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 each Representation Date, contained, contains or will contain 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 itsany filing with the Commission pursuant to Rule 424(b) and as of each Representation Date, 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.
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, KeyBanceach 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 has been declared effective by the Commission. There is no order preventing or suspending the use of the Registration Statement, Statement or 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 was declared 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 itsits 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, the Prospectus, as then amended or supplemented, 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 in or omission from the Registration Statement or the 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 or the 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
Samples: Distribution Agreement (Broadmark Realty Capital 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, KeyBancthe 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)) for which no waiver is available pursuant to Section 6(b) (each such date listed in (i) through (vvi), a “Representation Date”), as follows:
(a) There is The Registration Statement has been declared effective by the Commission no earlier than three years prior to the date hereof. 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 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 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)(5415(a)(1)(x)); 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 itsits 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, 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 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 (a) The Company represents, warrants and the Operating Partnership, jointly and severally, represent and warrant to, and agree with, KeyBancagrees, on and as of (i) the date hereof, that the representations and warranties made by the Company, as applicable, in the underwriting agreement, dated June 14, 2005, among the Company and Lehman Brothers Inc., as representative of the underwriters named thexxxx (each an "Underwriter," and collectively, the "Underwriters") (the "Underwriting Agreement"), relating to the Preferred Stock, are true, correct and complete in all material respects, as if made on the date hereof.
(b) In addition, (i) on and as of the date of filing and of effectiveness of the Registration Statement (as defined in paragraph (II)(A) of this Section 2(b)) and on and as of the date of any amendment to the Registration Statement, (ii) each on and as of the date of any Final Prospectus (as defined in paragraph (II)(A) of this Section 2(b)) and on which and as of the Company delivers date of any supplement thereto distributed in connection with a Transaction Notice (the “Time of Delivery”) or executes and delivers a Terms AgreementRemarketing, (iii) each Time on and as of Sale (as defined below)any Election Date, (iv) each Settlement Date on and as of any Remarketing Date, and (v) each Bring-Down Delivery on and as of any Remarketing Settlement Date (as defined to the extent applicable):
(I) the Company makes each of the representations and warranties set forth in Section 6(b)) paragraphs (each such date listed in (id) through (vg), a “Representation Date”(j), (k), (m), (n) and (p) through (x) of Section 1 of the Underwriting Agreement, except that such representations, warranties and agreements, as made herein, shall be deemed to have been amended and shall be read mutatis mutandis, as follows:
(aA) There is no order preventing or suspending the use of the each reference to a Registration Statement, the Incorporated Documents, Basic Prospectus, Final Prospectus or any Permitted Free Writing Prospectus, and, Interim Prospectus shall be deemed to refer to those terms as defined in paragraph (II) of this Section 2(b);
(B) each reference to "Delivery Date" shall be deemed to be to the knowledge Remarketing Settlement Date;
(C) each reference to PLIC shall be deemed to be to any subsidiary of the Company, no proceeding for direct or indirect, that purpose or pursuant to Section 8A is an Insurance Company and a "significant subsidiary" as such term is defined in Rule 405 of the Act against the Company or related Rules;
(D) each reference to the offering has been initiated "issue" or threatened by the Commission; no notice of objection "issue and sale" of the Commission Preferred Stock shall be deemed to include 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, Remarketing 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))Remarketed Securities; 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 itsand
Appears in 1 contract
Samples: Remarketing Agreement (Principal Financial 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 to, and agree with, KeyBanc, 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 applicable effective date as to the Registration Statement and any amendment thereto and as of itsthe 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 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;
(d) The documents incorporated by reference in the Prospectus, when they became effective or were filed with 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 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 warrants to, and agree agrees with, KeyBanceach 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 itsits 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, 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 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 warrants to, and agree with, KeyBanc, 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. 333-120082) on Form SB-2 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; Act and the conditions to rules and regulations (the use “Rules and Regulations”) of Form S-3ASR in connection the Commission promulgated thereunder, and has been filed 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 Commission under the Act (includingand one or more amendments to such registration statement may have been so filed. After the execution of this Agreement, without limitation, Rule 415(a)(5)); the Prospectus complied or Company will comply, at the time it was or will be filed file with the Commission, and will complyCommission either (i) if such registration statement, as then amended 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 supplementedinsertions 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 of each Representation Date (other than it may have been amended, has not been declared by the date hereof), in all material respects, with the requirements of 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 Registration Statement did notexecution of this Agreement. As used in this Agreement, as of the time of itsterm “
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, KeyBanceach 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 itsits 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, 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 Company and the Operating Partnership, jointly and severally, represent and warrant to, and agree with, KeyBancBAML, 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 itsits 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
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, KeyBanceach 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 itsits initial effectiveness, and does not or will not, as then amended or supplemented, as of each Representation Date, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and as of each Representation Date, the Prospectus, as then amended or supplemented, together with all of the then issued Permitted Free Writing Prospectuses (as defined below), if any, will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the
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, KeyBanceach 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 itsits 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, 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 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, KeyBanceach 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 itsits initial effectiveness, and does not or will not, as then amended or supplemented, as of each Representation Date, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and as of each Representation Date, the Prospectus, as then amended or supplemented, together with all of the then issued Permitted Free Writing Prospectuses (as defined below), if any, 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 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 Company and the Operating Partnership, jointly and severally, represent and warrant to, and agree with, KeyBancBofA Securities, 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 itsof
Appears in 1 contract
Samples: Equity Distribution Agreement (American Campus Communities Operating Partnership LP)
Representations, Warranties and Agreements of the Company. Each The Company represents and warrants to each of the Company Agents and the Operating Partnership, jointly and severally, represent and warrant to, and agree with, KeyBanc, on and Forward Purchasers 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 below), (ivv) each Settlement Date and (vvi) each Bring-Down Delivery Date (as defined in below) on which a certificate is required to be delivered pursuant to Section 6(b)) hereof (each such date listed in (i) through (vvi), a “Representation Date”), as followsand agrees that:
(a1) There At the time of filing the Registration Statement, (2) 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), (3) at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Act) made any offer relating to the Shares in reliance on the exemption of Rule 163 under the Act or made a bona fide offer (within the meaning of Rule 164(h)(2) under the Act) and (4) at the date hereof, the Company was and is no order preventing or suspending eligible to register and issue the Shares, as a “well-known seasoned issuer” as defined in Rule 405 under the Act (“Rule 405”), including not having been and not being an “ineligible issuer” as defined in Rule 405. The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405, and the Shares, since their registration on the Registration Statement, have been and remain eligible for registration by the Company on a Rule 405 “automatic shelf registration statement.” The Company has not received from the Commission any notice pursuant to Rule 401(g)(2) under the Act objecting to the use of the automatic shelf registration statement form.
(b) The Registration StatementStatement became effective upon filing under Rule 462(e) under the Act on November 6, 2023, and any post-effective amendment thereto also became effective upon filing under Rule 462(e) under the Prospectus Act. No stop order suspending the effectiveness of the Registration Statement and/or any notice objecting to its use has been issued under the Act and no proceedings for that purpose have been instituted or any Permitted Free Writing Prospectus, andare pending or, to the knowledge of the Company, no proceeding are contemplated by the Commission, and any request on the part of the Commission for additional information has been complied with. Any offer that purpose is a written communication relating to the Shares made prior to the filing of the Registration Statement by the Company, or pursuant any person acting on its behalf (within the meaning, for this paragraph only, of Rule 163(c) under the Act), has been filed with the Commission in accordance with the exemption provided by Rule 163 under the Act (“Rule 163”) and otherwise complied with the requirements of Rule 163, including without limitation the legending requirement, to qualify such offer for the exemption from Section 8A 5(c) of the Act against provided by Rule 163. At the Company or related respective times the Registration Statement and each amendment thereto became effective, at each deemed effective date with respect 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 Agents and Forward Purchasers pursuant to Rule 401(g)(2430B(f)(2) under the Act has been received by (each, a “Deemed Effective Time”), as of each time (i) with respect to each offering of Shares pursuant to this Agreement, the Company; time of an Agent’s initial entry into contracts with investors for the sale of such Shares or (ii) with respect to each offering of Shares pursuant to any relevant Terms Agreement, the time of sale of such Shares (each, a “Time of Sale”) and as of each Settlement Date, as applicable, 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 and will comply, comply 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 did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the 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)); statements therein not misleading. Neither the Prospectus complied nor any amendments or will complysupplements thereto, at the time it the Prospectus or any such amendment or supplement was issued and at each Time of Sale, as applicable, included or will be include an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Each preliminary prospectus (including the prospectus or prospectuses filed as part of the Registration Statement or any amendment thereto or any Interim Prospectus Supplement) complied when so filed in all material respects with the Act and each preliminary prospectus and the Prospectus delivered to each Agent for use in connection with this offering was identical to the electronically transmitted copies thereof filed with the CommissionCommission pursuant to XXXXX, and will comply, as then amended or supplemented, as except to the extent permitted by Regulation S-T. As of each Representation Date Time of Sale, neither (other than x) the date hereofIssuer General Use Free Writing Prospectus(es) issued at or prior to such Time of Sale, the Prospectus and any Issuer Free Writing Prospectus, including any additional information listed on Schedule B hereto, all considered together (collectively, the “General Disclosure Package”), in all material respectsnor (y) any individual Issuer Limited Use Free Writing Prospectus, when considered together with the requirements General Disclosure Package, will 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 Act; circumstances under which they were made, not misleading. As of each Time of Sale, the Registration Statement did notGeneral Disclosure Package will not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, as in the light of the time of itscircumstances under which they were made, not misleading. As used in this subsection and elsewhere in this Agreement:
Appears in 1 contract
Samples: Distribution Agreement (American Electric Power Co 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, KeyBancDeutsche 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 itsits 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; 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, KeyBancJPMS, 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 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 itsits 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 JPMS and 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 (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 to, and agree with, KeyBanc, on warrants (at and as of (i) the date hereof, (ii) hereof and at and as of 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(b5 hereof)) (to, and agrees with, each such date listed in (i) through (v), a “Representation Date”), as followsof the U.S. Underwriters that:
(a) There A registration statement on Form S-3 (File No. 333- ) in respect of the Firm Shares and Option Shares has been filed with the Securities and Exchange Commission (the "Commission"); such registration statement in the form heretofore delivered to you, as representatives for each of the several U.S. Underwriters (the "Representatives"), 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; and no stop order suspending the effectiveness of such registration statement 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 information contained in the form of final prospectus filed with the Commission pursuant to Rule 424(b) under the Act in accordance with Section 6(a) hereof and deemed by virtue of Rule 430A under the Act to be part of the registration statement at the time it was declared effective, (ii) 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 (iii) any post-effective amendment or amendments to the registration statement filed pursuant to Rule 462 under the Act, being hereinafter called the "Registration Statement"; such final prospectus, in the form filed pursuant to Rule 424(b) 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 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; and 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;
(b) No order preventing or suspending the use of any Preliminary Prospectus has been issued by the Registration StatementCommission, the Prospectus or any Permitted Free Writing and each Preliminary 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 a U.S. Underwriter through the Representatives or by a 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 Commission thereunder and do not and will not, as contemplated hereby have been satisfied; of the applicable effective date as to the Registration Statement meets, and the offering any amendment thereto and sale as of the Shares applicable filing date as contemplated hereby complies with, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5)); to the Prospectus complied and any amendment or will complysupplement thereto, at 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 time it was statements therein not misleading; PROVIDED, HOWEVER, that this representation and warranty shall not apply to any statements or will be omissions made in reliance upon and in conformity with information furnished in writing to the Company by a U.S. Underwriter through the Representatives or by a Selling Stockholder expressly for use therein;
(d) The documents incorporated by reference in the Prospectus, when they became effective or were filed with the Commission, and will complyas the case may be, as then amended or supplemented, as of each Representation Date (other than the date hereof), conformed in all material respects, with 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 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 such date, there has not been any change in the capital stock (except for any increase due to the exercise of stock options which were outstanding since such date through November , 1997, or as a result of issuances of shares of Common Stock pursuant to the Company's Stock Purchase Plan) or any increase in excess of $3 million 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 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; 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 subsidiary that is a limited partnership has been duly organized and is validly existing as a limited partnership in good standing under the laws of the State of Delaware with power and authority (partnership and other) to own its properties and conduct its business as described in the Prospectus, and has been duly qualified as a foreign limited partnership 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 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 139 shares of the 1,200 outstanding shares of preferred stock 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 U.S. Underwriters hereunder and to the International Underwriters under the International Underwriting Agreement) 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 International Underwriting 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, 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 International Underwriting Agreement and the consummation of the transactions contemplated hereby and thereby, 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 U.S. Underwriters and the International Underwriters; and this Agreement and the International Underwriting Agreement have 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 did not, as by the Act or by the rules and regulations of the time Commission thereunder which have not been described in the Prospectus or filed as exhibits to the Registration Statement; and
(l) Ernst & Young, who have certified certain financial statements of itsthe 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 warrants to, and agree agrees with, KeyBancXxxxxxx 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 itsits 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; 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 Company and the Operating Partnership, jointly and severally, represent represents and warrant warrants to, and agree agrees with, KeyBancJPMS, 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 itsits initial effectiveness, and does not or will not, as then amended or supplemented, as of each Representation Date, contain an
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, KeyBancJPMS, 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 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 itsits 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; 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 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 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
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, KeyBanceach of the Agents, Forward Purchasers and Forward Sellers 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 is The Registration Statement was filed with the Commission not earlier than three years prior to the date hereof and the Registration Statement; no order preventing or suspending the use effectiveness of the Registration Statement, the Prospectus or any Permitted Free Writing ProspectusProspectus 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 or, to the knowledge of the Company, threatened by the Commission; no notice of objection as of the Commission to the use applicable effective date 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 effectiveand any post-effective amendment thereto, complies as of the date hereof and, as then amended or supplemented, and as of each other Representation Date Date, the Registration Statement and any such post-effective amendment complied and 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 itsits 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, 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 made in or omitted from the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus in reliance upon and in conformity with information relating to any Agent, Forward Purchaser or Forward Seller that was furnished to the Company in writing by or on behalf of such Agent, Forward Purchaser or Forward Seller expressly for use in the Registration Statement, the Prospectus or such Permitted Free Writing Prospectus (it being understood and agreed that only the information furnished by or on behalf of the Agents consists of the information specified in Section 9(b)). As used herein, “Time of Sale” means (i) (x) with respect to each offering of Issuance Shares pursuant to this Agreement, the time of the Agents’ initial entry into contracts with investors for the sale of such Issuance Shares and (y) with respect to each offering in connection with a Forward Placement Notice, the time of the Forward Sellers’ initial entry into contracts with investors for the sale of such Forward Hedge Shares and (ii) with respect to each offering of Shares pursuant to any relevant Terms Agreement, the time of sale of such Issuance 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, KeyBanceach of the Agents, the Forward Sellers and the Forward Purchasers, 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 is no order preventing or suspending The Registration Statement was filed with the use of Commission not earlier than three years prior to the date hereof, and the Registration Statement, and any post-effective amendment thereto, has become effective; no order suspending the Prospectus or any Permitted Free Writing Prospectuseffectiveness of the Registration Statement has been issued, 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 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 Registration Statement did not, as of the Shares as contemplated hereby have been satisfied; the Registration Statement meetstime of its initial effectiveness, 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 does not or will comply, at the time it was or will be filed with the Commission, and will complynot, as then amended or supplemented, as of each Representation Date (other than the date hereof)Date, in all contain any untrue statement of a material respects, with the requirements of the Act; the Registration Statement did not, as of the time of itsfact or omit to state a material fact
Appears in 1 contract
Samples: Distribution Agreement (VEREIT Operating Partnership, 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, KeyBancthe Agent, on and as of (i) the date hereof, (ii) each date on which the Company delivers a Transaction Notice (the “Time of Delivery”), (iii) or each date on which the Company executes and delivers a Terms Agreement, (iiiiv) each Time of Sale (as defined belowin Section 3(I)(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 and any post-effective amendments thereto have become effective under the Act; 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 itsits 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, the Prospectus, as then amended or supplemented, together with all of the then issued Permitted Free Writing Prospectuses, if any,
Appears in 1 contract
Samples: Distribution Agreement (Javelin Mortgage 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 warrants to, and agree agrees with, KeyBancXxxxxxx 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 itsits 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 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 The Company represents and the Operating Partnership, jointly and severally, represent and warrant warrants to, and agree agrees with, KeyBanceach 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 itsits 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, 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
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, KeyBanceach 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 itsits 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, 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 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, KeyBancthe 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 itsits initial effectiveness, and does not or will not, as then amended or supplemented, as of each Representation Date, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; as of each Representation 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 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 and the Operating Partnership, jointly and severally, represent and warrant to, and agree with, KeyBancJPMS, 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 itsits 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
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, KeyBancXxxxx 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 itsits 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 of the The Company represents and the Operating Partnership, jointly warrants and severally, represent and warrant to, and agree with, KeyBancagrees with each 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, and has become effective. 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 itsits initial effectiveness, and does not or will not, as then amended or supplemented, as of each Representation Date, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; as of each Representation 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 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, KeyBanceach 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 itsits 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, the Prospectus, as then amended or
Appears in 1 contract
Samples: Distribution Agreement (Strategic Hotels & Resorts, 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, KeyBanceach 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 itsits 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, 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 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, KeyBancthe 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 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 itsits 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
Appears in 1 contract
Samples: Distribution Agreement (Western Alliance Bancorporation)
