Representations and Warranties by the Company and the Operating Partnership. Each of the Company and the Operating Partnership (the Operating Partnership, together with the Company and MHC Trust, a Maryland real estate investment trust and a majority owned subsidiary of the Company (“MHC Trust”), the “Transaction Entities”), jointly and severally represents and warrants to RBC Capital Markets as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 7(o) of this Agreement, as of the time of each sale of any Securities pursuant to this Agreement (the “Applicable Time”) and as of each Settlement Date (as defined below), and agrees with RBC Capital Markets, as follows: (1) The Company meets the requirements for use of Form S-3ASR under the Securities Act. The Original Registration Statement was filed by the Company with the Commission not earlier than three years prior to the date hereof. The Original Registration Statement became effective under the Securities Act upon filing with the Commission. The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 under the Securities Act (“Rule 405”), and the Securities have been and remain eligible for registration by the Company on an automatic shelf registration statement. No stop order suspending the effectiveness of the Registration Statement or any part thereof has been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Company, are contemplated by the Commission, and 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 Securities Act has been received by the Company. No order preventing or suspending the use of any preliminary prospectus or the Prospectus has been issued and no proceeding for that purpose has been instituted or, to the knowledge of the Company, threatened or contemplated by the Commission or the securities authority of any jurisdiction. Any request on the part of the Commission for additional information has been complied with. At the respective times the Original Registration Statement and any post-effective amendments thereto became effective, at each deemed effective date with respect to RBC Capital Markets and the Securities pursuant to Rule 430B(f)(2) and at each Settlement Date, the Original Registration Statement and any amendments and supplements thereto complied, complies and will comply in all material respects with the requirements under the Securities Act, and did not, does not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary 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 or at each Settlement 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. Any preliminary prospectus (including the base prospectus filed as part of the Original Registration Statement or any amendment thereto) complied when so filed in all material respects with the Securities Act and any such preliminary prospectus and the Prospectus delivered or made available to RBC Capital Markets for use in connection with the offering of any Securities was and will, at the time of such delivery, be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T. Each Issuer Free Writing Prospectus (as defined below), as of its issue date and as of the relevant Applicable Time and Settlement Date, or until any earlier date that the issuer notified or notifies RBC Capital Markets as described in Section 7(d) hereof, did not, does not and will not (i) include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein that has not been superseded or modified or (ii) when taken together with the Prospectus, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The representations and warranties in the preceding three paragraphs shall not apply to statements in or omissions from the Original Registration Statement, or any post-effective amendment thereto, or the Prospectus, made in reliance upon and in conformity with information furnished to the Company in writing by RBC Capital Markets or any Alternative Manager expressly for use therein (that information being limited to that described in Section 10(b) hereof).
Appears in 1 contract
Sources: Equity Distribution Agreement (Equity Lifestyle Properties Inc)
Representations and Warranties by the Company and the Operating Partnership. Each of the Company and the Operating Partnership (the Operating Partnership, together with the Company and MHC Trust, a Maryland real estate investment trust and a majority owned subsidiary of the Company (“MHC Trust”), the “Transaction Entities”), jointly and severally severally, represents and warrants to RBC Capital Markets as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 7(o) of this Agreement, as of the time of each sale of any Securities pursuant to this Agreement (the “Applicable Time”) and as of each Settlement Date (as defined below), and agrees with RBC Capital Marketseach Underwriter, as followsthe Forward Purchaser and the Forward Seller that:
(1a) The Company meets Registration Statement became effective upon filing with the requirements for use of Form S-3ASR Commission pursuant to Rule 462 under the Securities Act. The Original Registration Statement was filed by the Company with the Commission not earlier than three years prior to the date hereof. The Original Registration Statement became effective under the Securities Act upon filing with the Commission. The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 under the Securities Act (“Rule 405”), and the Securities have been and remain eligible for registration by the Company on an automatic shelf registration statement. No ; no stop order suspending the effectiveness of the Registration Statement or any part thereof has been issued under the Securities Act is in effect; and no proceedings for that such purpose have been instituted or pursuant to Section 8A of the Securities Act are pending before or, to the knowledge of the CompanyCompany or the Operating Partnership, are contemplated threatened by the Commission. The Company is a well-known seasoned issuer (as defined in Rule 405 under the Securities Act) eligible to use the Registration Statement as an automatic shelf registration statement, and no the Company has not received notice of objection of that the Commission objects to the use of such the Registration Statement as an automatic shelf registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2statement.
(b) under the Securities Act has been received by the Company. No order preventing or suspending the use of any preliminary prospectus or the Prospectus has been issued and no proceeding for that purpose has been instituted or, to the knowledge of the Company, threatened or contemplated by the Commission or the securities authority of any jurisdiction. Any request on the part of the Commission for additional information has been complied with. (i) (A) At the respective times the Original Registration Statement and any post-effective amendments each amendment thereto became effective, (B) at each deemed effective date with respect to RBC Capital Markets and the Securities Underwriters pursuant to Rule 430B(f)(2) under the Securities Act, (C) at the Closing Date (as defined below) and (D) at each Settlement Dateall times during which a prospectus is required by the Securities Act to be delivered (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) in connection with any sale of Shares (the “Delivery Period”), the Original Registration Statement and any amendments and supplements thereto complied, complies complied and will comply in all material respects with the requirements of the Securities Act and the rules and regulations under the Securities Act; (ii) the Base Prospectus complied, or will comply, at the time it was, or will be, filed with the Commission, complies as of the date hereof (if filed with the Commission on or prior to the date hereof) and, as of the Time of Sale (as defined below) and did notat all times during the Delivery Period, will comply in all material respects with the rules and regulations under the Securities Act; (iii) the Prospectus will comply, as of the date that such document is filed with the Commission, as of the Time of Sale, as of the Closing Date and at all times during the Delivery Period, in all material respects with the rules and regulations under the Securities Act; (iv) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not and will not contain an any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. Neither the Prospectus nor any amendments or supplements thereto, at the time the Prospectus or any such amendment or supplement was issued or at each Settlement 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. Any preliminary prospectus ; and (including v) the base prospectus Incorporated Documents, when they were filed as part of with the Original Registration Statement or any amendment thereto) complied when so filed Commission, conformed in all material respects with to the Securities requirements of the Exchange Act and the rules and regulations of the Commission thereunder, and any such preliminary prospectus further Incorporated Documents so filed and the Prospectus delivered or made available to RBC Capital Markets for use in connection with the offering of any Securities was and willincorporated by reference, at the time of such delivery, be identical to the electronically transmitted copies thereof when they are filed with the Commission pursuant to ▇▇▇▇▇Commission, except will conform in all material respects to the extent permitted by Regulation S-T. Each Issuer Free Writing Prospectus (as defined below), as of its issue date and as requirements of the relevant Applicable Time Exchange Act and Settlement Date, or until any earlier date that the issuer notified or notifies RBC Capital Markets as described in Section 7(d) hereof, did not, does not rules and will not (i) include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein that has not been superseded or modified or (ii) when taken together with the Prospectus, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light regulations of the circumstances under which they were madeCommission thereunder. For purposes of this Agreement, not misleading. The representations and warranties in the preceding three paragraphs shall not apply to statements in or omissions from term “Time of Sale” means 6:40 p.m. (New York City time) on the Original Registration Statement, or any post-effective amendment thereto, or the Prospectus, made in reliance upon and in conformity with information furnished to the Company in writing by RBC Capital Markets or any Alternative Manager expressly for use therein (that information being limited to that described in Section 10(b) date hereof).
Appears in 1 contract
Representations and Warranties by the Company and the Operating Partnership. Each of the Company and the Operating Partnership (the Operating Partnership, together with the Company and MHC Trust, a Maryland real estate investment trust and a majority owned subsidiary of the Company (“MHC Trust”), the “Transaction Entities”), jointly and severally severally, represents and warrants to RBC Capital Markets as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 7(o) of this Agreement, as of the time of each sale of any Securities pursuant to this Agreement (the “Applicable Time”) and as of each Settlement Date (as defined below), and agrees with RBC Capital Markets, as followseach Manager and each Forward Purchaser that:
(1a) The Company meets Registration Statement became effective upon filing with the requirements for use of Form S-3ASR Commission pursuant to Rule 462 under the Securities Act. The Original Registration Statement was filed by the Company with the Commission not earlier than three years prior to the date hereof. The Original Registration Statement became effective under the Securities Act upon filing with the Commission. The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 under the Securities Act (“Rule 405”), and the Securities have been and remain eligible for registration by the Company on an automatic shelf registration statement. No ; no stop order suspending the effectiveness of the Registration Statement or any part thereof has been issued under the Securities Act is in effect; and no proceedings for that such purpose have been instituted or pursuant to Section 8A of the Securities Act are pending before or, to the knowledge of the CompanyCompany or the Operating Partnership, are contemplated threatened by the Commission. The Company is a well-known seasoned issuer (as defined in Rule 405 under the Securities Act) eligible to use the Registration Statement as an automatic shelf registration statement, and no the Company has not received notice of objection of that the Commission objects to the use of such the Registration Statement as an automatic shelf registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2statement.
(b) under the Securities Act has been received by the Company. No order preventing or suspending the use of any preliminary prospectus or the Prospectus has been issued and no proceeding for that purpose has been instituted or, to the knowledge of the Company, threatened or contemplated by the Commission or the securities authority of any jurisdiction. Any request on the part of the Commission for additional information has been complied with. (i) (A) At the respective times the Original Registration Statement and any post-effective amendments each amendment thereto became effective, (B) at each deemed effective date with respect to RBC Capital Markets and the Securities Managers pursuant to Rule 430B(f)(2) and under the Securities Act (each, a “Deemed Effective Time”), (C) as of each time Shares are sold pursuant to this Agreement (each, a “Time of Sale”), (D) at each Settlement DateDate (as defined below) and (E) at all times during which a prospectus is required by the Securities Act to be delivered (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) in connection with any sale of Shares (the “Delivery Period”), the Original Registration Statement and any amendments and supplements thereto complied, complies complied and will comply in all material respects with the requirements of the Securities Act and the rules and regulations under the Securities Act; (ii) the Base Prospectus complied, or will comply, at the time it was, or will be filed, with the Commission, complies as of the date hereof (if filed with the Commission on or prior to the date hereof) and, as of each Time of Sale and at all times during the Delivery Period, will comply in all material respects with the rules and regulations under the Securities Act; (iii) each of the Prospectus Supplement, any Interim Prospectus Supplement and the Prospectus will comply, as of the date that such document is filed with the Commission, as of each Time of Sale, as of each Settlement Date and at all times during the Delivery Period, in all material respects with the rules and regulations under the Securities Act; (iv) each broadly available road show, if any, when considered together with the General Disclosure Package, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (v) the Incorporated Documents, when they were filed with the Commission, conformed in all material respects to the requirements of the Exchange Act and the rules and regulations of the Commission thereunder, and any further Incorporated Documents so filed and incorporated by reference, when they are filed with the Commission, will conform in all material respects to the requirements of the Exchange Act and the rules and regulations of the Commission thereunder.
(c) (i) As of the date hereof, at the respective times the Registration Statement and each amendment thereto became effective and at each Deemed Effective Time, the Registration Statement did not, does not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. Neither ; (ii) as of each Time of Sale, the Prospectus nor and any amendments or supplements theretoPermitted Free Writing Prospectus then in use, at considered together (collectively, the time the Prospectus or “General Disclosure Package”), did not contain any such amendment or supplement was issued or at each Settlement Date, included or will include an untrue statement of a material fact or omitted or will omit to state a any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Any preliminary prospectus ; (including the base prospectus filed as part of the Original Registration Statement or any amendment theretoiii) complied when so filed in all material respects with the Securities Act and any such preliminary prospectus and the Prospectus delivered or made available to RBC Capital Markets for use in connection with the offering of any Securities was and will, at the time of such delivery, be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T. Each Issuer Free Writing Prospectus (as defined below), as of its issue date and as of date, the relevant Applicable Time and Settlement Date, or until any earlier date that the issuer notified or notifies RBC Capital Markets as described in Section 7(d) hereof, Prospectus did not, does not and will not (i) include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein that has not been superseded or modified or (ii) when taken together with the Prospectus, include 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 representations ; and warranties (iv) at any Settlement Date, the Prospectus (as amended and supplemented at such Settlement Date) did not and 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 preceding three paragraphs light of the circumstances under which they were made, not misleading; provided, however, that this representation and warranty shall not apply to statements in any statement or omissions from the Original Registration Statement, or any post-effective amendment thereto, or the Prospectus, omission made in reliance upon and in conformity with information furnished in writing to the Company by the Managers or the Forward Purchasers expressly for use in the Prospectus or in the General Disclosure Package, it being understood and agreed that the names of the Managers appearing in the first paragraph on the cover page of the Prospectus and the General Disclosure Package and the names of the Forward Purchasers appearing in the third paragraph under the heading “Plan of Distribution” in the Prospectus and the General Disclosure Package constitute the only information furnished in writing by or on behalf of the Managers or the Forward Purchasers for use in the Prospectus and the General Disclosure Package (collectively, the “Counterparty Information”).
(d) Any free writing prospectus that the Company is required to file pursuant to Rule 433(d) under the Securities Act has been, or will be, filed with the Commission in accordance with the requirements of the Securities Act and the applicable rules and regulations of the Commission thereunder. Each free writing prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d) under the Securities Act or that was prepared by or on behalf of or used or referred to by the Company complies or will comply in all material respects with the requirements of the Securities Act and the applicable rules and regulations of the Commission thereunder. Each 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 Managers and the Forward Purchasers, did not, does not and will not include any material information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus. Except for the Permitted Free Writing Prospectuses, if any, furnished to and approved by the Managers and the Forward Purchasers in accordance with Section 6(b), the Company has not prepared, used or referred to, and will not, prepare, use or refer to, any free writing prospectus.
(e) (i)(A) At the time of filing the Registration Statement, (B) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus) and (C) at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c)) made any offer relating to the Shelf Securities in reliance on the exemption of Rule 163 under the Securities Act, the Company was not an “ineligible issuer” as defined in Rule 405 under the Securities Act; and (ii)(A) at the time of filing of the Registration Statement, (B) at the earliest time thereafter that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) under the Securities Act) of the Shares and (C) at the date hereof, the Company was not and is not an “ineligible issuer” as defined in Rule 405 under the Securities Act.
(f) The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the State of Maryland, has the corporate power and authority to own, operate and lease its properties and to conduct its business as described in the Registration Statement, the Prospectus and the General Disclosure Package and to enter into and perform its obligations under this Agreement and any Confirmations, and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company and its subsidiaries, including the Operating Partnership (each, a “Subsidiary,” and together, the “Subsidiaries”), taken as a whole.
(g) Spirit General OP Holdings, LLC (the “General Partner”) has the power and authority, as the sole general partner of the Operating Partnership, to cause the Operating Partnership to enter into and perform the Operating Partnership’s obligations under this Agreement.
(h) Each Subsidiary has been duly formed, is validly existing as a corporation, limited liability company, limited partnership or other type of entity or organization, as the case may be, in good standing under the laws of the jurisdiction in which it is chartered or was organized, and has the power and authority to own, operate and lease its properties and to conduct its business as described in the Registration Statement, the Prospectus and the General Disclosure Package, and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company and the Subsidiaries, taken as a whole. The Company is and will be the sole member of the sole general partner of the Operating Partnership. The General Partner is and will be the sole general partner of the Operating Partnership. The Operating Partnership is the only subsidiary of the Company that meets the definition of a “significant subsidiary” (as such term is defined in Rule 1-02 of Regulation S-X).
(i) This Agreement has been duly authorized, executed and delivered by each of the Company and the Operating Partnership. Each Confirmation has been duly authorized and, when executed and delivered by the Company, will constitute a valid and binding obligation of the Company, enforceable in accordance with its terms.
(j) The shares of capital stock of the Company outstanding prior to the issuance of the Shares and any Confirmation Shares (as defined below) have been duly authorized and are validly issued, fully paid and non-assessable, and the authorized capital stock of the Company conforms in all material respects as to legal matters to the description thereof contained in each of the Registration Statement, the Prospectus and the General Disclosure Package.
(k) The Shares have been duly authorized and, when issued and delivered pursuant to due authorization by the Company’s board of directors (the “Board”) or a duly authorized committee thereof in accordance with the terms of this Agreement, will be duly authorized, validly issued, fully paid and non-assessable, and the issuance of such Shares will not be subject to any preemptive or similar rights. Any shares of Common Stock to be delivered by the Company pursuant to any Confirmation (the “Confirmation Shares”) have been duly authorized for issuance and sale to the applicable Forward Purchaser or any of its affiliates pursuant to such Confirmation and, when issued and delivered by the Company in accordance with such Confirmation upon payment of any consideration required by such Confirmation, will be validly issued, fully paid and non-assessable, and the issuance of such Confirmation Shares will not subject to any preemptive or similar rights. The issuance, sale and/or delivery by the Company of Confirmation Shares to the applicable Forward Purchaser or any of its affiliates pursuant to the terms of any Confirmation in accordance with the terms thereof and the delivery by such Forward Purchaser or any of its affiliates of such Confirmation Shares to close out open borrowings of Common Stock created in the course of the hedging activities by such Forward Purchaser or any of its affiliates relating to such Forward Purchaser’s exposure under such Confirmation do not and will not require registration under the Securities Act.
(l) All of the outstanding partnership interests of the Operating Partnership have been duly authorized and validly issued, fully paid and non-assessable, and, except as otherwise set forth in the Registration Statement, the Prospectus and the General Disclosure Package, all outstanding partnership interests of the Operating Partnership are owned by the Company directly or indirectly, free and clear of any perfected security interest or any other security interests, claims, mortgages, pledges, liens, encumbrances or other restrictions of any kind. Except as set forth in the Registration Statement, the Prospectus and the General Disclosure Package, there are no outstanding options, warrants, or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities or partnership interests of the Operating Partnership. The units of partnership interest in the Operating Partnership (“OP Units”), including without limitation, the OP Units to be issued to the Company in writing connection with the Company’s issuance of Shares and any Confirmation Shares issued pursuant to any Confirmation, will be duly authorized for issuance by RBC Capital Markets the Operating Partnership to the holders or prospective holders thereof, and at the time of their issuance will be validly issued and fully paid. None of the OP Units will be issued in violation of the preemptive or other similar rights of any security holder of the Operating Partnership or any Alternative Manager expressly other person or entity. Except as set forth in the Registration Statement, the Prospectus and the General Disclosure Package, there will be no outstanding options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities or interests for, OP Units or other ownership interests of the Operating Partnership.
(m) All of the outstanding shares of capital stock or other ownership interests of each Subsidiary other than the Operating Partnership have been duly authorized and validly issued, fully paid and non-assessable, and, except as otherwise set forth in the Registration Statement, the Prospectus and the General Disclosure Package, all outstanding shares of capital stock or other ownership interests of the Subsidiaries other than the Operating Partnership are owned by the Company either directly or through Subsidiaries that are wholly owned, free and clear of any perfected security interest or any other security interests, claims, mortgages, pledges, liens, encumbrances or other restrictions of any kind. Except as set forth in the Registration Statement, the Prospectus and the General Disclosure Package, there are no outstanding options, warrants, or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities or interests for use therein capital stock or other ownership interests of any Subsidiary other than the Operating Partnership.
(that information being limited n) The Second Amended and Restated Agreement of Limited Partnership of the Operating Partnership, as amended, dated as of October 3, 2017, has been duly and validly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable in accordance with its terms.
(o) Except pursuant to that the terms of the indebtedness described in Section 10(bor contemplated by the Registration Statement, the Prospectus and the General Disclosure Package, (i) hereof).the Company is not currently prohibited, directly or indirectly, from making any distributions to its stockholders and (ii) no Subsidiary is currently prohibited, directly or indirectly, from paying any dividends or distributions to the Company, from making any other distr
Appears in 1 contract
Sources: Equity Distribution Agreement (Spirit Realty, L.P.)
Representations and Warranties by the Company and the Operating Partnership. Each of the Company and the Operating Partnership (the Operating Partnership, together with the Company and MHC Trust, a Maryland real estate investment trust and a majority owned subsidiary of the Company (“MHC Trust”), the “Transaction Entities”), jointly and severally represents and warrants to RBC Capital Markets RBS as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 7(o) of this Agreement, as of the time of each sale of any Securities pursuant to this Agreement (the “Applicable Time”) and as of each Settlement Date (as defined below), and agrees with RBC Capital MarketsRBS, as follows:
(1) The Company meets the requirements for use of Form S-3ASR under the Securities Act. The Original Registration Statement was filed by the Company with the Commission not earlier than three years prior to the date hereof. The Original Registration Statement became effective under the Securities Act upon filing with the Commission. The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 under the Securities Act (“Rule 405”), and the Securities have been and remain eligible for registration by the Company on an automatic shelf registration statement. No stop order suspending the effectiveness of the Registration Statement or any part thereof has been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Company, are contemplated by the Commission, and 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 Securities Act has been received by the Company. No order preventing or suspending the use of any preliminary prospectus or the Prospectus has been issued and no proceeding for that purpose has been instituted or, to the knowledge of the Company, threatened or contemplated by the Commission or the securities authority of any jurisdiction. Any request on the part of the Commission for additional information has been complied with. At the respective times the Original Registration Statement and any post-effective amendments thereto became effective, at each deemed effective date with respect to RBC Capital Markets RBS and the Securities pursuant to Rule 430B(f)(2) and at each Settlement Date, the Original Registration Statement and any amendments and supplements thereto complied, complies and will comply in all material respects with the requirements under the Securities Act, and did not, does not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary 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 or at each Settlement 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. Any preliminary prospectus (including the base prospectus filed as part of the Original Registration Statement or any amendment thereto) complied when so filed in all material respects with the Securities Act and any such preliminary prospectus and the Prospectus delivered or made available to RBC Capital Markets RBS for use in connection with the offering of any Securities was and will, at the time of such delivery, be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T. Each Issuer Free Writing Prospectus (as defined below), as of its issue date and as of the relevant Applicable Time and Settlement Date, or until any earlier date that the issuer notified or notifies RBC Capital Markets RBS as described in Section 7(d) hereof, did not, does not and will not (i) include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein that has not been superseded or modified or (ii) when taken together with the Prospectus, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The representations and warranties in the preceding three paragraphs shall not apply to statements in or omissions from the Original Registration Statement, or any post-effective amendment thereto, or the Prospectus, made in reliance upon and in conformity with information furnished to the Company in writing by RBC Capital Markets RBS or any Alternative Manager expressly for use therein (that information being limited to that described in Section 10(b) hereof).
Appears in 1 contract
Sources: Equity Distribution Agreement (Equity Lifestyle Properties Inc)
Representations and Warranties by the Company and the Operating Partnership. Each of the Company and the Operating Partnership (the Operating Partnership, together with the Company and MHC Trust, a Maryland real estate investment trust and a majority owned subsidiary of the Company (“MHC Trust”), the “Transaction Entities”), jointly and severally represents and warrants to RBC Capital Markets ▇▇▇▇▇ Fargo Securities as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 7(o) of this Agreement, as of the time of each sale of any Securities pursuant to this Agreement (the “Applicable Time”) and as of each Settlement Date (as defined below), and agrees with RBC Capital Markets▇▇▇▇▇ Fargo Securities, as follows:
(1) The Company meets the requirements for use of Form S-3ASR under the Securities Act. The Original Registration Statement was filed by the Company with the Commission not earlier than three years prior to the date hereof. The Original Registration Statement became effective under the Securities Act upon filing with the Commission. The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 under the Securities Act (“Rule 405”), and the Securities have been and remain eligible for registration by the Company on an automatic shelf registration statement. No stop order suspending the effectiveness of the Registration Statement or any part thereof has been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Company, are contemplated by the Commission, and 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 Securities Act has been received by the Company. No order preventing or suspending the use of any preliminary prospectus or the Prospectus has been issued and no proceeding for that purpose has been instituted or, to the knowledge of the Company, threatened or contemplated by the Commission or the securities authority of any jurisdiction. Any request on the part of the Commission for additional information has been complied with. At the respective times the Original Registration Statement and any post-effective amendments thereto became effective, at each deemed effective date with respect to RBC Capital Markets ▇▇▇▇▇ Fargo Securities and the Securities pursuant to Rule 430B(f)(2) and at each Settlement Date, the Original Registration Statement and any amendments and supplements thereto complied, complies and will comply in all material respects with the requirements under the Securities Act, and did not, does not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary 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 or at each Settlement 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. Any preliminary prospectus (including the base prospectus filed as part of the Original Registration Statement or any amendment thereto) complied when so filed in all material respects with the Securities Act and any such preliminary prospectus and the Prospectus delivered or made available to RBC Capital Markets ▇▇▇▇▇ Fargo Securities for use in connection with the offering of any Securities was and will, at the time of such delivery, be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T. Each Issuer Free Writing Prospectus (as defined below), as of its issue date and as of the relevant Applicable Time and Settlement Date, or until any earlier date that the issuer notified or notifies RBC Capital Markets ▇▇▇▇▇ Fargo Securities as described in Section 7(d) hereof, did not, does not and will not (i) include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein that has not been superseded or modified or (ii) when taken together with the Prospectus, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The representations and warranties in the preceding three paragraphs shall not apply to statements in or omissions from the Original Registration Statement, or any post-effective amendment thereto, or the Prospectus, made in reliance upon and in conformity with information furnished to the Company in writing by RBC Capital Markets ▇▇▇▇▇ Fargo Securities or any Alternative Manager expressly for use therein (that information being limited to that described in Section 10(b) hereof).
Appears in 1 contract
Sources: Equity Distribution Agreement (Equity Lifestyle Properties Inc)
Representations and Warranties by the Company and the Operating Partnership. Each of the The Company and the Operating Partnership (the Operating Partnership, together with the Company and MHC Trust, a Maryland real estate investment trust and a majority owned subsidiary of the Company (“MHC Trust”), the “Transaction Entities”), each jointly and severally represents and warrants to RBC Capital Markets ▇▇▇▇▇▇▇ ▇▇▇▇▇ as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 7(o) of this Agreement), as of the time of each sale of any Securities or any securities pursuant to this Agreement (the each, an “Applicable Time”) and as of each Settlement Date (as defined below)Date, and agrees with RBC Capital Markets▇▇▇▇▇▇▇ ▇▇▇▇▇, as follows:
(1) The Status as a Well-Known Seasoned Issuer; Registration Statement Effective; Conform to Securities Act; No Misleading Statements; Conformity with ▇▇▇▇▇ filings.
(A) At the time of filing the Original Registration Statement, (B) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), (C) at the time the Company meets or any person acting on its behalf (within the requirements meaning, for use this clause only, of Form S-3ASR Rule 163(c) under the Securities Act. The Original Registration Statement was filed by the Company with the Commission not earlier than three years prior ) made any offer relating to the date hereof. The Original Registration Statement became effective Securities in reliance on the exemption of Rule 163 under the Securities Act upon filing with (“Rule 163”), (D) at the Commissionearliest time that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) under the Securities Act) of the Securities and (E) at the date hereof, the Company was, is and will be a “well-known seasoned issuer” as defined in Rule 405 under the Securities 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 under the Securities Act (“Rule 405”), and the Securities Securities, since their registration on the Registration Statement, have been and remain eligible for registration by the Company on an a Rule 405 “automatic shelf registration statement.” The Company has not received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting to the use of the automatic shelf registration statement form. The Company has paid, or if the Prospectus Supplement has not yet been filed with the Commission will pay, the required Commission filing fees relating to the Securities within the time required by Rule 456(b)(1)(i) under the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Securities Act (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of the Prospectus). The Original Registration Statement became effective upon filing under Rule 462(e) on April 13, 2011, and any post-effective amendment thereto also became effective upon filing under Rule 462(e). No stop order suspending the effectiveness of the Registration Statement or any part thereof has been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the CompanyCompany or the Operating Partnership, are contemplated by the Commission, 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 Securities Act has been received by the Company. No order preventing or suspending the use of any preliminary prospectus or the Prospectus has been issued and no proceeding for that purpose has been instituted or, to the knowledge of the Company, threatened or contemplated by the Commission or the securities authority of any jurisdiction. Any request on the part of the Commission for additional information has been complied with. Any offer that is a written communication relating to the Securities made prior to the filing of the Original Registration Statement by the Company or any person acting on its behalf (within the meaning, for this paragraph only, of Rule 163(c)) has been filed (unless exempt from filing pursuant to Rule 163) with the Commission in accordance with the exemption provided by 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 5(c) of the Securities Act provided by Rule 163. At the respective times the Original Registration Statement and any post-effective amendments amendment thereto became effective, at each deemed effective date with respect to RBC Capital Markets ▇▇▇▇▇▇▇ ▇▇▇▇▇ and the Securities pursuant to Rule 430B(f)(2) ), and at each relevant Settlement Date, the Original Registration Statement and any amendments and supplements thereto complied, complies and will comply in all material respects with the requirements under of the Securities Act, and did not, does not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. Neither The Prospectus and each amendment or supplement thereto, if any, at the time the Prospectus or any such amendment or supplement is issued and at each relevant Settlement Date, complied, complies and will comply, in all material respects with the requirements of the Securities Act and neither the Prospectus nor any amendments or supplements thereto, at the time the Prospectus or any such amendment or supplement was issued issued, or at each any Settlement Date, included included, includes or will include an untrue statement of a material fact or omitted omitted, omits or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Any preliminary prospectus (including the base prospectus filed as part of the Original Registration Statement or any amendment thereto) complied when so filed in all material respects with the Securities Act and any such preliminary prospectus and the Each Prospectus delivered or made available to RBC Capital Markets ▇▇▇▇▇▇▇ ▇▇▇▇▇ for use in connection with the offering of any Securities was and will, at the time of such delivery, be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T. Each Issuer Free Writing Prospectus (as defined below), as of its issue date and as of the relevant Applicable Time and Settlement Date, or until any earlier date that the issuer notified or notifies RBC Capital Markets ▇▇▇▇▇▇▇ ▇▇▇▇▇ as described in Section 7(d) hereof), did not, does not and will not (i) include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein and any preliminary or other prospectus deemed to be a part thereof that has not been superseded or modified or (ii) when taken together with the Prospectus, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. As used herein, an “Issuer Free Writing Prospectus” means any “issuer free writing prospectus,” as defined in Rule 433 of the Securities Act (“Rule 433”), relating to the Securities that (i) is required to be filed with the Commission by the Company, (ii) is a “road show” that is a “written communication” within the meaning of Rule 433(d)(8)(i) whether or not required to be filed with the Commission, or (iii) is exempt from filing pursuant to Rule 433(d)(5)(i) because it contains a description of the Securities or of the offering that does not reflect the final terms, and all free writing prospectuses that are listed on Exhibit G attached hereto, in each case in the form furnished (electronically or otherwise) to ▇▇▇▇▇▇▇ ▇▇▇▇▇ for use in connection with the offering of the Securities. The representations and warranties in the preceding three paragraphs this Section 5(a)(1) shall not apply to statements in or omissions from the Original Registration Statement, the Prospectus or any post-effective amendment thereto, or the Prospectus, Issuer Free Writing Prospectus made in reliance upon and in conformity with written information furnished to the Company in writing by RBC Capital Markets or any Alternative Manager ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use therein (that information being limited to that described in Section 10(b) hereof)therein.
Appears in 1 contract
Sources: Equity Distribution Agreement (Pebblebrook Hotel Trust)
Representations and Warranties by the Company and the Operating Partnership. Each of the Company and the Operating Partnership (the Operating Partnership, together with the Company and MHC Trust, a Maryland real estate investment trust and a majority owned subsidiary of the Company (“MHC Trust”), the “Transaction Entities”), jointly and severally severally, represents and warrants to RBC Capital Markets as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 7(o) of this Agreement, as of the time of each sale of any Securities pursuant to this Agreement (the “Applicable Time”) and as of each Settlement Date (as defined below), and agrees with RBC Capital Marketseach Underwriter, as followsForward Purchaser and Forward Seller that:
(1a) The Company meets Registration Statement became effective upon filing with the requirements for use of Form S-3ASR Commission pursuant to Rule 462 under the Securities Act. The Original Registration Statement was filed by the Company with the Commission not earlier than three years prior to the date hereof. The Original Registration Statement became effective under the Securities Act upon filing with the Commission. The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 under the Securities Act (“Rule 405”), and the Securities have been and remain eligible for registration by the Company on an automatic shelf registration statement. No ; no stop order suspending the effectiveness of the Registration Statement or any part thereof has been issued under the Securities Act is in effect; and no proceedings for that such purpose have been instituted or pursuant to Section 8A of the Securities Act are pending before or, to the knowledge of the CompanyCompany or the Operating Partnership, are contemplated threatened by the Commission. The Company is a well-known seasoned issuer (as defined in Rule 405 under the Securities Act) eligible to use the Registration Statement as an automatic shelf registration statement, and no the Company has not received notice of objection of that the Commission objects to the use of such the Registration Statement as an automatic shelf registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2statement.
(b) under the Securities Act has been received by the Company. No order preventing or suspending the use of any preliminary prospectus or the Prospectus has been issued and no proceeding for that purpose has been instituted or, to the knowledge of the Company, threatened or contemplated by the Commission or the securities authority of any jurisdiction. Any request on the part of the Commission for additional information has been complied with. (i) (A) At the respective times the Original Registration Statement and any post-effective amendments each amendment thereto became effective, (B) at each deemed effective date with respect to RBC Capital Markets and the Securities Underwriters pursuant to Rule 430B(f)(2) under the Securities Act, (C) at the Closing Date (as defined below) and (D) at each Settlement Dateall times during which a prospectus is required by the Securities Act to be delivered (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) in connection with any sale of Shares (the “Delivery Period”), the Original Registration Statement and any amendments and supplements thereto complied, complies complied and will comply in all material respects with the requirements of the Securities Act and the rules and regulations under the Securities Act; (ii) the Base Prospectus complied, or will comply, at the time it was, or will be, filed with the Commission, complies as of the date hereof (if filed with the Commission on or prior to the date hereof) and, as of the Time of Sale (as defined below) and did notat all times during the Delivery Period, will comply in all material respects with the rules and regulations under the Securities Act; (iii) the Prospectus will comply, as of the date that such document is filed with the Commission, as of the Time of Sale, as of the Closing Date and at all times during the Delivery Period, in all material respects with the rules and regulations under the Securities Act; (iv) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not and will not contain an any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. Neither the Prospectus nor any amendments or supplements thereto, at the time the Prospectus or any such amendment or supplement was issued or at each Settlement 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. Any preliminary prospectus ; and (including v) the base prospectus Incorporated Documents, when they were filed as part of with the Original Registration Statement or any amendment thereto) complied when so filed Commission, conformed in all material respects with to the Securities requirements of the Exchange Act and the rules and regulations of the Commission thereunder, and any such preliminary prospectus further Incorporated Documents so filed and the Prospectus delivered or made available to RBC Capital Markets for use in connection with the offering of any Securities was and willincorporated by reference, at the time of such delivery, be identical to the electronically transmitted copies thereof when they are filed with the Commission pursuant to ▇▇▇▇▇Commission, except will conform in all material respects to the extent permitted by Regulation S-T. Each Issuer Free Writing Prospectus (as defined below), as of its issue date and as requirements of the relevant Applicable Time Exchange Act and Settlement Date, or until any earlier date that the issuer notified or notifies RBC Capital Markets as described in Section 7(d) hereof, did not, does not rules and will not (i) include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein that has not been superseded or modified or (ii) when taken together with the Prospectus, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light regulations of the circumstances under which they were madeCommission thereunder. For purposes of this Agreement, not misleading. The representations and warranties in the preceding three paragraphs shall not apply to statements in or omissions from term “Time of Sale” means 7:05 p.m. (New York City time) on the Original Registration Statement, or any post-effective amendment thereto, or the Prospectus, made in reliance upon and in conformity with information furnished to the Company in writing by RBC Capital Markets or any Alternative Manager expressly for use therein (that information being limited to that described in Section 10(b) date hereof).
Appears in 1 contract
Representations and Warranties by the Company and the Operating Partnership. Each of the The Company and the Operating Partnership (the Operating Partnership, together with the Company and MHC Trust, a Maryland real estate investment trust and a majority owned subsidiary of the Company (“MHC Trust”), the “Transaction Entities”), each jointly and severally represents and warrants to RBC Capital Markets ▇▇▇▇▇▇▇ ▇▇▇▇▇ as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 7(o) of this Agreement), as of the time of each sale of any Securities or any securities pursuant to this Agreement (the each, an “Applicable Time”) and as of each Settlement Date (as defined below)Date, and agrees with RBC Capital Markets▇▇▇▇▇▇▇ ▇▇▇▇▇, as follows:
(1) The Status as a Well-Known Seasoned Issuer; Registration Statement Effective; Conform to Securities Act; No Misleading Statements; Conformity with ▇▇▇▇▇ filings.
(A) At the time of filing the Original Registration Statement, (B) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), (C) at the time the Company meets or any person acting on its behalf (within the requirements meaning, for use this clause only, of Form S-3ASR Rule 163(c) under the Securities Act. The Original Registration Statement was filed by the Company with the Commission not earlier than three years prior ) made any offer relating to the date hereof. The Original Registration Statement became effective Securities in reliance on the exemption of Rule 163 under the Securities Act upon filing with (“Rule 163”), (D) at the Commissionearliest time that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) under the Securities Act) of the Securities and (E) at the date hereof, the Company was, is and will be a “well-known seasoned issuer” as defined in Rule 405 under the Securities 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 under the Securities Act (“Rule 405”), and the Securities Securities, since their registration on the Registration Statement, have been and remain eligible for registration by the Company on an a Rule 405 “automatic shelf registration statement.” The Company has not received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting to the use of the automatic shelf registration statement form. The Company has paid, or if the Prospectus Supplement has not yet been filed with the Commission will pay, the required Commission filing fees relating to the Securities within the time required by Rule 456(b)(1)(i) under the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Securities Act (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of the Prospectus). The Original Registration Statement became effective upon filing under Rule 462(e) on March 4, 2014, and any post-effective amendment thereto also became effective upon filing under Rule 462(e). No stop order suspending the effectiveness of the Registration Statement or any part thereof has been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the CompanyCompany or the Operating Partnership, are contemplated by the Commission, 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 Securities Act has been received by the Company. No order preventing or suspending the use of any preliminary prospectus or the Prospectus has been issued and no proceeding for that purpose has been instituted or, to the knowledge of the Company, threatened or contemplated by the Commission or the securities authority of any jurisdiction. Any request on the part of the Commission for additional information has been complied with. Any offer that is a written communication relating to the Securities made prior to the filing of the Original Registration Statement by the Company or any person acting on its behalf (within the meaning, for this paragraph only, of Rule 163(c)) has been filed (unless exempt from filing pursuant to Rule 163) with the Commission in accordance with the exemption provided by 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 5(c) of the Securities Act provided by Rule 163. At the respective times the Original Registration Statement and any post-effective amendments amendment thereto became effective, at each deemed effective date with respect to RBC Capital Markets ▇▇▇▇▇▇▇ ▇▇▇▇▇ and the Securities pursuant to Rule 430B(f)(2) ), and at each relevant Settlement Date, the Original Registration Statement and any amendments and supplements thereto complied, complies and will comply in all material respects with the requirements under of the Securities Act, and did not, does not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. Neither The Prospectus and each amendment or supplement thereto, if any, at the time the Prospectus or any such amendment or supplement is issued and at each relevant Settlement Date, complied, complies and will comply, in all material respects with the requirements of the Securities Act and neither the Prospectus nor any amendments or supplements thereto, at the time the Prospectus or any such amendment or supplement was issued issued, or at each any Settlement Date, included included, includes or will include an untrue statement of a material fact or omitted omitted, omits or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Any preliminary prospectus (including the base prospectus filed as part of the Original Registration Statement or any amendment thereto) complied when so filed in all material respects with the Securities Act and any such preliminary prospectus and the Each Prospectus delivered or made available to RBC Capital Markets ▇▇▇▇▇▇▇ ▇▇▇▇▇ for use in connection with the offering of any Securities was and will, at the time of such delivery, be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T. Each Issuer Free Writing Prospectus (as defined below), as of its issue date and as of the relevant Applicable Time and Settlement Date, or until any earlier date that the issuer notified or notifies RBC Capital Markets ▇▇▇▇▇▇▇ ▇▇▇▇▇ as described in Section 7(d) hereof), did not, does not and will not (i) include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein and any preliminary or other prospectus deemed to be a part thereof that has not been superseded or modified or (ii) when taken together with the Prospectus, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. As used herein, an “Issuer Free Writing Prospectus” means any “issuer free writing prospectus,” as defined in Rule 433 of the Securities Act (“Rule 433”), relating to the Securities that (i) is required to be filed with the Commission by the Company, (ii) is a “road show” that is a “written communication” within the meaning of Rule 433(d)(8)(i) whether or not required to be filed with the Commission, or (iii) is exempt from filing pursuant to Rule 433(d)(5)(i) because it contains a description of the Securities or of the offering that does not reflect the final terms, and all free writing prospectuses that are listed on Exhibit G attached hereto, in each case in the form furnished (electronically or otherwise) to ▇▇▇▇▇▇▇ ▇▇▇▇▇ for use in connection with the offering of the Securities. The representations and warranties in the preceding three paragraphs this Section 5(a)(1) shall not apply to statements in or omissions from the Original Registration Statement, the Prospectus or any post-effective amendment thereto, or the Prospectus, Issuer Free Writing Prospectus made in reliance upon and in conformity with written information furnished to the Company in writing by RBC Capital Markets or any Alternative Manager ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use therein (that information being limited to that described in Section 10(b) hereof)therein.
Appears in 1 contract
Sources: Equity Distribution Agreement (Pebblebrook Hotel Trust)
Representations and Warranties by the Company and the Operating Partnership. Each of the Company and the Operating Partnership (the Operating Partnership, together with the Company and MHC Trust, a Maryland real estate investment trust and a majority owned subsidiary of the Company (“MHC Trust”), the “Transaction Entities”), jointly and severally represents and warrants to RBC Capital Markets BofA ▇▇▇▇▇▇▇ ▇▇▇▇▇ as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 7(o) of this Agreement, as of the time of each sale of any Securities pursuant to this Agreement (the “Applicable Time”) and as of each Settlement Date (as defined below), and agrees with RBC Capital MarketsBofA ▇▇▇▇▇▇▇ ▇▇▇▇▇, as follows:
(1) The Company meets the requirements for use of Form S-3ASR under the Securities Act. The Original Registration Statement was filed by the Company with the Commission not earlier than three years prior to the date hereof. The Original Registration Statement became effective under the Securities Act upon filing with the Commission. The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 under the Securities Act (“Rule 405”), and the Securities have been and remain eligible for registration by the Company on an automatic shelf registration statement. No stop order suspending the effectiveness of the Registration Statement or any part thereof has been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Company, are contemplated by the Commission, and 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 Securities Act has been received by the Company. No order preventing or suspending the use of any preliminary prospectus or the Prospectus has been issued and no proceeding for that purpose has been instituted or, to the knowledge of the Company, threatened or contemplated by the Commission or the securities authority of any jurisdiction. Any request on the part of the Commission for additional information has been complied with. At the respective times the Original Registration Statement and any post-effective amendments thereto became effective, at each deemed effective date with respect to RBC Capital Markets BofA ▇▇▇▇▇▇▇ ▇▇▇▇▇ and the Securities pursuant to Rule 430B(f)(2) and at each Settlement Date, the Original Registration Statement and any amendments and supplements thereto complied, complies and will comply in all material respects with the requirements under the Securities Act, and did not, does not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary 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 or at each Settlement 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. Any preliminary prospectus (including the base prospectus filed as part of the Original Registration Statement or any amendment thereto) complied when so filed in all material respects with the Securities Act and any such preliminary prospectus and the Prospectus delivered or made available to RBC Capital Markets BofA ▇▇▇▇▇▇▇ ▇▇▇▇▇ for use in connection with the offering of any Securities was and will, at the time of such delivery, be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T. Each Issuer Free Writing Prospectus (as defined below), as of its issue date and as of the relevant Applicable Time and Settlement Date, or until any earlier date that the issuer notified or notifies RBC Capital Markets BofA ▇▇▇▇▇▇▇ ▇▇▇▇▇ as described in Section 7(d) hereof, did not, does not and will not (i) include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein that has not been superseded or modified or (ii) when taken together with the Prospectus, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The representations and warranties in the preceding three paragraphs shall not apply to statements in or omissions from the Original Registration Statement, or any post-effective amendment thereto, or the Prospectus, made in reliance upon and in conformity with information furnished to the Company in writing by RBC Capital Markets BofA ▇▇▇▇▇▇▇ ▇▇▇▇▇ or any Alternative Manager expressly for use therein (that information being limited to that described in Section 10(b) hereof).
Appears in 1 contract
Sources: Equity Distribution Agreement (Equity Lifestyle Properties Inc)
Representations and Warranties by the Company and the Operating Partnership. Each of the The Company and the Operating Partnership (the Operating Partnership, together with the Company and MHC Trust, a Maryland real estate investment trust and a majority owned subsidiary of the Company (“MHC Trust”), the “Transaction Entities”), jointly and severally represents severally, represent and warrants warrant to RBC Capital Markets each of the Underwriters, as of the date hereof and as of each Representation Date hereof, the Applicable Time (as defined below) on which a certificate is required to be delivered pursuant to Section 7(o) of this Agreementhereinafter defined), the Closing Time (as of the time of each sale of any Securities pursuant to this Agreement (the “Applicable Time”hereinafter defined) and as each Date of each Settlement Date Delivery, if any (as defined belowhereinafter defined) (in each case, a “Representation Date”), and agrees with RBC Capital Markets, as follows:
(1i) The Company meets the requirements for use of for use of Form S-3ASR S-3 under the Securities 1933 Act. The Original Registration Statement was filed by the Company with the Commission not earlier than three years prior to the date hereof. The Original Registration Statement became effective under the Securities Act upon filing with the Commission. The Registration Statement is an “automatic shelf and any registration statement,” as defined in statement filed pursuant to Rule 405 under 462(b) of the Securities Act (a “Rule 405462(b) Registration Statement”)) has become effective under the 1933 Act, and the Securities have been and remain eligible for registration by the Company on an automatic shelf registration statement. No no stop order suspending the effectiveness of the Registration Statement or any Rule 462(b) Registration Statement or any part thereof has been issued under the Securities 1933 Act and no proceedings for that purpose or pursuant to Section 8A of the 1933 Act have been instituted or are pending or, to the knowledge of the Company, are contemplated by the Commission, 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 Securities Act has been received by the Company. No order preventing or suspending the use of any preliminary prospectus or the Prospectus has been issued and no proceeding for that purpose has been instituted or, to the knowledge of the Company, threatened or contemplated by the Commission or the state securities authority of any jurisdiction. Any , and any request on the part of the Commission for additional information has been complied with. At the respective times the Original Registration Statement and any post-effective amendments thereto became effective, effective and at each deemed effective date with respect to RBC Capital Markets and the Securities Underwriters pursuant to Rule 430B(f)(2) and at each Settlement Dateof the 1933 Act Regulations, the Original Registration Statement and any amendments and supplements thereto complied, complies comply and will comply in all material respects with the requirements under of the Securities Act1933 Act and the 1933 Act Regulations, and did not, does do not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. Neither the Prospectus nor any amendments or supplements thereto, at the time the Prospectus or any such amendment or supplement was issued or first used, at each Settlement Datethe Closing Time and at any Date of Delivery, included included, includes or will include an untrue statement of a material fact or omitted omitted, omits or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Any preliminary prospectus (including the base prospectus filed as part of the Original Registration Statement or any amendment thereto) complied when so filed with the Commission in all material respects with the Securities 1933 Act and the 1933 Act Regulations and any such preliminary prospectus was, and the Prospectus delivered or made available to RBC Capital Markets the Underwriters for use in connection with the this offering of any Securities was and will, will be at the time of such delivery, be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇E▇▇▇▇, except to the extent permitted by Regulation S-T. Each T.
(ii) As of the Applicable Time, neither (x) any Issuer Free Writing Prospectus (as defined below), as of its issue date and as of ) identified on Schedule B hereto issued at or prior to the relevant Applicable Time and Settlement Datethe Statutory Prospectus (as defined below), or until all considered together (collectively, the “General Disclosure Package”), nor (y) any earlier date that the issuer notified or notifies RBC Capital Markets as described in Section 7(d) hereofIssuer Free Writing Prospectus not identified on Schedule B hereto, did not, does not and will not (i) include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein that has not been superseded or modified or (ii) when taken considered together with the ProspectusGeneral Disclosure Package, include an included any untrue statement of a material fact or omit omitted to state a any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The representations and warranties in the preceding three paragraphs shall not apply to statements in or omissions from the Original Registration Statement, Statement or any post-effective amendment thereto, or any preliminary prospectus, the Prospectus, or any amendments or supplements thereto, any Issuer Free Writing Prospectus or the General Disclosure Package made in reliance upon and in conformity with information furnished to the Company in writing by RBC Capital Markets or on behalf of any Alternative Manager Underwriter through the Representatives expressly for use therein in the Registration Statement (that information being limited to that described including the prospectus filed with the Original Registration Statement) or any post-effective amendment thereto, any preliminary prospectus, the Prospectus, or any amendments or supplements thereto, any Issuer Free Writing Prospectus or the General Disclosure Package. As used in Section 10(b) hereof).this subsection and elsewhere in this Agreement:
Appears in 1 contract
Representations and Warranties by the Company and the Operating Partnership. Each of the Company and the Operating Partnership (the Operating Partnership, together with the Company and MHC Trust, a Maryland real estate investment trust and a majority owned subsidiary of the Company (“MHC Trust”), the “Transaction Entities”), jointly and severally severally, represents and warrants to RBC Capital Markets as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 7(o) of this Agreement, as of the time of each sale of any Securities pursuant to this Agreement (the “Applicable Time”) and as of each Settlement Date (as defined below), and agrees with RBC Capital Markets, as followseach Manager and each Forward Purchaser that:
(1a) The Company meets Registration Statement became effective upon filing with the requirements for use of Form S-3ASR Commission pursuant to Rule 462 under the Securities Act. The Original Registration Statement was filed by the Company with the Commission not earlier than three years prior to the date hereof. The Original Registration Statement became effective under the Securities Act upon filing with the Commission. The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 under the Securities Act (“Rule 405”), and the Securities have been and remain eligible for registration by the Company on an automatic shelf registration statement. No ; no stop order suspending the effectiveness of the Registration Statement or any part thereof has been issued under the Securities Act is in effect; and no proceedings for that such purpose have been instituted or pursuant to Section 8A of the Securities Act are pending before or, to the knowledge of the CompanyCompany or the Operating Partnership, are contemplated threatened by the Commission. The Company is a well-known seasoned issuer (as defined in Rule 405 under the Securities Act) eligible to use the Registration Statement as an automatic shelf registration statement, and no the Company has not received notice of objection of that the Commission objects to the use of such the Registration Statement as an automatic shelf registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2statement.
(b) under the Securities Act has been received by the Company. No order preventing or suspending the use of any preliminary prospectus or the Prospectus has been issued and no proceeding for that purpose has been instituted or, to the knowledge of the Company, threatened or contemplated by the Commission or the securities authority of any jurisdiction. Any request on the part of the Commission for additional information has been complied with. (i) (A) At the respective times the Original Registration Statement and any post-effective amendments each amendment thereto became effective, (B) at each deemed effective date with respect to RBC Capital Markets and the Securities Managers pursuant to Rule 430B(f)(2) and under the Securities Act (each, a “Deemed Effective Time”), (C) as of each time Shares are sold pursuant to this Agreement (each, a “Time of Sale”), (D) at each Settlement DateDate (as defined below) and (E) at all times during which a prospectus is required by the Securities Act to be delivered (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) in connection with any sale of Shares (the “Delivery Period”), the Original Registration Statement and any amendments and supplements thereto complied, complies complied and will comply in all material respects with the requirements of the Securities Act and the rules and regulations under the Securities Act; (ii) the Base Prospectus complied, or will comply, at the time it was, or will be filed, with the Commission, complies as of the date hereof (if filed with the Commission on or prior to the date hereof) and, as of each Time of Sale and at all times during the Delivery Period, will comply in all material respects with the rules and regulations under the Securities Act; (iii) each of the Prospectus Supplement, any Interim Prospectus Supplement and the Prospectus will comply, as of the date that such document is filed with the Commission, as of each Time of Sale, as of each Settlement Date and at all times during the Delivery Period, in all material respects with the rules and regulations under the Securities Act; (iv) each broadly available road show, if any, when considered together with the General Disclosure Package, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (v) the Incorporated Documents, when they were filed with the Commission, conformed in all material respects to the requirements of the Exchange Act and the rules and regulations of the Commission thereunder, and any further Incorporated Documents so filed and incorporated by reference, when they are filed with the Commission, will conform in all material respects to the requirements of the Exchange Act and the rules and regulations of the Commission thereunder.
(c) (i) As of the date hereof, at the respective times the Registration Statement and each amendment thereto became effective and at each Deemed Effective Time, the Registration Statement did not, does not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. Neither ; (ii) as of each Time of Sale, the Prospectus nor and any amendments or supplements theretoPermitted Free Writing Prospectus then in use, at considered together (collectively, the time the Prospectus or “General Disclosure Package”), did not contain any such amendment or supplement was issued or at each Settlement Date, included or will include an untrue statement of a material fact or omitted or will omit to state a any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Any preliminary prospectus ; (including the base prospectus filed as part of the Original Registration Statement or any amendment theretoiii) complied when so filed in all material respects with the Securities Act and any such preliminary prospectus and the Prospectus delivered or made available to RBC Capital Markets for use in connection with the offering of any Securities was and will, at the time of such delivery, be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T. Each Issuer Free Writing Prospectus (as defined below), as of its issue date and as of date, the relevant Applicable Time and Settlement Date, or until any earlier date that the issuer notified or notifies RBC Capital Markets as described in Section 7(d) hereof, Prospectus did not, does not and will not (i) include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein that has not been superseded or modified or (ii) when taken together with the Prospectus, include 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 representations ; and warranties (iv) at any Settlement Date, the Prospectus (as amended and supplemented at such Settlement Date) did not and 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 preceding three paragraphs light of the circumstances under which they were made, not misleading; provided, however, that this representation and warranty shall not apply to statements in any statement or omissions from the Original Registration Statement, or any post-effective amendment thereto, or the Prospectus, omission made in reliance upon and in conformity with information furnished in writing to the Company by the Managers expressly for use in the Prospectus or in the General Disclosure Package, it being understood and agreed that the names of the Managers appearing in the first paragraph on the cover page of the Prospectus and the General Disclosure Package constitute the only information furnished in writing by or on behalf of the Managers for use in the Prospectus and the General Disclosure Package (collectively, the “Counterparty Information”).
(d) Any free writing prospectus that the Company is required to file pursuant to Rule 433(d) under the Securities Act has been, or will be, filed with the Commission in accordance with the requirements of the Securities Act and the applicable rules and regulations of the Commission thereunder. Each free writing prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d) under the Securities Act or that was prepared by or on behalf of or used or referred to by the Company complies or will comply in all material respects with the requirements of the Securities Act and the applicable rules and regulations of the Commission thereunder. Each 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 Managers and the Forward Purchasers, did not, does not and will not include any material information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus. Except for the Permitted Free Writing Prospectuses, if any, furnished to and approved by the Managers and the Forward Purchasers in accordance with Section 6(b), the Company has not prepared, used or referred to, and will not, prepare, use or refer to, any free writing prospectus.
(e) (i)(A) At the time of filing the Registration Statement, (B) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus) and (C) at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c)) made any offer relating to the Shelf Securities in reliance on the exemption of Rule 163 under the Securities Act, the Company was not an “ineligible issuer” as defined in Rule 405 under the Securities Act; and (ii)(A) at the time of filing of the Registration Statement, (B) at the earliest time thereafter that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) under the Securities Act) of the Shares and (C) at the date hereof, the Company was not and is not an “ineligible issuer” as defined in Rule 405 under the Securities Act.
(f) The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the State of Maryland, has the corporate power and authority to own, operate and lease its properties and to conduct its business as described in the Registration Statement, the Prospectus and the General Disclosure Package and to enter into and perform its obligations under this Agreement and any Confirmations, and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company and its subsidiaries, including the Operating Partnership (each, a “Subsidiary,” and together, the “Subsidiaries”), taken as a whole.
(g) Spirit General OP Holdings, LLC (the “General Partner”) has the power and authority, as the sole general partner of the Operating Partnership, to cause the Operating Partnership to enter into and perform the Operating Partnership’s obligations under this Agreement.
(h) Each Subsidiary has been duly formed, is validly existing as a corporation, limited liability company, limited partnership or other type of entity or organization, as the case may be, in good standing under the laws of the jurisdiction in which it is chartered or was organized, and has the power and authority to own, operate and lease its properties and to conduct its business as described in the Registration Statement, the Prospectus and the General Disclosure Package, and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company and the Subsidiaries, taken as a whole. The Company is and will be the sole member of the sole general partner of the Operating Partnership. The General Partner is and will be the sole general partner of the Operating Partnership. The Operating Partnership is the only subsidiary of the Company that meets the definition of a “significant subsidiary” (as such term is defined in Rule 1-02 of Regulation S-X).
(i) This Agreement has been duly authorized, executed and delivered by each of the Company and the Operating Partnership. Each Confirmation has been duly authorized and, when executed and delivered by the Company, will constitute a valid and binding obligation of the Company, enforceable in accordance with its terms.
(j) The shares of capital stock of the Company outstanding prior to the issuance of the Shares and any Confirmation Shares (as defined below) have been duly authorized and are validly issued, fully paid and non-assessable, and the authorized capital stock of the Company conforms in all material respects as to legal matters to the description thereof contained in each of the Registration Statement, the Prospectus and the General Disclosure Package.
(k) The Shares have been duly authorized and, when issued and delivered pursuant to due authorization by the Company’s board of directors (the “Board”) or a duly authorized committee thereof in accordance with the terms of this Agreement, will be duly authorized, validly issued, fully paid and non-assessable, and the issuance of such Shares will not be subject to any preemptive or similar rights. Any shares of Common Stock to be delivered by the Company pursuant to any Confirmation (the “Confirmation Shares”) have been duly authorized for issuance and sale to the applicable Forward Purchaser or any of its affiliates pursuant to such Confirmation and, when issued and delivered by the Company in accordance with such Confirmation upon payment of any consideration required by such Confirmation, will be validly issued, fully paid and non-assessable, and the issuance of such Confirmation Shares will not subject to any preemptive or similar rights. The issuance, sale and/or delivery by the Company of Confirmation Shares to the applicable Forward Purchaser or any of its affiliates pursuant to the terms of any Confirmation in accordance with the terms thereof and the delivery by such Forward Purchaser or any of its affiliates of such Confirmation Shares to close out open borrowings of Common Stock created in the course of the hedging activities by such Forward Purchaser or any of its affiliates relating to such Forward Purchaser’s exposure under such Confirmation do not and will not require registration under the Securities Act.
(l) All of the outstanding partnership interests of the Operating Partnership have been duly authorized and validly issued, fully paid and non-assessable, and, except as otherwise set forth in the Registration Statement, the Prospectus and the General Disclosure Package, all outstanding partnership interests of the Operating Partnership are owned by the Company directly or indirectly, free and clear of any perfected security interest or any other security interests, claims, mortgages, pledges, liens, encumbrances or other restrictions of any kind. Except as set forth in the Registration Statement, the Prospectus and the General Disclosure Package, there are no outstanding options, warrants, or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities or partnership interests of the Operating Partnership. The units of partnership interest in the Operating Partnership (“OP Units”), including without limitation, the OP Units to be issued to the Company in writing connection with the Company’s issuance of Shares and any Confirmation Shares issued pursuant to any Confirmation, will be duly authorized for issuance by RBC Capital Markets the Operating Partnership to the holders or prospective holders thereof, and at the time of their issuance will be validly issued and fully paid. None of the OP Units will be issued in violation of the preemptive or other similar rights of any security holder of the Operating Partnership or any Alternative Manager expressly other person or entity. Except as set forth in the Registration Statement, the Prospectus and the General Disclosure Package, there will be no outstanding options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities or interests for, OP Units or other ownership interests of the Operating Partnership.
(m) All of the outstanding shares of capital stock or other ownership interests of each Subsidiary other than the Operating Partnership have been duly authorized and validly issued, fully paid and non-assessable, and, except as otherwise set forth in the Registration Statement, the Prospectus and the General Disclosure Package, all outstanding shares of capital stock or other ownership interests of the Subsidiaries other than the Operating Partnership are owned by the Company either directly or through Subsidiaries that are wholly owned, free and clear of any perfected security interest or any other security interests, claims, mortgages, pledges, liens, encumbrances or other restrictions of any kind. Except as set forth in the Registration Statement, the Prospectus and the General Disclosure Package, there are no outstanding options, warrants, or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities or interests for use therein capital stock or other ownership interests of any Subsidiary other than the Operating Partnership.
(that information being limited n) The Second Amended and Restated Agreement of Limited Partnership of the Operating Partnership, as amended, dated as of October 3, 2017, has been duly and validly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable in accordance with its terms.
(o) Except pursuant to that the terms of the indebtedness described in Section 10(bor contemplated by the Registration Statement, the Prospectus and the General Disclosure Package, (i) hereof).the Company is not currently prohibited, directly or indirectly, from making any distributions to its stockholders and (ii) no Subsidiary is currently prohibited, directly or indirectly, from paying any dividends or distributions to the Company, from making any other distribution on such Subsidiary’s capital stock or equity interests, from repaying to the Company any loans or advances to such Subsidiary from the Company or from transferring any of such Subsidiary’s property or assets to
Appears in 1 contract
Sources: Equity Distribution Agreement (Spirit Realty Capital, Inc.)
Representations and Warranties by the Company and the Operating Partnership. Each of the Company and the Operating Partnership (the Operating Partnership, together with the Company and MHC Trust, a Maryland real estate investment trust and a majority owned subsidiary of the Company (“MHC Trust”), the “Transaction Entities”), jointly and severally severally, represents and warrants to RBC Capital Markets as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 7(o) of this Agreement, as of the time of each sale of any Securities pursuant to this Agreement (the “Applicable Time”) and as of each Settlement Date (as defined below), and agrees with RBC Capital Markets, as followseach Manager and each Forward Purchaser that:
(1a) The Company meets Registration Statement became effective upon filing with the requirements for use of Form S-3ASR Commission pursuant to Rule 462 under the Securities Act. The Original Registration Statement was filed by the Company with the Commission not earlier than three years prior to the date hereof. The Original Registration Statement became effective under the Securities Act upon filing with the Commission. The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 under the Securities Act (“Rule 405”), and the Securities have been and remain eligible for registration by the Company on an automatic shelf registration statement. No ; no stop order suspending the effectiveness of the Registration Statement or any part thereof has been issued under the Securities Act is in effect; and no proceedings for that such purpose have been instituted or pursuant to Section 8A of the Securities Act are pending before or, to the knowledge of the CompanyCompany or the Operating Partnership, are contemplated threatened by the Commission. The Company is a well-known seasoned issuer (as defined in Rule 405 under the Securities Act) eligible to use the Registration Statement as an automatic shelf registration statement, and no the Company has not received notice of objection of that the Commission objects to the use of such the Registration Statement as an automatic shelf registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2statement.
(b) under the Securities Act has been received by the Company. No order preventing or suspending the use of any preliminary prospectus or the Prospectus has been issued and no proceeding for that purpose has been instituted or, to the knowledge of the Company, threatened or contemplated by the Commission or the securities authority of any jurisdiction. Any request on the part of the Commission for additional information has been complied with. (i) (A) At the respective times the Original Registration Statement and any post-effective amendments each amendment thereto became effective, (B) at each deemed effective date with respect to RBC Capital Markets and the Securities Managers pursuant to Rule 430B(f)(2) and under the Securities Act (each, a “Deemed Effective Time”), (C) as of each time Shares are sold pursuant to this Agreement (each, a “Time of Sale”), (D) at each Settlement DateDate (as defined below) and (E) at all times during which a prospectus is required by the Securities Act to be delivered (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) in connection with any sale of Shares (the “Delivery Period”), the Original Registration Statement and any amendments and supplements thereto compliedeach amendment thereto, complies if any, complied and will comply in all material respects with the requirements of the Securities Act and the rules and regulations under the Securities Act; (ii) the Base Prospectus complied, or will comply, at the time it was, or will be filed, with the Commission, complies as of the date hereof (if filed with the Commission on or prior to the date hereof) and, as of each Time of Sale and at all times during the Delivery Period, will comply in all material respects with the rules and regulations under the Securities Act; (iii) each of the Prospectus Supplement, any Interim Prospectus Supplement and the Prospectus and any amendment or supplement thereto will comply, as of the date that such document is filed with the Commission, as of each Time of Sale, as of each Settlement Date and at all times during the Delivery Period, in all material respects with the requirements of the Securities Act and the rules and regulations under the Securities Act; (iv) any “road show” as defined in Rule 433(h) under the Securities Act undertaken in connection with the marketing of the Shares, when considered together with the General Disclosure Package, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (v) the Incorporated Documents, when they were filed with the Commission, conformed in all material respects to the requirements of the Exchange Act and the rules and regulations of the Commission thereunder, and any further Incorporated Documents so filed and incorporated by reference, when they are filed with the Commission, will conform in all material respects to the requirements of the Exchange Act and the rules and regulations of the Commission thereunder.
(c) (i) As of the date hereof, at the respective times the Registration Statement and each amendment thereto became effective and at each Deemed Effective Time, the Registration Statement did not, does not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. Neither ; (ii) as of each Time of Sale, the Prospectus nor and any amendments or supplements theretoPermitted Free Writing Prospectus then in use, at considered together (collectively, the time the Prospectus or “General Disclosure Package”), did not contain any such amendment or supplement was issued or at each Settlement Date, included or will include an untrue statement of a material fact or omitted or will omit to state a any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Any preliminary prospectus ; (including the base prospectus filed as part of the Original Registration Statement or any amendment theretoiii) complied when so filed in all material respects with the Securities Act and any such preliminary prospectus and the Prospectus delivered or made available to RBC Capital Markets for use in connection with the offering of any Securities was and will, at the time of such delivery, be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T. Each Issuer Free Writing Prospectus (as defined below), as of its issue date and as of date, the relevant Applicable Time and Settlement Date, or until any earlier date that the issuer notified or notifies RBC Capital Markets as described in Section 7(d) hereof, Prospectus did not, does not and will not (i) include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein that has not been superseded or modified or (ii) when taken together with the Prospectus, include 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 representations ; and warranties (iv) at any Settlement Date, the Prospectus (as amended and supplemented at such Settlement Date) did not and 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 preceding three paragraphs light of the circumstances under which they were made, not misleading; provided, however, that this representation and warranty shall not apply to statements in any statement or omissions from the Original Registration Statement, or any post-effective amendment thereto, or the Prospectus, omission made in reliance upon and in conformity with information furnished in writing to the Company by the Managers expressly for use in the Prospectus or in the General Disclosure Package, it being understood and agreed that the names of the Managers appearing in the first paragraph on the cover page of the Prospectus and the General Disclosure Package constitute the only information furnished in writing by or on behalf of the Managers for use in the Prospectus and the General Disclosure Package (collectively, the “Counterparty Information”).
(d) Any free writing prospectus that the Company is required to file pursuant to Rule 433(d) under the Securities Act has been, or will be, filed with the Commission in accordance with the requirements of the Securities Act and the applicable rules and regulations of the Commission thereunder. Each free writing prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d) under the Securities Act or that was prepared by or on behalf of or used or referred to by the Company complies or will comply in all material respects with the requirements of the Securities Act and the applicable rules and regulations of the Commission thereunder. Each 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 Managers and the Forward Purchasers, did not, does not and will not include any material information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus. Except for the Permitted Free Writing Prospectuses, if any, furnished to and approved by the Managers and the Forward Purchasers in accordance with Section 6(b), the Company has not prepared, used or referred to, and will not, prepare, use or refer to, any free writing prospectus.
(e) (i)(A) At the time of filing the Registration Statement, (B) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus) and (C) at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c)) made any offer relating to the Shelf Securities in reliance on the exemption of Rule 163 under the Securities Act, the Company was not an “ineligible issuer” as defined in Rule 405 under the Securities Act; and (ii)(A) at the time of filing of the Registration Statement, (B) at the earliest time thereafter that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) under the Securities Act) of the Shares and (C) at the date hereof, the Company was not and is not an “ineligible issuer” as defined in Rule 405 under the Securities Act.
(f) The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the State of Maryland, has the corporate power and authority to own and lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement, the Prospectus and the General Disclosure Package and is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not (i) have a material adverse effect on the assets, business, condition (financial or otherwise), cash flows, properties, management, results of operations or prospects of the Company, the Operating Partnership and the Subsidiaries (as hereinafter defined), taken as a whole, or (ii) prevent or materially interfere with consummation of the transactions contemplated by this Agreement and any Confirmation (the occurrence of any such effect, prevention, interference or result described in the foregoing clauses (i) or (ii) being herein referred to as a “Material Adverse Effect”).
(g) The Operating Partnership has been duly organized, is validly existing as a limited partnership in good standing under the laws of the State of Delaware has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement, the Prospectus and the General Disclosure Package and is duly qualified to transact business and is in good standing as a foreign limited partnership in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not, individually or in the aggregate, have a Material Adverse Effect.
(h) Each “significant subsidiary” (as defined in Rule 1-02(w) of Regulation S-X) of the Company other than the Operating Partnership (each a “Subsidiary” and collectively the “Subsidiaries”) has been duly organized, is validly existing as a corporation, limited partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, has the full power and authority to own or lease, as the case may be, its property and to operate its property and conduct its business as described in the Registration Statement, the Prospectus and the General Disclosure Package and is duly qualified to transact business and is in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not, individually or in the aggregate, have a Material Adverse Effect.
(i) All of the issued shares of capital stock, units of limited partnership interest (including OP Units to be issued to the Company in writing connection with both the issuances of the Shares and any Confirmation Shares pursuant to any Confirmation) and units of membership interest of the Operating Partnership and each Subsidiary of the Company or the Operating Partnership have been duly authorized, are validly issued, fully paid and nonassessable, have been issued in compliance with applicable securities laws and were not issued in violation of any preemptive or similar rights. Except as disclosed in the Registration Statement, the Prospectus and the General Disclosure Package, the Company or the Operating Partnership, as the case may be, owns, directly or indirectly, all of the issued and outstanding shares of capital stock, units of limited partnership interest and units of membership interest of the Operating Partnership and each Subsidiary free and clear of all security interests, liens, mortgages, encumbrances, pledges, claims or other defects of any kind (collectively, “Liens”). Schedule II hereto specifically identifies all subsidiaries of the Company that are “significant subsidiaries” of the Company within the meaning of Rule 1-02(w) of Regulation S-X.
(j) The Company has the corporate power and authority to execute and deliver this Agreement each Confirmation and to perform its obligations hereunder and thereunder, all corporate action required to be taken for the due and proper authorization, execution and delivery by RBC Capital Markets it of this Agreement and consummation by it of the transactions contemplated hereby have been duly and validly taken. The form of Confirmation has been duly authorized by the Company. Prior to the sale of Shares by a Manager, as forward seller, the Company shall have duly authorized, executed and delivered the related Confirmation to the related Forward Purchaser, which Confirmation shall constitute a valid and binding obligation of the Company, enforceable in accordance with its terms.
(k) The Operating Partnership has the partnership power and authority to execute and deliver this Agreement and to perform its obligations hereunder and all limited partnership action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby have been duly and validly taken.
(l) The authorized and outstanding capitalization of the Company is as set forth in the Registration Statement, the Prospectus and the General Disclosure Package (except for subsequent issuances, if any, pursuant to (i) reservations, agreements, employee benefit plans or dividend reinvestment or stock purchase plans referred to in the Registration Statement, the Prospectus and the General Disclosure Package, including OP Units (as defined below), or (ii) the exercise, redemption, or exchange of convertible or exchangeable securities, options or warrants referred to in the Registration Statement, the Prospectus and the General Disclosure Package, including OP Units; provided, however, that any Alternative Manager expressly for use therein issuances pursuant to (that information being limited i) or (ii) have been disclosed to that the Managers and the Forward Purchasers). The Shares and the Confirmation Shares conform and will conform as to legal matters to the description thereof contained in the Registration Statement, the Prospectus and the General Disclosure Package. The authorized capital stock of the Company conforms and will conform in all material respects to the description thereof contained in the Registration Statement, the Prospectus and the General Disclosure Package.
(m) Except as described in Section 10(bthe Registration Statement, the Prospectus and the General Disclosure Package, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, units of partnership interest in the Operating Partnership (“OP Units”) hereof)or other ownership interests in the Operating Partnership are outstanding.
(n) Except as described in the Registration Statement, the Prospectus and the General Disclosure Package, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding.
(o) The Shares to be sold by a Manager, as forward seller, have been duly authorized. When issued and delivered pursuant to due authorization by the Company’s board of directors (the “Board”) in accordance with the terms of this Agreement and the related Confirmation, as applicable, the Shares and the Confirmation Shares will be duly authorized, validly issued, fully paid and non-assessable, and the issuance of such Shares and such Confirmation Shares will not be subject to any preemptive or similar rights. No holder of Shares or Confirmation Shares will be subject to personal liability by reason of being such a holder. The issuance, sale and/or delivery by the Company of Confirmation Shares to the applicable Forward Purchaser (or an affiliate thereof) pursuant to the terms of any Confirmation in accordance with the terms thereof and the delivery by such Forward Purchaser (or an affiliate thereof) of such Confirmation Shares to close out open borrow
Appears in 1 contract
Sources: Equity Distribution Agreement (Summit Hotel Properties, Inc.)
Representations and Warranties by the Company and the Operating Partnership. Each of the The Company and the Operating Partnership (the Operating Partnership, together with the Company and MHC Trust, a Maryland real estate investment trust and a majority owned subsidiary of the Company (“MHC Trust”), the “Transaction Entities”), jointly and each severally represents and warrants to RBC Capital Markets ▇▇▇▇▇▇▇ ▇▇▇▇▇ as of the date hereof and hereof, as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 7(o7(n) of this Agreement, as of each Applicable Time (as defined below) and, to the time of each sale of any Securities pursuant to extent set forth expressly in this Agreement (the “Applicable Time”) and Section 5(a), as of each Settlement Date (as defined below)Date, and agrees with RBC Capital Markets▇▇▇▇▇▇▇ ▇▇▇▇▇, as follows:
(1) The Company meets the requirements for use of Form S-3ASR under the Status as a Well-Known Seasoned Issuer; Registration Statement Effective; Conform to Securities Act. The ; No Misleading Statements; Conformity with ▇▇▇▇▇ filings.
(A) At the time of filing the Original Registration Statement was filed by Statement, (B) at the Company time of the most recent amendment thereto for the purposes of complying with the Commission not earlier than three years prior to the date hereof. The Original Registration Statement became effective under Section 10(a)(3) of the Securities Act upon filing with (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the CommissionExchange Act or form of prospectus, (C) at the date hereof and (D) at each Settlement Date, the Company was, is and will be a “well-known seasoned issuer” as defined in 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 under the Securities Act (“Rule 405”), and the Securities Securities, since their registration on the Registration Statement, have been and remain eligible for registration by the Company on an a Rule 405 “automatic shelf registration statement.” The Company has not received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting to the use of the automatic shelf registration statement form. No As of the date hereof and at each relevant Applicable Time and at each relevant Settlement Date, the Company has paid, or if the Prospectus Supplement has not yet been filed with the Commission will pay, the required Commission filing fees relating to the Securities within the time required by Rule 456(b)(1)(i) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of the Prospectus Supplement). The Original Registration Statement became effective under Rule 462(e) upon receipt of filing by the Commission on April 21, 2008, and any post-effective amendment thereto also became effective upon filing under Rule 462(e). As of the date hereof and each relevant Applicable Time and each relevant Settlement Date, no stop order suspending the effectiveness of the Registration Statement or any part thereof has been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the CompanyCompany or the Operating Partnership, are contemplated by the Commission, 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 Securities Act has been received by the Company. No order preventing or suspending the use of any preliminary prospectus or the Prospectus has been issued and no proceeding for that purpose has been instituted or, to the knowledge of the Company, threatened or contemplated by the Commission or the securities authority of any jurisdiction. Any request on the part of the Commission for additional information has been complied with. Any offer that is a written communication relating to the Securities made prior to the filing of the Original Registration Statement by the Company or any person acting on its behalf (within the meaning, for this paragraph only, of Rule 163(c)) has been filed (unless exempt from filing pursuant to Rule 163) with the Commission in accordance with the exemption provided by 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 5(c) of the Securities Act provided by Rule 163. At the respective times the Original Registration Statement and any post-effective amendments amendment thereto became effective, at each deemed effective date with respect to RBC Capital Markets ▇▇▇▇▇▇▇ ▇▇▇▇▇ and the Securities pursuant to Rule 430B(f)(2) ), at the date hereof, at each relevant Applicable Time and at each relevant Settlement Date, the Original Registration Statement and any amendments and supplements thereto complied, complies and will comply in all material respects with the requirements under of the Securities Act, and did not, does not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. Neither The Prospectus and each amendment or supplement thereto, if any, at the time the Prospectus or any such amendment or supplement is issued and at the date hereof, at each relevant Applicable Time and at each relevant Settlement Date, complied, complies and will comply in all material respects with the requirements of the Securities Act and neither the Prospectus nor any amendments or supplements thereto, at the time the Prospectus or any such amendment or supplement was issued issued, or at the date hereof, at each relevant Applicable Time or at any Settlement Date, included included, includes or will include an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Any preliminary prospectus (including the base prospectus filed as part of the Original Registration Statement or any amendment thereto) complied when so filed in all material respects with the Securities Act and any such preliminary prospectus and the Prospectus delivered or made available to RBC Capital Markets for use in connection with the offering of any Securities was and will, at the time of such delivery, be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T. Each Issuer Free Writing Prospectus (as defined below), as of its issue date and as of the date hereof, each relevant Applicable Time and each relevant Settlement Date, or until any earlier date that the issuer notified or notifies RBC Capital Markets ▇▇▇▇▇▇▇ ▇▇▇▇▇ as described in Section 7(d) hereof), did not, does not and will not (i) include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein that has not been superseded or modified Prospectus or (ii) when taken together with the Prospectus, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Each Prospectus delivered to ▇▇▇▇▇▇▇ ▇▇▇▇▇ for use in connection with the offering of any Securities was identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T. The representations and warranties in the preceding three paragraphs this Section 5(a)(1) shall not apply to statements in or omissions from the Original Registration Statement, the Prospectus or any post-effective amendment thereto, or the Prospectus, Issuer Free Writing Prospectus made in reliance upon and in conformity with written information furnished to the Company in writing by RBC Capital Markets ▇▇▇▇▇▇▇ ▇▇▇▇▇ or any the Alternative Manager Managers expressly for use therein (therein, provided that the parties hereby agree that the only such information being limited in the Prospectus is that set forth in the eighth paragraph with regard to that described affiliates of ▇▇▇▇▇▇▇ ▇▇▇▇▇ and the Alternative Managers under the caption “Plan of Distribution” in Section 10(b) hereof)the Prospectus Supplement, and ▇▇▇▇▇▇▇ ▇▇▇▇▇ hereby consents to the use in the Prospectus of such information.
Appears in 1 contract
Sources: Equity Distribution Agreement (Aimco Properties Lp)
Representations and Warranties by the Company and the Operating Partnership. Each of the The Company and the Operating Partnership (the Operating Partnership, together with the Company and MHC Trust, a Maryland real estate investment trust and a majority owned subsidiary of the Company (“MHC Trust”), the “Transaction Entities”), each jointly and severally represents and warrants to RBC Capital Markets ▇▇▇▇▇▇▇ ▇▇▇▇▇ as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 7(o) of this Agreement), as of the time of each sale of any Securities or any securities pursuant to this Agreement (the each, an “Applicable Time”) and as of each Settlement Date (as defined below)Date, and agrees with RBC Capital Markets▇▇▇▇▇▇▇ ▇▇▇▇▇, as follows:
(1) The Status as a Well-Known Seasoned Issuer; Registration Statement Effective; Conform to Securities Act; No Misleading Statements; Conformity with ▇▇▇▇▇ filings.
(A) At the time of filing the Original Registration Statement, (B) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), (C) at the time the Company meets or any person acting on its behalf (within the requirements meaning, for use this clause only, of Form S-3ASR Rule 163(c) under the Securities Act. The Original Registration Statement was filed by the Company with the Commission not earlier than three years prior ) made any offer relating to the date hereof. The Original Registration Statement became effective Securities in reliance on the exemption of Rule 163 under the Securities Act upon filing with (“Rule 163”), (D) at the Commissionearliest time that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) under the Securities Act) of the Securities and (E) at the date hereof, the Company was, is and will be a “well-known seasoned issuer” as defined in Rule 405 under the Securities 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 under the Securities Act (“Rule 405”), and the Securities Securities, since their registration on the Registration Statement, have been and remain eligible for registration by the Company on an a Rule 405 “automatic shelf registration statement.” The Company has not received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting to the use of the automatic shelf registration statement form. The Company has paid, or if the Prospectus Supplement has not yet been filed with the Commission will pay, the required Commission filing fees relating to the Securities within the time required by Rule 456(b)(1)(i) under the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Securities Act (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of the Prospectus). The Original Registration Statement became effective upon filing under Rule 462(e) on April 13, 2011, and any post-effective amendment thereto also became effective upon filing under Rule 462(e). No stop order suspending the effectiveness of the Registration Statement or any part thereof has been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the CompanyCompany or the Operating Partnership, are contemplated by the Commission, 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 Securities Act has been received by the Company. No order preventing or suspending the use of any preliminary prospectus or the Prospectus has been issued and no proceeding for that purpose has been instituted or, to the knowledge of the Company, threatened or contemplated by the Commission or the securities authority of any jurisdiction. Any request on the part of the Commission for additional information has been complied with. Any offer that is a written communication relating to the Securities made prior to the filing of the Original Registration Statement by the Company or any person acting on its behalf (within the meaning, for this paragraph only, of Rule 163(c)) has been filed (unless exempt from filing pursuant to Rule 163) with the Commission in accordance with the exemption provided by 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 5(c) of the Securities Act provided by Rule 163. At the respective times the Original Registration Statement and any post-effective amendments amendment thereto became effective, at each deemed effective date with respect to RBC Capital Markets ▇▇▇▇▇▇▇ ▇▇▇▇▇ and the Securities pursuant to Rule 430B(f)(2) ), and at each relevant Settlement Date, the Original Registration Statement and any amendments and supplements thereto complied, complies and will comply in all material respects with the requirements under of the Securities Act, and did not, does not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. Neither The Prospectus and each amendment or supplement thereto, if any, at the time the Prospectus or any such amendment or supplement is issued and at each relevant Settlement Date, complied, complies and will comply, in all material respects with the requirements of the Securities Act and neither the Prospectus nor any amendments or supplements thereto, at the time the Prospectus or any such amendment or supplement was issued issued, or at each any Settlement Date, included included, includes or will include an untrue statement of a material fact or omitted omitted, omits or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Any preliminary prospectus (including the base prospectus filed as part of the Original Registration Statement or any amendment thereto) complied when so filed in all material respects with the Securities Act and any such preliminary prospectus and the Each Prospectus delivered or made available to RBC Capital Markets ▇▇▇▇▇▇▇ ▇▇▇▇▇ for use in connection with the offering of any Securities was and will, at the time of such delivery, be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T. Each Issuer Free Writing Prospectus (as defined below), as of its issue date and as of the relevant Applicable Time and Settlement Date, or until any earlier date that the issuer notified or notifies RBC Capital Markets ▇▇▇▇▇▇▇ ▇▇▇▇▇ as described in Section 7(d) hereof), did not, does not and will not (i) include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein and any preliminary or other prospectus deemed to be a part thereof that has not been superseded or modified or (ii) when taken together with the Prospectus, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. As used herein, an “Issuer Free Writing Prospectus” means any “issuer free writing prospectus,” as defined in Rule 433 of the Securities Act (“Rule 433”), relating to the Securities that (i) is required to be filed with the Commission by the Company, (ii) is a “road show” that is a “written communication” within the meaning of Rule 433(d)(8)(i) whether or not required to be filed with the Commission, or (iii) is exempt from filing pursuant to Rule 433(d)(5)(i) because it contains a description of the Securities or of the offering that does not reflect the final terms, and all free writing prospectuses that are listed on Exhibit F attached hereto, in each case in the form furnished (electronically or otherwise) to ▇▇▇▇▇▇▇ ▇▇▇▇▇ for use in connection with the offering of the Securities. The representations and warranties in the preceding three paragraphs this Section 5(a)(1) shall not apply to statements in or omissions from the Original Registration Statement, the Prospectus or any post-effective amendment thereto, or the Prospectus, Issuer Free Writing Prospectus made in reliance upon and in conformity with written information furnished to the Company in writing by RBC Capital Markets or any Alternative Manager ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use therein (that information being limited to that described in Section 10(b) hereof)therein.
Appears in 1 contract
Sources: Equity Distribution Agreement (Pebblebrook Hotel Trust)
Representations and Warranties by the Company and the Operating Partnership. Each of the Company and the Operating Partnership (the Operating Partnership, together with the Company and MHC Trust, a Maryland real estate investment trust and a majority owned subsidiary of the Company (“MHC Trust”), the “Transaction Entities”), jointly and severally severally, represents and warrants to RBC Capital Markets as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 7(o) of this Agreement, as of the time of each sale of any Securities pursuant to this Agreement (the “Applicable Time”) and as of each Settlement Date (as defined below), and agrees with RBC Capital Marketseach Underwriter, as followseach Forward Purchaser and each Forward Seller that:
(1a) The Company meets Registration Statement became effective upon filing with the requirements for use of Form S-3ASR Commission pursuant to Rule 462 under the Securities Act. The Original Registration Statement was filed by the Company with the Commission not earlier than three years prior to the date hereof. The Original Registration Statement became effective under the Securities Act upon filing with the Commission. The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 under the Securities Act (“Rule 405”), and the Securities have been and remain eligible for registration by the Company on an automatic shelf registration statement. No ; no stop order suspending the effectiveness of the Registration Statement or any part thereof has been issued under the Securities Act is in effect; and no proceedings for that such purpose have been instituted or pursuant to Section 8A of the Securities Act are pending before or, to the knowledge of the CompanyCompany or the Operating Partnership, are contemplated threatened by the Commission. The Company is a well-known seasoned issuer (as defined in Rule 405 under the Securities Act) eligible to use the Registration Statement as an automatic shelf registration statement, and no the Company has not received notice of objection of that the Commission objects to the use of such the Registration Statement as an automatic shelf registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2statement.
(b) under the Securities Act has been received by the Company. No order preventing or suspending the use of any preliminary prospectus or the Prospectus has been issued and no proceeding for that purpose has been instituted or, to the knowledge of the Company, threatened or contemplated by the Commission or the securities authority of any jurisdiction. Any request on the part of the Commission for additional information has been complied with. (i) (A) At the respective times the Original Registration Statement and any post-effective amendments each amendment thereto became effective, (B) at each deemed effective date with respect to RBC Capital Markets and the Securities Underwriters pursuant to Rule 430B(f)(2) under the Securities Act, (C) at the Closing Date (as defined below) and (D) at each Settlement Dateall times during which a prospectus is required by the Securities Act to be delivered (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) in connection with any sale of Shares (the “Delivery Period”), the Original Registration Statement and any amendments and supplements thereto complied, complies complied and will comply in all material respects with the requirements of the Securities Act and the rules and regulations under the Securities Act; (ii) the Base Prospectus complied, or will comply, at the time it was, or will be, filed with the Commission, complies as of the date hereof (if filed with the Commission on or prior to the date hereof) and, as of the Time of Sale (as defined below) and did notat all times during the Delivery Period, will comply in all material respects with the rules and regulations under the Securities Act; (iii) the Prospectus will comply, as of the date that such document is filed with the Commission, as of the Time of Sale, as of the Closing Date and at all times during the Delivery Period, in all material respects with the rules and regulations under the Securities Act; (iv) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not and will not contain an any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. Neither the Prospectus nor any amendments or supplements thereto, at the time the Prospectus or any such amendment or supplement was issued or at each Settlement 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. Any preliminary prospectus ; and (including v) the base prospectus Incorporated Documents, when they were filed as part of with the Original Registration Statement or any amendment thereto) complied when so filed Commission, conformed in all material respects with to the Securities requirements of the Exchange Act and the rules and regulations of the Commission thereunder, and any such preliminary prospectus further Incorporated Documents so filed and the Prospectus delivered or made available to RBC Capital Markets for use in connection with the offering of any Securities was and willincorporated by reference, at the time of such delivery, be identical to the electronically transmitted copies thereof when they are filed with the Commission pursuant to ▇▇▇▇▇Commission, except will conform in all material respects to the extent permitted by Regulation S-T. Each Issuer Free Writing Prospectus (as defined below), as of its issue date and as requirements of the relevant Applicable Time Exchange Act and Settlement Date, or until any earlier date that the issuer notified or notifies RBC Capital Markets as described in Section 7(d) hereof, did not, does not rules and will not (i) include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein that has not been superseded or modified or (ii) when taken together with the Prospectus, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light regulations of the circumstances under which they were madeCommission thereunder. For purposes of this Agreement, not misleading. The representations and warranties in the preceding three paragraphs shall not apply to statements in or omissions from term “Time of Sale” means 7:15 p.m. (New York City time) on the Original Registration Statement, or any post-effective amendment thereto, or the Prospectus, made in reliance upon and in conformity with information furnished to the Company in writing by RBC Capital Markets or any Alternative Manager expressly for use therein (that information being limited to that described in Section 10(b) date hereof).
Appears in 1 contract
Sources: Underwriting Agreement (Spirit Realty Capital, Inc.)
Representations and Warranties by the Company and the Operating Partnership. Each of the The Company and the Operating Partnership (the Operating Partnership, together with the Company and MHC Trust, a Maryland real estate investment trust and a majority owned subsidiary of the Company (“MHC Trust”), the “Transaction Entities”), jointly and severally represents severally, represent and warrants warrant to RBC Capital Markets the Underwriters as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 7(o) of this Agreementhereof, as of the time of each sale of any Securities pursuant to this Agreement (the “Applicable Time”) and as of each Settlement Date Time (as defined below), and agrees as of the Closing Date referred to in Section 2(b) hereof, and agree with RBC Capital Marketsthe Underwriters, as follows:
(1) The Company meets and the Operating Partnership meet the requirements for use of Form S-3ASR S-3 under the Securities 1933 Act. The Original Registration Statement was filed by the Company with the Commission not earlier than three years prior to the date hereof. The Original Registration Statement became effective under the Securities Act upon filing with the Commission. The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 and any post-effective amendments thereto have become effective under the Securities Act (“Rule 405”), and the Securities have been and remain eligible for registration by the Company on an automatic shelf registration statement1933 Act. No stop order suspending the effectiveness of the Registration Statement or any part thereof has been issued under the Securities 1933 Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the CompanyCompany and the Operating Partnership, are contemplated by the Commission, 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 Securities Act has been received by the Company. No order preventing or suspending the use of any preliminary prospectus or the Prospectus has been issued and no proceeding for that purpose has been instituted or, to the knowledge of the Company, threatened or contemplated by the Commission or the securities authority of any jurisdiction. Any request on the part of the Commission for additional information has been complied with. At the respective times the Original Registration Statement and any post-effective amendments thereto became or become effective, at each deemed effective date of the Registration Statement with respect to RBC Capital Markets and the Securities Underwriters pursuant to Rule 430B(f)(2) of the 1933 Act Regulations and at each Settlement the Closing Date, the Original Registration Statement and any amendments and supplements thereto complied, complies complied and will comply in all material respects with the requirements under of the Securities Act, 1933 Act and the 1933 Act Regulations and did not, does not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. Neither the The Prospectus nor and any amendments or supplements thereto, at the time the Prospectus or any such amendment or supplement was issued or and at each Settlement Date, included or the Closing Date complied and 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. Any preliminary prospectus (including the base prospectus filed as part of the Original Registration Statement or any amendment thereto) complied when so filed comply in all material respects with the Securities requirements of the 1933 Act and any such preliminary prospectus the 1933 Act Regulations and the Prospectus delivered or made available to RBC Capital Markets for use in connection with the offering of any Securities was and will, at the time of such delivery, be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T. Each Issuer Free Writing Prospectus (as defined below), as of its issue date and as of the relevant Applicable Time and Settlement Date, or until any earlier date that the issuer notified or notifies RBC Capital Markets as described in Section 7(d) hereof, did not, does not and will not (i) include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein that has not been superseded or modified or (ii) when taken together with the Prospectus, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The representations Each preliminary prospectus (including any prospectus or prospectuses filed as part of the Registration Statement at the time it originally became effective or any amendment thereto), complied when so filed in all material respects with the 1933 Act and warranties the 1933 Act Regulations and each preliminary prospectus and the Prospectus delivered to the Underwriters for use in connection with the offering of the Securities was identical to the electronically transmitted copies thereof filed with the Commission pursuant to E▇▇▇▇, except to the extent permitted by Regulation S-T. As of the Applicable Time, neither (x) the Issuer General Use Free Writing Prospectus(es) (as defined below) issued at or prior to the Applicable Time (as defined below), each preliminary prospectus issued at or prior to the Applicable Time and the information included on Schedule III hereto all considered together (collectively, the “Disclosure Package”), nor (y) any individual Issuer Limited Use Free Writing Prospectus (as defined below), when considered together with the Disclosure Package, included any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the preceding three paragraphs shall light of the circumstances under which they were made, not apply to statements misleading. As used in or omissions from the Original Registration Statement, or any post-effective amendment thereto, or the Prospectus, made this subsection and elsewhere in reliance upon and in conformity with information furnished to the Company in writing by RBC Capital Markets or any Alternative Manager expressly for use therein (that information being limited to that described in Section 10(b) hereof).this Agreement:
Appears in 1 contract
Sources: Underwriting Agreement (Lepercq Corporate Income Fund L P)