Exhibit 1.1
SALES AGENCY FINANCING
AGREEMENT
THIS SALES AGENCY FINANCING
AGREEMENT (this “ Agreement ”), dated as of
September 28, 2009, among EQUITY RESIDENTIAL, a Maryland real
estate investment trust (“ EQR ”), ERP OPERATING
LIMITED PARTNERSHIP, an Illinois limited partnership (“
ERP ”, and together with EQR, the “
Transaction Entities ”), and MERRILL LYNCH, PIERCE,
FENNER & SMITH INCORPORATED (“ Merrill Lynch
”).
W I T N E S S E T H:
WHEREAS, EQR has authorized and
proposes to issue and sell in the manner contemplated by this
Agreement up to 17,000,000 Program Shares (as defined herein) upon
the terms and subject to the conditions contained
herein;
WHEREAS, Merrill Lynch has been
appointed by EQR as its agent to sell the Program Shares and agrees
to use its commercially reasonable efforts to sell the Program
Shares offered by EQR upon the terms and subject to the conditions
contained herein; and
WHEREAS, the Transaction Entities
have also entered into sales agency financing agreements (each, an
“ Alternative Sales Agency Agreement ”), each
dated of even date herewith, with each of J.P. Morgan Securities
Inc. and Morgan Stanley & Co. Incorporated (each, an
“ Alternative Sales Agent ”), for the issuance
and sale from time to time through the Alternative Sales Agents of
Program Shares on the terms set forth in the Alternative Sales
Agency Agreements. This Agreement and the Alternative Sales
Agency Agreements are collectively referred to herein as the
“ Sales Agency Agreements .” The aggregate
number of Program Shares to be issued and sold pursuant to the
Sales Agency Agreements shall not exceed the Maximum Program Amount
(as defined herein).
NOW THEREFORE, in consideration of
the premises, representations, warranties, covenants and agreements
contained herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged,
intending to be legally bound hereby, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
Section 1.01
Certain Definitions . For purposes of this
Agreement, capitalized terms used herein and not otherwise defined
shall have the following respective meanings:
“ Actual Sold Amount
” means the number of Issuance Shares that Merrill Lynch has
sold during the Selling Period.
“ Affiliate ” of
a Person means another Person that directly or indirectly, through
one or more intermediaries, controls, is controlled by, or is under
common control with, such first- mentioned Person. The term
“control” (including the terms
“controlling,” “controlled by” and
“under common control with”) means the possession,
direct or indirect, of the power to direct or cause the direction
of the management and policies of a Person, whether through the
ownership of voting securities, by contract or
otherwise.
“ Agreement ” has
the meaning set forth in the Preamble.
“ Alternative Sales Agency
Agreement ” has the meaning set forth in the
Recitals.
“ Alternative Sales
Agents ” has the meaning set forth in the
Recitals.
“ Applicable Time
” means the time of sale of any Program Shares pursuant to
this Agreement.
“ Average Daily Trading
Volume ” shall have the definition given for
“ADTV” in Regulation M promulgated by the Commission
and as in effect on the date hereof.
“ Base Prospectus
” has the meaning set forth in Section 3.01.
“ Closing ” has
the meaning set forth in Section 2.02.
“ Closing Date ”
means the date on which the Closing occurs.
“ Code ” means
the Internal Revenue Code of 1986, as amended.
“ Comfort Letter Request
Date ” has the meaning set forth in
Section 4.08.
“ Commission ”
means the United States Securities and Exchange
Commission.
“ Commitment Period
” means the period commencing on the date of this Agreement
and expiring on the earliest to occur of (x) the date on which
Merrill Lynch and the Alternative Sales Agents in the aggregate
shall have sold the Maximum Program Amount pursuant to the Sales
Agency Agreements, (y) the date this Agreement is terminated
pursuant to Article VII and (z) the third anniversary of
the date of this Agreement.
“ Common Shares ”
shall mean the EQR’s common shares of beneficial interest,
par value $.01 per share.
“ Environmental Laws
” has the meaning set forth in Section 3.33.
“ EQR ” has the
meaning set forth in the Preamble.
“ ERP ” has the
meaning set forth in the Preamble.
“ Exchange Act ”
means the Securities Exchange Act of 1934, as amended.
“ Exchange Act
Regulations ” has the meaning set forth in
Section 3.25.
- 2 -
“ FCPA ” has the
meaning set forth in Section 3.42.
“ Floor Price ”
means the minimum price per share set by EQR in the Issuance Notice
below which Merrill Lynch shall not sell Program Shares during the
Selling Period, which may be adjusted by EQR at any time during the
Selling Period and which in no event shall be less than
$1.00.
“ GAAP ” has the
meaning set forth in Section 3.08.
“ General Disclosure
Package ” has the meaning set forth in
Section 3.02.
“ Government License
” has the meaning set forth in Section 3.24.
“ Hazardous Materials
” has the meaning set forth in Section 3.33.
“ Issuance Supplement
” has the meaning set forth in Section 3.01.
“ Issuer Free Writing
Prospectus ” has the meaning set forth in
Section 3.05.
“ Issuance ”
means each occasion EQR elects to exercise its right to deliver an
Issuance Notice requiring Merrill Lynch to use its commercially
reasonable efforts to sell Program Shares as specified in such
Issuance Notice, subject to the terms and conditions of this
Agreement.
“ Issuance Amount
” means the number of Issuance Shares to be sold by Merrill
Lynch with respect to any Issuance.
“ Issuance Date ”
means any Trading Day during the Commitment Period that an Issuance
Notice is deemed delivered pursuant to
Section 2.03(b) hereof.
“ Issuance Notice
” means a written notice to Merrill Lynch delivered in
accordance with this Agreement in the form attached hereto as
Exhibit A.
“ Issuance Price
” means the Sales Price less the Selling
Commission.
“ Issuance Shares
” means all Program Shares issued or issuable pursuant to an
Issuance that has occurred or may occur in accordance with the
terms and conditions of this Agreement.
“ Issuance Supplement
” has the meaning set forth in Section 3.01.
“ Material Adverse
Effect ” means a material adverse effect on the financial
condition or in the earnings, assets, business affairs or business
prospects of the Transaction Entities and their subsidiaries,
considered as a single enterprise, whether or not arising in the
ordinary course of business, or any material adverse effect on the
Transaction Entities’ ability to consummate the transactions
contemplated by, or to execute, deliver and perform their
obligations under, this Agreement.
- 3 -
“ Maximum Program
Amount ” means 17,000,000 Program Shares.
“ Merrill Lynch ”
has the meaning set forth in the Preamble.
“ Money Laundering Laws
” has the meaning set forth in Section 3.41.
“ OFAC ” has the
meaning set forth in Section 3.43.
“ Officer’s
Certificate Request Date ” has the meaning set forth in
Section 4.09.
“ Opinion Request Date
” has the meaning set forth in Section 4.07.
“ Person ” means
an individual or a corporation, partnership, limited liability
company, trust, incorporated or unincorporated association, joint
venture, joint stock company, governmental authority or other
entity of any kind.
“ Principal Market
” means the New York Stock Exchange.
“ Program Shares
” means Common Shares issued or issuable pursuant to the
Sales Agency Agreements.
“ Prospectus ”
has the meaning set forth in Section 3.01.
“ Prospectus Supplement
” has the meaning set forth in
Section 5.01(k).
“ Registration
Statement ” has the meaning set forth in
Section 3.01.
“ Registration Statement
Amendment Date ” has the meaning set forth in
Section 4.07.
“ Renewal Deadline
” has the meaning set forth in Section 4.01.
“ Representation Date
” has the meaning set forth in the preamble to Article
III.
“ Request Date ”
means each Comfort Letter Request Date, each Officer’s
Certificate Request Date and each Opinion Request Date.
“ Rule 462 Registration
Statement ” has the meaning set forth in
Section 3.01.
“ Sales Agency
Agreements ” has the meaning set forth in the
Recitals.
“ Sales Price ”
means the actual sale execution price of each Program Share sold by
Merrill Lynch on the Principal Market hereunder in the case of
ordinary brokers’ transactions, or as otherwise agreed by the
parties in other methods of sale.
“ Sarbanes-Oxley Act
” has the meaning set forth in Section 3.40.
- 4 -
“ Securities Act
” means the Securities Act of 1933, as amended.
“ Securities Act
Regulations ” has the meaning set forth in
Section 3.01.
“ Selling Commission
” means at a mutually agreed rate, not to exceed 2.0%, of the
Sales Price of Program Shares sold during a Selling
Period.
“ Selling Period
” means the period of one to ten consecutive Trading Days (as
determined by EQR in EQR’s sole discretion and specified in
the applicable Issuance Notice) following the Trading Day on which
an Issuance Notice is delivered or deemed to be delivered pursuant
to Section 2.03(b) hereof.
“ Settlement Date
” means, unless EQR and Merrill Lynch shall otherwise agree,
the third business day following each Trading Day during the
Selling Period, when EQR shall deliver to Merrill Lynch the amount
of Program Shares sold on such Trading Day and Merrill Lynch shall
deliver to EQR the Issuance Price received on such
sales.
“ Standoff Period
” has the meaning set forth in Section 4.10.
“ Trading Day ”
means any day which is a trading day on the Principal Market, other
than a day on which trading is scheduled to close prior to its
regular weekday closing time.
“ Transaction Entities
” has the meaning set forth in the Preamble.
ARTICLE II
ISSUANCE AND SALE OF COMMON SHARES
Section 2.01
Issuance . (a) Upon the terms and
subject to the conditions of this Agreement, EQR may issue Program
Shares through Merrill Lynch and Merrill Lynch shall use its
commercially reasonable efforts to sell Program Shares, up to the
Maximum Program Amount, based on and in accordance with such number
of Issuance Notices as EQR in its sole discretion shall choose to
deliver during the Commitment Period until the number of the
Program Shares sold under the Sales Agency Agreements equals the
Maximum Program Amount or this Agreement is otherwise
terminated. Subject to the foregoing and the other terms and
conditions of this Agreement, upon the delivery of an Issuance
Notice, and unless the sale of the Issuance Shares described
therein has been suspended, cancelled or otherwise terminated in
accordance with the terms of this Agreement, Merrill Lynch will use
its commercially reasonable efforts consistent with its normal
trading and sales practices to sell such Issuance Shares up to the
amount specified into the Principal Market, and otherwise in
accordance with the terms of such Issuance Notice. Merrill
Lynch will provide written confirmation to EQR no later than the
opening of the Trading Day next following the Trading Day on which
it has made sales of Issuance Shares hereunder setting forth the
portion of the Actual Sold Amount for such Trading Day, the
corresponding Sales Price and the Issuance Price payable to EQR in
respect thereof. Merrill Lynch may sell Issuance Shares in the
manner described in Section 2.01(b) herein. Each of
the Transaction Entities acknowledges and agrees that
(i) there can be no assurance that Merrill Lynch will be
successful in selling Issuance Shares and (ii) Merrill Lynch
will incur no liability or
- 5 -
obligation to the Transaction Entities or any
other Person if it does not sell Issuance Shares for any reason
other than a failure by Merrill Lynch to use its commercially
reasonable efforts consistent with its normal trading and sales
practices to sell such Issuance Shares as required under this
Section 2.01. In acting hereunder, Merrill Lynch will be
acting as agent for EQR and not as principal.
(b)
Method of Offer and Sale . The Program Shares may be
offered and sold in (1) privately negotiated transactions (if
and only if the parties hereto have so agreed in writing), or
(2) by any other method or payment permitted by law deemed to
be an “at the market” offering as defined in
Rule 415 of the Securities Act, including sales made directly
on the Principal Market or sales made to or through a market maker
or through an electronic communications network. Nothing in
this Agreement shall be deemed to require either party to agree to
the method of offer and sale specified in clause (1) above,
and either party may withhold its consent thereto in such
party’s sole discretion.
(c)
Issuances . Upon the terms and subject to the
conditions set forth herein, on any Trading Day as provided in
Section 2.03(b) hereof during the Commitment Period on
which the conditions set forth in Section 5.01 and 5.02 hereof
have been satisfied, EQR may exercise an Issuance by the delivery
of an Issuance Notice, executed by the Chief Executive Officer, the
President, the Chief Financial Officer, the Senior Vice
President-Finance or the Treasurer of EQR, to Merrill
Lynch. Merrill Lynch shall use its commercially reasonable
efforts to sell pursuant to such Issuance a number of Program
Shares equal to the Issuance Amount. Each Issuance will be
settled on the applicable Settlement Date following the Issuance
Date.
Section 2.02
Effectiveness . The effectiveness of this
Agreement (the “ Closing ”) shall be deemed to
take place concurrently with the execution and delivery of this
Agreement by the parties hereto and the completion of the closing
transactions set forth in the immediately following
sentence. At the Closing, the following closing transactions
shall take place, each of which shall be deemed to occur
simultaneously with the Closing: (i) EQR shall deliver to
Merrill Lynch a certificate executed by the Secretary of EQR,
signing in such capacity, on behalf of EQR and in its capacity as
general partner of ERP, dated the date of the Closing
(A) certifying that attached thereto are true and complete
copies of the resolutions duly adopted by the Board of Trustees of
EQR authorizing the execution and delivery of this Agreement by EQR
and the consummation of the transactions contemplated hereby
(including, without limitation, the issuance of the Program
Shares pursuant to the Sales Agency Agreement), which authorization
shall be in full force and effect on and as of the date of such
certificate and (B) certifying and attesting to the office,
incumbency, due authority and specimen signatures of each Person
who executed the Agreement for or on behalf of EQR; (ii) EQR
shall deliver to Merrill Lynch a certificate executed by the Chief
Executive Officer, the President or any Senior or Executive
Vice-President of EQR and by the Chief Financial Officer of EQR,
signing in such capacity, on behalf of EQR and in its capacity as
general partner of ERP, dated the date of the Closing, confirming
(x) that there has been no Material Adverse Effect since the
date as of which information is given in the Prospectus as then
amended or supplemented, (y) that the representations and
warranties of the Transaction Entities contained in this Agreement
are true and correct and (z) that each of the Transaction
Entities has performed all of its obligations hereunder to be
performed on or prior to the Closing Date and as to the matters set
forth in Section 5.01(a) hereof; (iii) Sidley Austin
LLP, counsel to EQR, shall
- 6 -
deliver to Merrill Lynch an opinion letter,
dated the date of the Closing and addressed to Merrill Lynch,
substantially in the forms of Exhibit B and Exhibit C
attached hereto; (iv) the General Counsel of EQR shall deliver
to Merrill Lynch an opinion, dated the date of the Closing and
addressed to Merrill Lynch, substantially in the form of
Exhibit D attached hereto; (v) Hogan & Hartson
LLP, counsel to Merrill Lynch and the Alternative Sales Agents,
shall deliver to Merrill Lynch and the Alternative Sales Agents an
opinion, dated the date of the Closing and addressed to Merrill
Lynch and the Alternative Sales Agents, in form and substance
satisfactory to Merrill Lynch and the Alternative Sales Agents;
(vi) Ernst & Young LLP shall deliver to Merrill Lynch
a letter, dated the Closing Date, in form and substance
satisfactory to Merrill Lynch, containing statements and
information of the type ordinarily included in accountants’
“comfort letters” to underwriters, with respect to the
financial statements of EQR included or incorporated by reference
in the Registration Statement, the Prospectus and the General
Disclosure Package; and (vii) EQR shall pay the expenses
set forth in Section 9.02(ii) and (viii) hereof by
wire transfer to the account designated by Merrill Lynch in writing
prior to the Closing.
Section 2.03
Mechanics of Issuances .
(a)
Issuance Notice . On any Trading Day during the
Commitment Period, EQR may deliver an Issuance Notice to Merrill
Lynch, subject to the satisfaction of the conditions set forth in
Sections 5.01 and 5.02; provided, however, that notwithstanding
anything in this Agreement to the contrary, (1) Merrill Lynch
shall not be obligated to sell on any Trading Day a number of
Issuance Shares in excess of 25% of the Average Daily Trading
Volume of Common Shares on the Principal Exchange without the prior
written consent of Merrill Lynch, which may be withheld in Merrill
Lynch’s sole discretion, and (2) Merrill Lynch shall
have no further obligations with respect to any Issuance Notice if
and to the extent the number of the Issuance Shares sold pursuant
thereto, together with the aggregate number of the Program Shares
previously sold under the Sales Agency Agreements, shall exceed the
Maximum Program Amount. EQR shall have the right, in its sole
discretion, to amend at any time and from time to time any Issuance
Notice; provided, however, that EQR may not amend the Issuance
Amount if such amended Issuance Amount is less than the Actual Sold
Amount as of the date of such amendment.
(b)
Delivery of Issuance Notice . An Issuance Notice
shall be deemed delivered on the Trading Day that it is received by
facsimile or otherwise (and EQR confirms such delivery by e-mail
notice or by telephone (including voicemail message)) by Merrill
Lynch. No Issuance Notice may be delivered other than on a
Trading Day during the Commitment Period.
(c)
Floor Price . Merrill Lynch shall not sell
Program Shares below the Floor Price during any Selling Period and
such Floor Price may be adjusted by EQR at any time during any
Selling Period upon notice to Merrill Lynch and confirmation to
EQR.
(d)
Determination of Issuance Shares to be Sold . The
number of Issuance Shares to be sold by Merrill Lynch with respect
to any Issuance shall be the Actual Sold Amount during the Selling
Period.
(e)
Trading Guidelines . EQR consents to Merrill
Lynch trading in Program Shares for Merrill Lynch’s own
account and for the account of its clients at the same time as
sales
- 7 -
of Program Shares occur pursuant to this
Agreement, provided, however, that such consent is expressly
limited to trading activity that complies with applicable federal
and state laws, rules and regulations.
Section 2.04
Settlements . Subject to the provisions of
Article V, on or before each Settlement Date, EQR will, or
will cause its transfer agent to, electronically transfer the
applicable Issuance Shares that have been sold by crediting Merrill
Lynch or its designee’s account at the Depository Trust
Company through its Deposit/Withdrawal At Custodian (DWAC) System,
or by such other means of delivery as may be mutually agreed upon
by the parties hereto and, upon receipt of such Issuance Shares,
which in all cases shall be freely tradeable, transferable,
registered shares in good deliverable form, Merrill Lynch will
deliver the related Issuance Price in same day funds delivered to
an account designated by EQR prior to the Settlement Date. If
EQR defaults in its obligation to deliver Issuance Shares on a
Settlement Date, EQR agrees that it will (i) hold Merrill
Lynch harmless against any loss, claim, damage or expense
(including, without limitation, penalties, interest and reasonable
legal fees and expenses), as incurred, arising out of or in
connection with such default by EQR, and (ii) pay to Merrill
Lynch any Selling Commission to which it would otherwise have been
entitled absent such default. The parties acknowledge and
agree that, in performing its obligations under this Agreement,
Merrill Lynch may borrow Common Shares from stock lenders, and may
use the Issuance Shares to settle or close out such
borrowings.
Section 2.05
Use of Free Writing Prospectus . Other than the
press release to be issued by EQR on the date hereof and filed as a
free writing prospectus, a copy of which has been provided to
Merrill Lynch, neither EQR nor Merrill Lynch has prepared, used,
referred to or distributed, or will prepare, use, refer to or
distribute, without the other party’s prior written consent,
which consent shall not be unreasonably withheld, any
“written communication” which constitutes a “free
writing prospectus” as such terms are defined in
Rule 405 under the Securities Act with respect to the offering
of Program Shares contemplated by this Agreement.
Section 2.06
Alternative Sales Agents . EQR agrees that any
offer to sell, any solicitation of an offer to buy, or any sales of
Program Shares or any other equity security of EQR shall only be
effected by or through only one of Merrill Lynch or the Alternative
Sales Agents on any single given day, but in no event by more than
one, and EQR shall in no event request that Merrill Lynch and any
other Alternative Sales Agent sell Program Shares on the same
day.
Section 2.07
Exemption from Regulation M . If any party
believes that the exemptive provisions set forth in
Rule 101(c)(1) of Regulation M under the Exchange Act
(applicable to securities with an average daily trading volume of
$1,000,000 that are issued by an issuer whose common equity
securities have a public float value of at least $150,000,000) are
not satisfied with respect to EQR or the Program Shares, it shall
promptly notify the other party and sales of Program Shares under
the Sales Agency Agreements shall be suspended until that or other
exemptive provisions have been satisfied in the reasonable judgment
of all parties.
Section 2.08
Distributions under Regulation M
. Notwithstanding any other provision of this Agreement,
in the event EQR engages Merrill Lynch for a sale of Program Shares
that would constitute a “distribution” within the
meaning of Rule 100 of Regulation M under the Exchange
Act, EQR and Merrill Lynch will agree to compensation that is
customary for Merrill Lynch with respect to such
transactions.
- 8 -
Section 2.09
Material Non-Public Information . Notwithstanding
any other provision of this Agreement, Merrill Lynch shall not be
obligated to sell any Program Shares hereunder during (i) any
period in which it reasonably believes that EQR is, or could be
deemed to be, in possession of material non-public information or
(ii) during the fourteen (14) calendar days prior to any
public announcement or release disclosing EQR’s results of
operations or financial condition for a completed quarterly or
annual fiscal period.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE
TRANSACTION ENTITIES
Each of EQR and ERP, jointly and
severally, represent and warrant to Merrill Lynch, as of the
Closing Date, each Issuance Date, each Settlement Date, each
Registration Statement Amendment Date (as defined in
Section 4.07), each Request Date and each Applicable Time
(each, a “ Representation Date ”), as
follows:
Section
3.01 EQR has filed with the Commission an
automatic shelf registration statement on Form S-3 (No. 333-156156)
for the registration of EQR’s securities, including the
Common Shares, under the Securities Act, and the offering thereof
from time to time in accordance with Rule 430A or Rule 415 of the
rules and regulations of the Commission under the Securities Act
(the “ Securities Act Regulations ”), and EQR
has filed such amendments thereto as may have been required prior
to the execution of this Agreement. Such registration statement (as
amended, if applicable) became effective upon filing with the
Commission. Such registration statement and the base prospectus
constituting a part thereof (including in each case the
information, if any, deemed to be part thereof pursuant to Rule
430A, Rule 430B or Rule 430C of the Securities Act Regulations)
(the “ Base Prospectus ”) and the Prospectus
Supplement (as defined in Section 5.01(k)) and any pricing
supplement relating to a particular issuance of the Issuance Shares
(the “ Issuance Supplement ”), including all
documents incorporated therein by reference, as from time to time
amended or supplemented pursuant to the Securities Act, the
Exchange Act or otherwise, are collectively referred to herein as
the “ Registration Statement .” The term “
Prospectus ” means the Prospectus Supplement together
with the Base Prospectus and any Issuance Supplements; provided,
that if any revised prospectus shall be provided to Merrill Lynch
by EQR for use in connection with the offering of Program Shares,
including any prospectus included in any new registration statement
filed prior to the Renewal Deadline as contemplated in
Section 4.01 below, which differs from the Prospectus on file
at the Commission at the time the Registration Statement became
effective (whether or not such revised prospectus is required to be
filed by EQR pursuant to Rule 424(b) of the Securities Act
Regulations), the term “Prospectus” shall refer to each
such revised or new prospectus from and after the time it is first
provided to Merrill Lynch for such use; provided, further, that a
Prospectus Supplement shall be deemed to have supplemented the
Prospectus only with respect to the offering of Program Shares
hereunder. If EQR files a registration statement with the
Commission pursuant to Rule 462(b) of the Securities Act
Regulations (the “ Rule 462 Registration Statement
”), then, after such filing, all references to
“Registration Statement” shall also be deemed to
include the Rule 462 Registration Statement. Any prospectus
included in the Rule 462 Registration Statement shall be deemed to
be
- 9 -
part of the Prospectus. All references in this
Agreement to financial statements and schedules and other
information which is “contained,”
“included” or “stated” in the Registration
Statement or the Prospectus (and all other references of like
import) shall be deemed to mean and include all such financial
statements and schedules and other information which is or is
deemed to be incorporated by reference in the Registration
Statement or the Prospectus; and all references in this Agreement
to amendments or supplements to the Registration Statement and the
Prospectus shall be deemed to mean and include the filing of any
document under the Exchange Act which is or is deemed to be
incorporated by reference in the Registration Statement or the
Prospectus, as the case may be.
Section
3.02 The Registration Statement and the
Prospectus, at the time the Registration Statement and any
post-effective amendment thereto (including the filing of
EQR’s most recent Annual Report on Form 10-K and most recent
Quarterly Report on Form 10-Q with the Commission) became
effective, complied, and as of each Representation Date will
comply, in all material respects with the requirements of the
Securities Act and the Securities Act Regulations; the Prospectus,
at the time of filing thereof, complied, and as of each
Representation Date will comply, in all material respects with the
requirements of the Securities Act and the Securities Act
Regulations; the Registration Statement, at the time the
Registration Statement became effective, did not, and as of each
Representation Date, will not, contain an untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading; the Prospectus, at the time of filing thereof, did not,
and as of each Representation Date, will not, include an untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; the
Prospectus, as of each Representation Date, and the applicable
Issuer Free Writing Prospectus(es), if any, issued at or prior to
the Applicable Time, taken together (collectively, and, with
respect to any Program Shares, together with the public offering
price of such Program Shares, the “ General Disclosure
Package ”) as of each Applicable Time and the Closing
Date, as the case may be, will not contain any untrue statement of
a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the representations
and warranties in this subsection shall not apply to statements in,
or omissions from, the Registration Statement, the Prospectus or
any Issuer Free Writing Prospectus(es) made in reliance upon, and
in conformity with, information furnished to EQR in writing by
Merrill Lynch expressly for use in the Registration Statement, the
Prospectus or the Issuer Free Writing Prospectus(es), as
applicable; and provided further, that the foregoing
representations and warranties are given on the basis that any
statement contained in a document incorporated or deemed to be
incorporated in the General Disclosure Package prior to any
Settlement Date shall be deemed not to be contained in the General
Disclosure Package to the extent that such statement has been
modified or superseded by any subsequent statement in the General
Disclosure Package.
Section
3.03 (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 or incorporated report filed
pursuant to Section 13 or 15(d) of the Exchange Act or form of
prospectus), (C) at the time EQR or any person acting on its
behalf (within the meaning, for this clause only, of Rule 163(c) of
the Securities Act) made any offer relating to the Program Shares
in reliance on the exemption of Rule 163 of the Securities Act, and
(D) as of the date of the execution and delivery of
this
- 10 -
Agreement, EQR was and is a “well-known
seasoned issuer” as defined in Rule 405 of the Securities
Act. The Registration Statement is an “automatic shelf
registration statement,” as defined in Rule 405 of the 1933
Act, that initially became effective within three years of the date
hereof, EQR has not received from the Commission any notice
pursuant to Rule 401(g)(2) of the Securities Act objecting to use
of the automatic shelf registration statement form and EQR has not
otherwise ceased to be eligible to use the automatic shelf
registration statement form. EQR meets the eligibility requirements
for use of a registration statement on Form S-3 in connection with
the offer and sale of the Program Shares.
Section
3.04 (A) At the earliest time after the
filing of the Registration Statement relating to the Program Shares
that EQR or another offering participant made a bona fide offer
(within the meaning of Rule 164(h)(2) of the Securities Act) and
(B) as of the date of the execution and delivery of this
Agreement,