Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on the basis of the representations and warranties herein contained and shall be subject to the terms and conditions set forth herein or in the applicable Terms Agreement. (b) In addition, on the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company or the Operating Partnership, as the case may be, may grant, if so provided in the applicable Terms Agreement relating to the Initial Underwritten Securities, an option to the Underwriters named in such Terms Agreement, severally and not jointly, to purchase up to the number of Option Securities set forth therein at the same price per Option Security as is applicable to the Initial Underwritten Securities, less an amount equal to any dividends or distributions declared by the Company and paid or payable on the Initial Underwritten Securities but not payable on the Option Securities. Such option, if granted, will expire 30 days (or such lesser number of days as may be specified in the applicable Terms Agreement) after the Representation Date relating to the Initial Underwritten Securities, and may be exercised in whole or in part from time to time upon notice by the Representatives to the Company or the Operating Partnership, as the case may be, setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time, date and place of payment and delivery for such Option Securities. Any such time, date and place of delivery (a “Date of Delivery”) shall be determined by the Representatives, but shall not be later than seven full business days nor earlier than two full business days after the exercise of said option, nor in any event prior to the Closing Time, unless otherwise agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be. If the option is exercised as to all or any portion of the Option Securities, each of the Underwriters, acting severally and not jointly, will purchase that proportion of the total number of Option Securities then being purchased which the number of Initial Underwritten Securities each such Underwriter has severally agreed to purchase as set forth in the applicable Terms Agreement bears to the total number of Initial Underwritten Securities (except as otherwise provided in the applicable Terms Agreement), subject to such adjustments as the Representatives in their discretion shall make to eliminate any sales or purchases of fractional Underwritten Securities. (c) Payment of the purchase price for, and delivery of certificates for, the Initial Underwritten Securities to be purchased by the Underwriters shall be made at the offices of Xxxxxxxx Chance US LLP, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, at 10:00 A.M. on the fourth business day (or the third business day if required under Rule 15c6-1 of the 1934 Act, or unless postponed in accordance with the provisions of Section 10) following the date of the applicable Terms Agreement or at such other time as shall be agreed upon by the Representatives and the Company (such time and date of payment and delivery being herein called the “Closing Time”). In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates for, such Option Securities shall be made at the above-mentioned offices of Xxxxxxxx Chance US LLP, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, on each Date of Delivery as specified in the notice from the Representatives to the Company. Payment for the Underwritten Securities shall be made to the Company or the Operating Partnership, as the case may be, by wire transfer of immediately available funds to a bank account designated by the Company or the Operating Partnership, as the case may be, against delivery to the Representatives for the respective accounts of the Underwriters of the Underwritten Securities to be purchased by them. Certificates for the Underwritten Securities and the Option Securities, if any, shall be in such denominations and registered in such names as the Representatives may request in writing at least two business days before the Closing Time or the relevant Date of Delivery, as the case may be. It is understood that each Underwriter has authorized the Representatives, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Underwritten Securities and the Option Securities, if any, which it has agreed to purchase. The Representatives, individually and not as representatives of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Underwritten Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have not been received by the Closing Time or the relevant Date of Delivery, as the case may be, but any such payment shall not relieve such Underwriter from its obligations hereunder. The certificates for the Initial Securities and the Option Securities, if any, will be made available for examination and packaging by the Representatives not later than 10:00 A.M. on the last business day prior to the Closing Time or the relevant Date of Delivery, as the case may be, in New York, New York. If authorized by the applicable Terms Agreement, the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company or the Operating Partnership, as the case may be, pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially in the form of Exhibit B hereto with such changes therein as the Company or the Operating Partnership, as the case may be, may approve. As compensation for arranging Delayed Delivery Contracts, the Company or the Operating Partnership, as the case may be, will pay to the Representatives at Closing Time, for the respective accounts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors of the types described in the Prospectus. At the applicable Closing Time, the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery Contracts.
Appears in 7 contracts
Samples: Terms Agreement (Duke Realty Limited Partnership/), Terms Agreement (Duke Realty Limited Partnership/), Terms Agreement (Duke Realty Limited Partnership/)
Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on the basis of the representations and warranties herein contained and shall be subject to the terms and conditions set forth herein or in the applicable Terms Agreement.
(b) In addition, on the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company or the Operating Partnership, as the case may be, may grant, if so provided in the applicable Terms Agreement relating to the Initial Underwritten Securities, an option to the Underwriters named in such Terms Agreement, severally and not jointly, to purchase up to the number of Option Securities set forth therein at the same price per Option Security as is applicable to the Initial Underwritten Securities, less an amount equal to any dividends or distributions declared by the Company and paid or payable on the Initial Underwritten Securities but not payable on the Option Securities. Such option, if granted, will expire 30 days (or such lesser number of days as may be specified in the applicable Terms Agreement) after the Representation Date relating to the Initial Underwritten Securities, and may be exercised in whole or in part from time to time only for the purpose of covering over-allotments which may be made in connection with the offering and distribution of the Initial Underwritten Securities upon notice by the Representatives to the Company or the Operating Partnership, as the case may be, setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time, date and place of payment and delivery for such Option Securities. Any such time, date and place of delivery (a “Date of Delivery”) shall be determined by the Representatives, but shall not be later than seven full business days nor earlier than two full business days after the exercise of said option, nor in any event prior to the Closing Time, unless otherwise agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be. If the option is exercised as to all or any portion of the Option Securities, each of the Underwriters, acting severally and not jointly, will purchase that proportion of the total number of Option Securities then being purchased which the number of Initial Underwritten Securities each such Underwriter has severally agreed to purchase as set forth in the applicable Terms Agreement bears to the total number of Initial Underwritten Securities (except as otherwise provided in the applicable Terms Agreement), subject to such adjustments as the Representatives in their discretion shall make to eliminate any sales or purchases of fractional Underwritten Securities.
(c) Payment of the purchase price for, and delivery of certificates for, the Initial Underwritten Securities to be purchased by the Underwriters shall be made at the offices of Xxxxxxxx Chance US LLP, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, at 10:00 A.M. on the fourth business day (or the third business day if required under Rule 15c6-1 of the 1934 Act, or unless postponed in accordance with the provisions of Section 10) following the date of the applicable Terms Agreement or at such other time as shall be agreed upon by the Representatives and the Company (such time and date of payment and delivery being herein called the “Closing Time”). In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates for, such Option Securities shall be made at the above-mentioned offices of Xxxxxxxx Chance US LLP, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, on each Date of Delivery as specified in the notice from the Representatives to the Company. Payment for the Underwritten Securities shall be made to the Company or the Operating Partnership, as the case may be, by wire transfer of immediately available funds to a bank account designated by the Company or the Operating Partnership, as the case may be, against delivery to the Representatives for the respective accounts of the Underwriters of the Underwritten Securities to be purchased by them. Certificates for the Underwritten Securities and the Option Securities, if any, shall be in such denominations and registered in such names as the Representatives may request in writing at least two business days before the Closing Time or the relevant Date of Delivery, as the case may be. It is understood that each Underwriter has authorized the Representatives, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Underwritten Securities and the Option Securities, if any, which it has agreed to purchase. The Representatives, individually and not as representatives of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Underwritten Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have not been received by the Closing Time or the relevant Date of Delivery, as the case may be, but any such payment shall not relieve such Underwriter from its obligations hereunder. The certificates for the Initial Securities and the Option Securities, if any, will be made available for examination and packaging by the Representatives not later than 10:00 A.M. on the last business day prior to the Closing Time or the relevant Date of Delivery, as the case may be, in New York, New York. If authorized by the applicable Terms Agreement, the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company or the Operating Partnership, as the case may be, pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially in the form of Exhibit B hereto with such changes therein as the Company or the Operating Partnership, as the case may be, may approve. As compensation for arranging Delayed Delivery Contracts, the Company or the Operating Partnership, as the case may be, will pay to the Representatives at Closing Time, for the respective accounts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors of the types described in the Prospectus. At the applicable Closing Time, the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery Contracts.
Appears in 6 contracts
Samples: Terms Agreement (Duke Realty Limited Partnership/), Terms Agreement (Duke Realty Limited Partnership/), Underwriting Agreement (Duke Realty Limited Partnership/)
Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on the basis of the representations and warranties herein contained and shall be subject to the terms and conditions set forth herein or in the applicable Terms Agreement.
(b) In addition, on the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company or the Operating Partnership, as the case may be, may grant, if so provided in the applicable Terms Agreement relating to the Initial Underwritten Securities, an option to the Underwriters named in such Terms Agreement, severally and not jointly, to purchase up to the number of Option Securities set forth therein at the same price per Option Security as is applicable to the Initial Underwritten Securities, less an amount equal to any dividends or distributions declared by the Company and paid or payable on the Initial Underwritten Securities but not payable on the Option Securities. Such option, if granted, will expire 30 days (or such lesser number of days as may be specified in the applicable Terms Agreement) after the Representation Date relating to the Initial Underwritten Securities, and may be exercised in whole or in part from time to time upon notice by the Representatives to the Company or the Operating Partnership, as the case may be, setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time, date and place of payment and delivery for such Option Securities. Any such time, date and place of delivery (a “Date of Delivery”) shall be determined by the Representatives, but shall not be later than seven full business days nor earlier than two full business days after the exercise of said option, nor in any event prior to the Closing Time, unless otherwise agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be. If the option is exercised as to all or any portion of the Option Securities, each of the Underwriters, acting severally and not jointly, will purchase that proportion of the total number of Option Securities then being purchased which the number of Initial Underwritten Securities each such Underwriter has severally agreed to purchase as set forth in the applicable Terms Agreement bears to the total number of Initial Underwritten Securities (except as otherwise provided in the applicable Terms Agreement), subject to such adjustments as the Representatives in their discretion shall make to eliminate any sales or purchases of fractional Underwritten Securities.
(c) Payment of the purchase price for, and delivery of certificates for, the Initial Underwritten Securities to be purchased by the Underwriters shall be made at the offices of Xxxxxxxx Chance US LLP, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, at 10:00 A.M. on the fourth fifth business day (or the third second business day if required under Rule 15c6-1 of the 1934 Act, or unless postponed in accordance with the provisions of Section 10) following the date of the applicable Terms Agreement or at such other time as shall be agreed upon by the Representatives and the Company (such time and date of payment and delivery being herein called the “Closing Time”). In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates for, such Option Securities shall be made at the above-mentioned offices of Xxxxxxxx Chance US LLP, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, on each Date of Delivery as specified in the notice from the Representatives to the Company. Payment for the Underwritten Securities shall be made to the Company or the Operating Partnership, as the case may be, by wire transfer of immediately available funds to a bank account designated by the Company or the Operating Partnership, as the case may be, against delivery to the Representatives for the respective accounts of the Underwriters of the Underwritten Securities to be purchased by them. Certificates for the Underwritten Securities and the Option Securities, if any, shall be in such denominations and registered in such names as the Representatives may request in writing at least two business days before the Closing Time or the relevant Date of Delivery, as the case may be. It is understood that each Underwriter has authorized the Representatives, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Underwritten Securities and the Option Securities, if any, which it has agreed to purchase. The Representatives, individually and not as representatives of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Underwritten Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have not been received by the Closing Time or the relevant Date of Delivery, as the case may be, but any such payment shall not relieve such Underwriter from its obligations hereunder. The certificates for the Initial Securities and the Option Securities, if any, will be made available for examination and packaging by the Representatives not later than 10:00 A.M. on the last business day prior to the Closing Time or the relevant Date of Delivery, as the case may be, in New York, New York. If authorized by the applicable Terms Agreement, the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company or the Operating Partnership, as the case may be, pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially in the form of Exhibit B hereto with such changes therein as the Company or the Operating Partnership, as the case may be, may approve. As compensation for arranging Delayed Delivery Contracts, the Company or the Operating Partnership, as the case may be, will pay to the Representatives at Closing Time, for the respective accounts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors of the types described in the Prospectus. At the applicable Closing Time, the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery Contracts.
Appears in 5 contracts
Samples: Terms Agreement (DUKE REALTY LTD PARTNERSHIP/), Terms Agreement (DUKE REALTY LTD PARTNERSHIP/), Terms Agreement (DUKE REALTY LTD PARTNERSHIP/)
Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on the basis of the representations and warranties herein contained and shall be subject to the terms and conditions set forth herein or in the applicable Terms Agreement.
(b) In addition, on On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company or the Operating Partnership, as the case may be, may grant, if so provided in the applicable Terms Agreement relating Trust agrees to the Initial Underwritten Securities, an option sell to the Underwriters named in such Terms Agreementeach Underwriter, severally and not jointly, to purchase up to the number of Option Securities set forth therein at the same price per Option Security as is applicable to the Initial Underwritten Securitiesand each Underwriter, less an amount equal to any dividends or distributions declared by the Company and paid or payable on the Initial Underwritten Securities but not payable on the Option Securities. Such option, if granted, will expire 30 days (or such lesser number of days as may be specified in the applicable Terms Agreement) after the Representation Date relating to the Initial Underwritten Securities, and may be exercised in whole or in part from time to time upon notice by the Representatives to the Company or the Operating Partnership, as the case may be, setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time, date and place of payment and delivery for such Option Securities. Any such time, date and place of delivery (a “Date of Delivery”) shall be determined by the Representatives, but shall not be later than seven full business days nor earlier than two full business days after the exercise of said option, nor in any event prior to the Closing Time, unless otherwise agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be. If the option is exercised as to all or any portion of the Option Securities, each of the Underwriters, acting severally and not jointly, will purchase that proportion of the total number of Option Securities then being purchased which the number of Initial Underwritten Securities each such Underwriter has severally agreed agrees to purchase as from the Trust, at the price per security set forth in the applicable Terms Agreement bears to Schedule B, the total number of Initial Underwritten Capital Securities set forth in Schedule A opposite the name of such Underwriter (except as otherwise provided in the applicable Terms AgreementSchedule B), subject plus any additional number of Capital Securities that such Underwriter may become obligated to such adjustments as purchase pursuant to the provisions of Section 9 hereof. The purchase price per security to be paid by the several Underwriters for the Capital Securities shall be an amount equal to the initial public offering price. The initial public offering price per Capital Security shall be a fixed price to be determined by agreement between the Underwriter and the Offerors. The initial public offering price and the purchase price are be set forth in Schedule B. As compensation to the Underwriters for their commitments hereunder and in view of the fact that the proceeds of the sale of the Capital Securities will be used to purchase the Junior Subordinated Notes of the Company, the Company hereby agrees to pay at Closing Time directly to the Underwriters, a commission per Capital Security determined by agreement between the Representatives and the Company for the Capital Securities to be delivered by the Trust hereunder at Closing Time. The commission is set forth in their discretion shall make to eliminate any sales or purchases of fractional Underwritten Securities.Schedule B.
(cb) Payment of the purchase price for, and delivery of certificates for, the Initial Underwritten Capital Securities to be purchased by the Underwriters shall be made at the offices office of Xxxxxxxx Chance US LLP, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000Stroock & Stroock & Xxxxx, or at such other place as shall be agreed upon by the Representatives Representatives, the Company and the Company or the Operating Partnership, as the case may beTrust, at 10:00 A.M. New York time on the fourth business day (or the third business day if required under Rule 15c6-1 of the 1934 Act, or unless postponed in accordance with the provisions of Section 109) following after the date of the applicable Terms Agreement hereof, or at such other time not later than ten business days after such date as shall be agreed upon by the Representatives Representatives, the Trust and the Company (such time and date of payment and delivery being herein called the “"Closing Time”"). In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates for, such Option Securities shall be made at the above-mentioned offices of Xxxxxxxx Chance US LLP, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, on each Date of Delivery as specified in the notice from the Representatives to the Company. Payment for the Underwritten Securities shall be made to the Company or the Operating Partnership, as the case may be, Trust by wire transfer or certified or official bank check or similar same day funds payable to the order of immediately available funds the Trust to a bank an account designated by the Company or the Operating Partnership, as the case may beTrust, against delivery to the Representatives for the respective accounts of the Underwriters of certificates for the Underwritten Capital Securities to be purchased by them. Certificates Unless otherwise agreed, certificates for the Underwritten Capital Securities and the Option Securities, if any, shall be in the form set forth in the Declaration, and such denominations certificates shall be deposited with a custodian (the "Custodian") for The Depository Trust Company ("DTC") and registered in such names as the Representatives may request in writing at least two business days before the Closing Time or the relevant Date name of DeliveryCede & Co., as the case may be. It is understood that each Underwriter has authorized the Representatives, nominee for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Underwritten Securities and the Option Securities, if any, which it has agreed to purchase. The Representatives, individually and not as representatives of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Underwritten Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have not been received by the Closing Time or the relevant Date of Delivery, as the case may be, but any such payment shall not relieve such Underwriter from its obligations hereunder. The certificates for the Initial Securities and the Option Securities, if any, will be made available for examination and packaging by the Representatives not later than 10:00 A.M. on the last business day prior to the Closing Time or the relevant Date of Delivery, as the case may be, in New York, New York. If authorized by the applicable Terms Agreement, the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company or the Operating Partnership, as the case may be, pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially in the form of Exhibit B hereto with such changes therein as the Company or the Operating Partnership, as the case may be, may approve. As compensation for arranging Delayed Delivery Contracts, the Company or the Operating Partnership, as the case may be, will pay to the Representatives at Closing Time, for the respective accounts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors of the types described in the ProspectusDTC. At the applicable Closing Time, the Company will pay, or cause to be paid, the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by commission payable at such time to the Underwriters and previously approved under this Section 2 hereof by the Company wire transfer or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity certified or performance of Delayed Delivery Contracts. The Representatives shall submit official bank check or checks payable to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery Contractssame day funds.
Appears in 3 contracts
Samples: Underwriting Agreement (Nb Capital Trust Ii), Underwriting Agreement (Nb Capital Trust V), Underwriting Agreement (Nb Capital Trust Iii)
Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on the basis of the representations and warranties herein contained and shall be subject to the terms and conditions set forth herein or in the applicable Terms Agreement.
(b) In addition, on the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company or the Operating Partnership, as the case may be, may grant, if so provided in the applicable Terms Agreement relating to the Initial Underwritten Securities, an option to the Underwriters named in such Terms Agreement, severally and not jointly, to purchase up to the number of the Option Underwritten Securities set forth therein at the same a price per Option Underwritten Security as is applicable equal to the price per Initial Underwritten SecuritiesSecurity, less an amount equal to any dividends or distributions declared by the Company or the Operating Partnership and paid or payable on the Initial Underwritten Securities but not payable on the Option Underwritten Securities. Such option, if granted, will expire 30 days (or such lesser number of days as may be specified in the applicable Terms Agreement) Agreement after the Representation Date relating to the Initial Underwritten Securities, and may be exercised in whole or in part from time to time only for the purpose of covering over-allotments which may be made in connection with the offering and distribution of the Initial Underwritten Securities upon notice by the Representatives you to the Company or the Operating Partnership, as the case may be, setting forth the number of Option Underwritten Securities as to which the several Underwriters are then exercising the option and the time, date and place of payment and delivery for such Option Underwritten Securities. Any such time, time and date of payment and place of delivery (each, a “"Date of Delivery”") shall be determined by the Representativesyou, but shall not be later than seven full business days nor and not be earlier than two full business days after the exercise of said option, nor in any event prior to the Closing Time, unless otherwise agreed upon by the Representatives you and the Company or the Operating Partnership, as the case may beCompany. If the option is exercised as to all or any portion of the Option Underwritten Securities, each of the Underwriters, acting severally and not jointly, will purchase that proportion of the total number of Option Underwritten Securities then being purchased which the number of Initial Underwritten Securities each such Underwriter has severally agreed to purchase as set forth in the applicable such Terms Agreement bears to the total number of Initial Underwritten Securities (except as otherwise provided in the applicable Terms Agreement)Securities, subject to such adjustments as the Representatives you in their your discretion shall make to eliminate any sales or purchases of a fractional number of Option Underwritten Securities.
(c) Payment of the purchase price for, and delivery of certificates forof, the Initial Underwritten Securities to be purchased by the Underwriters shall be made at the offices of Xxxxxxxx Chance US LLPHogax & Xartxxx X.X.P., 00 Xxxx 00xx 555 Xxxxxxxxxx Xxxxxx, Xxx XxxxX.X., Xxx Xxxx Xxxxxxxxxx, X.X. 00000, or xx at such other place as shall be agreed upon by the Representatives you and the Company or the Operating Partnership, as the case may beCompany, at 10:00 A.M. 9:00 a.m. (Eastern time) on the fourth business day (or the third business day if required under Rule 15c6-1 of the 1934 Act, or unless postponed in accordance with the provisions of Section 10) following the date of the applicable Terms Agreement Agreement, or at such other time as shall be agreed upon by the Representatives you and the Company (each such time and date of payment and delivery being herein called the “a "Closing Time”"). In addition, in the event that the Underwriters have exercised their option, if any, to purchase any or all of the Option Securities are purchased by the UnderwritersUnderwritten Securities, payment of the purchase price for, and delivery of certificates for, such Option Securities Underwritten Securities, shall be made at the above-mentioned offices of Xxxxxxxx Chance US LLPHogax & Xartxxx X.X.P., or at such other place as shall be agreed upon by the Representatives you and the Company or the Operating Partnership, as the case may beCompany, on each the relevant Date of Delivery as specified in the notice from the Representatives to the Company. Payment for the Underwritten Securities shall be made you to the Company or the Operating Partnership, as . Payment shall be made to the case may be, Company by wire transfer or by certified or official bank check or checks drawn in Federal or similar same-day funds payable to the order of immediately available funds to a bank account designated by the Company or the Operating Partnership, as the case may be, against delivery to the Representatives you for the respective accounts of the Underwriters of the Underwritten Securities to be purchased by them. Certificates for the Underwritten Securities and the Option Securities, if any, shall be in such denominations and registered in such names as the Representatives may request in writing at least two business days before the Closing Time or the relevant Date of Delivery, as the case may be. It is understood that each Underwriter has authorized the Representativesyou, for its account, to accept delivery of, receipt for, and make payment of the purchase price forprice, for the Underwritten Securities and the Option Securities, if any, which it has severally agreed to purchase. The RepresentativesYou, individually and not as representatives representative of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Underwritten Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have check has not been received by the Closing Time or the relevant Date of Delivery, as the case may be, but any such payment shall not relieve such Underwriter from its obligations hereunder.
(d) The Underwritten Securities, or, if applicable, Depositary Receipts evidencing the Depositary Shares, shall be in such authorized denominations and registered in such names as you may request in writing at least two full business days prior to the applicable Closing Time or the relevant Date of Delivery, as the case may be. The certificates for the Initial Underwritten Securities and the Option Securities, if any, will be made available for examination and packaging by you on or before the Representatives not later than 10:00 A.M. on the last first business day prior to the Closing Time or the relevant Date of Delivery, as the case may be, in New York, New York. If authorized by the applicable Terms Agreement, the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company or the Operating Partnership, as the case may be, pursuant to delayed delivery contracts (“"Delayed Delivery Contracts”") substantially in the form of Exhibit B hereto with such changes therein as the Company or the Operating Partnership, as the case may be, may approve. As compensation for arranging Delayed Delivery Contracts, the Company or the Operating Partnership, as the case may be, will pay to the Representatives you at Closing Time, for the respective accounts of the Underwriters, a fee equal to that percentage specified in the applicable Terms Agreement for each of the amount of Underwritten Securities for which Delayed Delivery contracts Contracts are made at the applicable Closing Time as is specified in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors of the types described in the Prospectus. At the applicable Closing Time, the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount number of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount number of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives You shall submit to the Company or the Operating Partnership, as the case may beCompany, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount number of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives you, at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount number of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount number of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount number of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives you to the Company or the Operating Partnership, as the case may beCompany; provided, however, that the total amount number of Underwritten Securities to be purchased by all Underwriters shall be the total amount number of Underwritten Securities covered by the applicable Terms Agreement, less the amount number of Underwritten Securities covered by Delayed Delivery Contracts.
Appears in 3 contracts
Samples: Purchase Agreement (Post Properties Inc), Purchase Agreement (Post Properties Inc), Purchase Agreement (Post Properties Inc)
Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on the basis of the representations and warranties herein contained and shall be subject to the terms and conditions set forth herein or in the applicable Terms Agreement.
(b) In addition, on the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company or the Operating Partnership, as the case may be, may grant, if so provided in the applicable Terms Agreement relating to the Initial Underwritten Securities, an option to the Underwriters named in such Terms Agreement, severally and not jointly, to purchase up to the number of Option Securities set forth therein at the same price per Option Security as is applicable to the Initial Underwritten Securities, less an amount equal to any dividends or distributions declared by the Company and paid or payable on the Initial Underwritten Securities but not payable on the Option Securities. Such option, if granted, will expire 30 days (or such lesser number of days as may be specified in the applicable Terms Agreement) after the Representation Date relating to the Initial Underwritten Securities, and may be exercised in whole or in part from time to time only for the purpose of covering over-allotments which may be made in connection with the offering and distribution of the Initial Underwritten Securities upon notice by the Representatives to the Company or the Operating Partnership, as the case may be, setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time, date and place of payment and delivery for such Option Securities. Any such time, date and place of delivery (a “Date of Delivery”) shall be determined by the Representatives, but shall not be later than seven full business days nor earlier than two full business days after the exercise of said option, nor in any event prior to the Closing Time, unless otherwise agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be. If the option is exercised as to all or any portion of the Option Securities, each of the Underwriters, acting severally and not jointly, will purchase that proportion of the total number of Option Securities then being purchased which the number of Initial Underwritten Securities each such Underwriter has severally agreed to purchase as set forth in the applicable Terms Agreement bears to the total number of Initial Underwritten Securities (except as otherwise provided in the applicable Terms Agreement), subject to such adjustments as the Representatives in their discretion shall make to eliminate any sales or purchases of fractional Underwritten Securities.
(c) Payment of the purchase price for, and delivery of certificates for, the Initial Underwritten Securities to be purchased by the Underwriters shall be made at the offices of Xxxxxxxx Chance US LLP, 00 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, at 10:00 A.M. on the fourth business day (or the third business day if required under Rule 15c6-1 of the 1934 Act, or unless postponed in accordance with the provisions of Section 10) following the date of the applicable Terms Agreement or at such other time as shall be agreed upon by the Representatives and the Company (such time and date of payment and delivery being herein called the “Closing Time”). In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates for, such Option Securities shall be made at the above-mentioned offices of Xxxxxxxx Chance US LLP, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, on each Date of Delivery as specified in the notice from the Representatives to the Company. Payment for the Underwritten Securities shall be made to the Company or the Operating Partnership, as the case may be, by wire transfer of immediately available funds to a bank account designated by the Company or the Operating Partnership, as the case may be, against delivery to the Representatives for the respective accounts of the Underwriters of the Underwritten Securities to be purchased by them. Certificates for the Underwritten Securities and the Option Securities, if any, shall be in such denominations and registered in such names as the Representatives may request in writing at least two business days before the Closing Time or the relevant Date of Delivery, as the case may be. It is understood that each Underwriter has authorized the Representatives, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Underwritten Securities and the Option Securities, if any, which it has agreed to purchase. The Representatives, individually and not as representatives of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Underwritten Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have not been received by the Closing Time or the relevant Date of Delivery, as the case may be, but any such payment shall not relieve such Underwriter from its obligations hereunder. The certificates for the Initial Securities and the Option Securities, if any, will be made available for examination and packaging by the Representatives not later than 10:00 A.M. on the last business day prior to the Closing Time or the relevant Date of Delivery, as the case may be, in New York, New York. If authorized by the applicable Terms Agreement, the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company or the Operating Partnership, as the case may be, pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially in the form of Exhibit B hereto with such changes therein as the Company or the Operating Partnership, as the case may be, may approve. As compensation for arranging Delayed Delivery Contracts, the Company or the Operating Partnership, as the case may be, will pay to the Representatives at Closing Time, for the respective accounts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors of the types described in the Prospectus. At the applicable Closing Time, the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery Contracts.
Appears in 3 contracts
Samples: Underwriting Agreement (Duke Realty Corp), Underwriting Agreement (Duke Realty Corp), Underwriting Agreement (Duke Realty Limited Partnership/)
Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on the basis of the representations and warranties herein contained and shall be subject to the terms and conditions set forth herein or in the applicable Terms Agreement.
(b) In addition, on On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company or the Operating Partnershipagrees to sell to each Underwriter, as the case may be, may grant, if so provided in the applicable Terms Agreement relating to the Initial Underwritten Securities, an option to the Underwriters named in such Terms Agreementand each Underwriter agrees, severally and not jointly, to purchase up to from the number Company, at the purchase price specified in Schedule C hereto, the amount of Option Securities set forth therein at opposite the same price per Option Security as is applicable name of such Underwriter in Schedule B plus any additional principal amount of Securities such Underwriter may become obligated to purchase pursuant to the Initial Underwritten Securities, less an amount equal to any dividends or distributions declared by the provisions of Section 11 hereof. The Company and paid or payable on the Initial Underwritten Securities but not payable on the Option Securities. Such option, if granted, will expire 30 days (or such lesser number of days as may be specified in the applicable Terms Agreement) after the Representation Date relating to the Initial Underwritten Securities, and may be exercised in whole or in part from time to time upon notice by the Representatives to the Company or the Operating Partnership, as the case may be, setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time, date and place of payment and delivery for such Option Securities. Any such time, date and place of delivery (a “Date of Delivery”) shall be determined by the Representatives, but shall not be later than seven full business days nor earlier than two full business days after the exercise of said option, nor in obligated to deliver any event prior to the Closing Time, unless otherwise agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be. If the option is exercised as to all or any portion of the Option Securities, each of Securities except upon payment for all the Underwriters, acting severally and not jointly, will purchase Securities to be purchased as provided herein. It is understood that proportion of you propose to offer the total number of Option Securities then being purchased which the number of Initial Underwritten Securities each such Underwriter has severally agreed to purchase for sale as set forth in the applicable Terms Agreement bears to Disclosure Package and the total number of Initial Underwritten Securities (except as otherwise provided in the applicable Terms Agreement), subject to such adjustments as the Representatives in their discretion shall make to eliminate any sales or purchases of fractional Underwritten SecuritiesProspectus.
(cb) Payment The closing of the purchase price for, and delivery of certificates for, the Initial Underwritten Securities to be purchased by the Underwriters shall be made occur at the offices office of Xxxxxxx Xxxxxxx & Xxxxxxxx Chance US LLP, 00 Xxxx 00xx 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may beCompany, at 10:00 A.M. 9:30 a.m. (London time) on the fourth business day after the date hereof (or the third business day if required under Rule 15c6-1 of the 1934 Act, or unless postponed in accordance with the provisions of Section 10) following the date of the applicable Terms Agreement 11), or at such other time not later than ten business days after such date as shall be agreed upon by the Representatives and the Company (such time and date of payment and delivery being herein called the “Closing Time”). In addition, in .
(c) Payment for the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates for, such Option Securities shall be made at the above-mentioned offices of Xxxxxxxx Chance US LLP, or at such other place as shall be agreed upon by the Representatives and on behalf of the Company or the Operating Partnership, as the case may be, on each Date of Delivery as specified Underwriters in the notice from the Representatives to the Company. Payment for the Underwritten Securities shall be made to the Company or the Operating Partnership, as the case may be, by wire transfer of immediately available funds to a bank account designated by the Company or the Operating PartnershipElavon Financial Services Limited, UK Branch, as common depositary (the case may be“Common Depositary”) for Clearstream Banking, société anonyme (“Clearstream”) and Euroclear Bank S.A./N.V. (“Euroclear”) against delivery to the Representatives Common Depositary, for the respective accounts of the Underwriters Underwriters, of one or more global notes representing the Underwritten Securities to be purchased by themthem (collectively, the “Global Notes”), with any transfer taxes payable in connection with the sale of the Securities duly paid by the Company. Certificates The Global Notes will be made available for inspection by the Underwritten Securities and Underwriters not later than 1:00 p.m. (New York City time) on the Option Securities, if any, shall be in such denominations and registered in such names as the Representatives may request in writing at least two business days before day prior to the Closing Time or the relevant Date of Delivery, as the case may beTime. It is understood that each Underwriter has authorized the Representatives, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Underwritten Securities and the Option Securities, if any, which it has agreed to purchase. The RepresentativesEach of BNP Paribas, Citigroup Global Markets Limited, Deutsche Bank AG, London Branch, ING Bank N.V. and Xxxxx Fargo Securities International Limited, individually and not as representatives representative of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Underwritten Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have not been received by the Closing Time or the relevant Date of Delivery, as the case may beTime, but any such payment shall not relieve such Underwriter from its obligations hereunder. The certificates for the Initial Securities and the Option Securities, if any, will be made available for examination and packaging by the Representatives not later than 10:00 A.M. on the last business day prior to the Closing Time or the relevant Date of Delivery, as the case may be, in New York, New York. If authorized by the applicable Terms Agreement, the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company or the Operating Partnership, as the case may be, pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially in the form of Exhibit B hereto with such changes therein as the Company or the Operating Partnership, as the case may be, may approve. As compensation for arranging Delayed Delivery Contracts, the Company or the Operating Partnership, as the case may be, will pay to the Representatives at Closing Time, for the respective accounts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors of the types described in the Prospectus. At the applicable Closing Time, the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery Contracts.
Appears in 2 contracts
Samples: Underwriting Agreement, Underwriting Agreement (Fedex Corp)
Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on the basis of the representations and warranties herein contained and shall be subject to the terms and conditions set forth herein or in the applicable Terms Agreement.
(b) In addition, on On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company or the Operating Partnership, as the case may be, may grant, if so provided in the applicable Terms Agreement relating Trust agrees to the Initial Underwritten Securities, an option sell to the Underwriters named in such Terms Agreementeach Underwriter, severally and not jointly, to purchase up to the number of Option Securities set forth therein at the same price per Option Security as is applicable to the Initial Underwritten Securitiesand each Underwriter, less an amount equal to any dividends or distributions declared by the Company and paid or payable on the Initial Underwritten Securities but not payable on the Option Securities. Such option, if granted, will expire 30 days (or such lesser number of days as may be specified in the applicable Terms Agreement) after the Representation Date relating to the Initial Underwritten Securities, and may be exercised in whole or in part from time to time upon notice by the Representatives to the Company or the Operating Partnership, as the case may be, setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time, date and place of payment and delivery for such Option Securities. Any such time, date and place of delivery (a “Date of Delivery”) shall be determined by the Representatives, but shall not be later than seven full business days nor earlier than two full business days after the exercise of said option, nor in any event prior to the Closing Time, unless otherwise agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be. If the option is exercised as to all or any portion of the Option Securities, each of the Underwriters, acting severally and not jointly, will purchase that proportion of the total number of Option Securities then being purchased which the number of Initial Underwritten Securities each such Underwriter has severally agreed agrees to purchase as from the Trust, at the price per security set forth in the applicable Terms Agreement bears to Pricing Agreement, the total number of Initial Underwritten Preferred Securities set forth in Schedule A opposite the name of such Underwriter (except as otherwise provided in the applicable Terms Pricing Agreement), subject plus any additional number of Preferred Securities that such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereof. The purchase price per security to be paid by the several Underwriters for the Preferred Securities shall be an amount equal to the initial public offering price. The initial public offering price per Preferred Security shall be a fixed price to be determined by agreement between the Representative and the Offerors. The initial public offering price and the purchase price, when so determined, shall be set forth in the Pricing Agreement. In the event that such adjustments prices have not been agreed upon and the Pricing Agreement has not been executed and delivered by all parties thereto by the close of business on the fourth business day following the date of this Agreement, this Agreement shall terminate forthwith, without liability of any party to any other party, unless otherwise agreed to by the Offerors and the Representative. As compensation to the Underwriters for their commitments hereunder and in view of the fact that the proceeds of the sale of the Preferred Securities will be used to purchase the Subordinated Debt Securities of the Company, the Company hereby agrees to pay at Closing Time (as defined below) to the Representatives Representative, for the accounts of the several Underwriters, a commission per Preferred Security determined by agreement between the Representative and the Company for the Preferred Securities to be delivered by the Trust hereunder at Closing Time. The commission, when so determined, shall be set forth in their discretion shall make to eliminate any sales or purchases of fractional Underwritten Securitiesthe Pricing Agreement.
(cb) Payment of the purchase price for, and delivery of certificates for, the Initial Underwritten Preferred Securities to be purchased by the Underwriters shall be made at the offices office of Xxxxxxxx Chance US Reid & Xriest LLP, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as shall be agreed upon by the Representatives Representative and the Company or the Operating Partnership, as the case may beTrust, at 10:00 A.M. New York time on the fourth business day (or the third business day if required under Rule 15c6-1 of the 1934 Act, or (unless postponed in accordance with the provisions of Section 10) following the date after execution of the applicable Terms Agreement Pricing Agreement, or at such other time not later than ten business days after such date as shall be agreed upon by the Representatives Representative, the Trust and the Company (such time and date of payment and delivery being herein called the “"Closing Time”"). In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates for, such Option Securities shall be made at the above-mentioned offices of Xxxxxxxx Chance US LLP, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, on each Date of Delivery as specified in the notice from the Representatives to the Company. Payment for the Underwritten Securities shall be made to the Company Trust in Federal or the Operating Partnership, as the case may be, by wire transfer of other immediately available funds payable to a bank an account designated by the Company or the Operating Partnership, as the case may beTrust, against delivery to the Representatives Representative for the respective accounts of the Underwriters of certificates for the Underwritten Preferred Securities to be purchased by them. Certificates for the Underwritten Preferred Securities and the Option Securities, if any, shall be in such denominations and registered in such names as the Representatives Representative may request in writing at least two business days before the Closing Time or the relevant Date of Delivery, as the case may beTime. It is understood that each Underwriter has authorized the RepresentativesRepresentative, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Underwritten Preferred Securities and the Option Securities, if any, which it has agreed to purchase. The RepresentativesMerrxxx Xxxcx, individually xxdividually and not as representatives Representative of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Underwritten Preferred Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have payment has not been received by the Closing Time or the relevant Date of Delivery, as the case may beTime, but any such payment shall by Merrxxx Xxxcx xxxll not relieve such Underwriter from its obligations hereunder. The certificates certificate(s) for the Initial Preferred Securities and the Option Securities, if any, will be made available for examination and packaging by the Representatives Representative not later than 10:00 A.M. on the last business day prior to the Closing Time or the relevant Date of Delivery, as the case may be, in New York, New York. If authorized by the applicable Terms Agreement, the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company or the Operating Partnership, as the case may be, pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially in the form of Exhibit B hereto with such changes therein as the Company or the Operating Partnership, as the case may be, may approve. As compensation for arranging Delayed Delivery Contracts, the Company or the Operating Partnership, as the case may be, will pay to the Representatives at Closing Time, for the respective accounts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors of the types described in the Prospectus. At the applicable Closing Time, the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery Contracts.
Appears in 2 contracts
Samples: Underwriting Agreement (Consumers Energy Co Financing Ii), Underwriting Agreement (Consumers Energy Co Financing Iv)
Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on the basis of the representations and warranties herein contained and shall be subject to the terms and conditions set forth herein or in the applicable Terms Agreement.
(b) In addition, on the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company or the Operating Partnership, as the case may be, may grant, if so provided in the applicable Terms Agreement relating to the Initial Underwritten Securities, an option to the Underwriters named in such Terms Agreement, severally and not jointly, to purchase up to the number of Option Securities set forth therein at the same price per Option Security as is applicable to the Initial Underwritten Securities, less an amount equal to any dividends or distributions declared by the Company and paid or payable on the Initial Underwritten Securities but not payable on the Option Securities. Such option, if granted, will expire 30 days (or such lesser number of days as may be specified in the applicable Terms Agreement) after the Representation Date relating to the Initial Underwritten Securities, and may be exercised in whole or in part from time to time only for the purpose of covering over-allotments which may be made in connection with the offering and distribution of the Initial Underwritten Securities upon notice by the Representatives to the Company or the Operating Partnership, as the case may be, setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time, time and date and place of payment and delivery for such Option Securities. Any such time, date and place of delivery (a “"Date of Delivery”") shall be determined by the Representatives, but shall not be later than seven full business days nor earlier than two full business days after the exercise of said option, nor in any event prior to the Closing Time, unless otherwise agreed upon by the Representatives and the Company or the Operating Partnership, as the case may beCompany. If the option is exercised as to all or any portion of the Option Securities, each of the Underwriters, acting severally and not jointly, will purchase that proportion of the total number of Option Securities then being purchased which the number of Initial Underwritten Securities each such Underwriter has severally agreed to purchase as set forth in the applicable Terms Agreement bears to the total number of Initial Underwritten Securities (except as otherwise provided in the applicable Terms Agreement), subject to such adjustments as the Representatives in their discretion shall make to eliminate any sales or purchases of fractional Underwritten Securities.
(c) Payment of the purchase price for, and delivery of certificates for, the Initial Underwritten Securities to be purchased by the Underwriters shall be made at the offices of Xxxxxxxx Chance US LLPXxxxxx & Xxxxx, 00 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, at 10:00 A.M. 9:30 a.m. on the fourth business day (or the third business day if required under Rule 15c6-1 of the 1934 Act, or unless postponed in accordance with the provisions of Section 10) following the date of the applicable Terms Agreement or at such other time as shall be agreed upon by the Representatives and the Company (such time and date of payment and delivery being each referred to herein called the “as a "Closing Time”"). In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates for, such Option Securities shall be made at the above-mentioned offices of Xxxxxxxx Chance US LLPXxxxxx & Xxxxx, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, on each Date of Delivery as specified in the notice from the Representatives to the Company. Payment for Unless otherwise specified in the Underwritten Securities applicable Terms Agreement, payment shall be made to the Company or the Operating Partnership, as the case may be, by wire transfer of immediately available Federal or similar same day funds payable to a bank account designated by the order of the Company or the Operating Partnership, as the case may be, against delivery to the Representatives for the respective accounts of the Underwriters of certificates for the Underwritten Securities to be purchased by them. Certificates for the Underwritten Securities and the Option Securities, if any, or Depositary Receipts evidencing the Depositary Shares, as applicable, shall be in such denominations and registered in such names as the Representatives may request in writing at least two business days before the Closing Time or the relevant Date of Delivery, as the case may be. It is understood that each Underwriter has authorized the Representatives, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Underwritten Securities and the Option Securities, if any, which it has agreed to purchase. The Representatives, individually and not as representatives of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Underwritten Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have not been received by the Closing Time or the relevant Date of Delivery, as the case may be, but any such payment shall not relieve such Underwriter from its obligations hereunder. The certificates for the Initial Underwritten Securities and the Option Securities, if any, or Depositary Receipts evidencing the Depositary Shares, as applicable, will be made available for examination and packaging by the Representatives not later than 10:00 A.M. a.m. on the last business day prior to the Closing Time or the relevant Date of Delivery, as the case may be, in New York, New York. If authorized by the applicable Terms Agreement, the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company or the Operating Partnership, as the case may be, pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially in the form of Exhibit B hereto with such changes therein as the Company or the Operating Partnership, as the case may be, may approve. As compensation for arranging Delayed Delivery Contracts, the Company or the Operating Partnership, as the case may be, will pay to the Representatives at Closing Time, for the respective accounts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors of the types described in the Prospectus. At the applicable Closing Time, the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery Contracts.
Appears in 2 contracts
Samples: Terms Agreement (Carramerica Realty Corp), Terms Agreement (Carramerica Realty Corp)
Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on the basis of the representations and warranties herein contained and shall be subject to the terms and conditions set forth herein or in the applicable Terms Agreement.
(b) In addition, on the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company or the Operating Partnership, as the case may be, Partnership may grant, if so provided in the applicable Terms Agreement relating to the Initial Underwritten Securities, an option to the Underwriters named in such Terms Agreement, severally and not jointly, to purchase up to the number aggregate principal amount, as the case may be, of the Option Underwritten Securities set forth therein at the same a price per Option Underwritten Security as is applicable equal to the price per Initial Underwritten SecuritiesSecurity, less an amount equal to any dividends or distributions declared by the Company Operating Partnership and paid or payable on the Initial Underwritten Securities but not payable on the Option Underwritten Securities. Such option, if granted, will expire 30 days (or such lesser number of days as may be specified in the applicable Terms Agreement) Agreement after the Representation Date relating to the Initial Underwritten Securities, and may be exercised in whole or in part from time to time only for the purpose of covering over-allotments which may be made in connection with the offering and distribution of the Initial Underwritten Securities upon notice by the Representatives you to the Company or the Operating Partnership, as the case may be, setting forth the number aggregate principal amount of Option Underwritten Securities as to which the several Underwriters are then exercising the option and the time, date and place of payment and delivery for such Option Underwritten Securities. Any such time, time and date of payment and place of delivery (each, a “"Date of Delivery”") shall be determined by the Representativesyou, but shall not be later than seven full business days nor and not be earlier than two full business days after the exercise of said option, nor in any event prior to the Closing Time, unless otherwise agreed upon by the Representatives you and the Company or the Operating Partnership, as the case may be. If the option is exercised as to all or any portion of the Option Underwritten Securities, each of the Underwriters, acting severally and not jointly, will purchase that proportion of the total number aggregate principal amount of Option Underwritten Securities then being purchased which the number aggregate principal amount of Initial Underwritten Securities each such Underwriter has severally agreed to purchase as set forth in the applicable such Terms Agreement bears to the total number aggregate principal amount of Initial Underwritten Securities (except as otherwise provided in the applicable Terms Agreement)Securities, subject to such adjustments as the Representatives you in their your discretion shall make to eliminate any sales or purchases of fractional Option Underwritten Securities.
(c) Payment of the purchase price for, and delivery of certificates forof, the Initial Underwritten Securities to be purchased by the Underwriters shall be made at the offices of Xxxxxxxx Chance US LLPHogax & Xartxxx X.X.P., 00 Xxxx 00xx 555 Xxxxxxxxxx Xxxxxx, Xxx XxxxX.X., Xxx Xxxx Xxxxxxxxxx, X.X. 00000, or xx at such other place as shall be agreed upon by the Representatives you and the Company or the Operating Partnership, as the case may be, at 10:00 A.M. a.m. (Eastern time) on the fourth third (fourth, if the pricing occurs after 4:30 p.m. (Eastern Time) on any given day) business day (or the third business day if required under Rule 15c6-1 of the 1934 Act, or unless postponed in accordance with the provisions of Section 10) following the date of the applicable Terms Agreement Agreement, or at such other time as shall be agreed upon by the Representatives you and the Company Operating Partnership (each such time and date of payment and delivery being herein called the “a "Closing Time”"). In addition, in the event that the Underwriters have exercised their option, if any, to purchase any or all of the Option Securities are purchased by the UnderwritersUnderwritten Securities, payment of the purchase price for, and delivery of certificates for, such Option Securities Underwritten Securities, shall be made at the above-mentioned offices of Xxxxxxxx Chance US LLPHogax & Xartxxx X.X.P., or at such other place as shall be agreed upon by the Representatives you and the Company or the Operating Partnership, as on the case may be, on each relevant Date of Delivery as specified in the notice from the Representatives you to the CompanyOperating Partnership. Payment for the Underwritten Securities shall be made to the Company Operating Partnership, by wire transfer or by certified or official bank check or checks drawn in Federal or similar same-day funds payable to the order of the Operating Partnership, as the case may be, by wire transfer of immediately available funds to a bank account designated by the Company or the Operating Partnership, as the case may beapplicable, against delivery to the Representatives you for the respective accounts of the Underwriters of the Underwritten Securities to be purchased by them. Certificates for the Underwritten Securities and the Option Securities, if any, shall be in such denominations and registered in such names as the Representatives may request in writing at least two business days before the Closing Time or the relevant Date of Delivery, as the case may be. It is understood that each Underwriter has authorized the Representativesyou, for its account, to accept delivery of, receipt for, and make payment of the purchase price forprice, for the Underwritten Securities and the Option Securities, if any, which it has severally agreed to purchase. The RepresentativesYou, individually and not as representatives representative of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Underwritten Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have check has not been received by the Closing Time or the relevant Date of Delivery, as the case may be, but any such payment shall not relieve such Underwriter from its obligations hereunder.
(d) The Underwritten Securities shall be in such authorized denominations and registered in such names as you may request in writing at least two full business days prior to the applicable Closing Time or the relevant Date of Delivery, as the case may be. The certificates for the Initial Underwritten Securities and the Option Securities, if any, will be made available for examination and packaging by you on or before the Representatives not later than 10:00 A.M. on the last first business day prior to the Closing Time or the relevant Date of Delivery, as the case may be, in New York, New York. If authorized by the applicable Terms Agreement, the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company or the Operating Partnership, as the case may be, pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially in the form of Exhibit B hereto with such changes therein as the Company or the Operating Partnership, as the case may be, may approve. As compensation for arranging Delayed Delivery Contracts, the Company or the Operating Partnership, as the case may be, will pay to the Representatives at Closing Time, for the respective accounts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors of the types described in the Prospectus. At the applicable Closing Time, the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery Contracts.
Appears in 2 contracts
Samples: Debt Securities Purchase Agreement (Post Apartment Homes Lp), Debt Securities Purchase Agreement (Post Apartment Homes Lp)
Sale and Delivery to Underwriters Closing. (a) a. The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Pricing Agreement shall be deemed to have been made on the basis of the representations and warranties herein contained and shall be subject to the terms and conditions set forth herein or in the applicable Terms Pricing Agreement.
(b) b. In addition, on the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company or Trust and/or the Operating PartnershipCorporation, as the case may beapplicable, may grant, if so provided in the applicable Terms Pricing Agreement relating to the Initial Underwritten Securities, an option to the Underwriters named in such Terms Pricing Agreement, severally and not jointly, to purchase up to the number of Option Securities set forth therein at the same price per Option Security as is applicable to the Initial Underwritten Securities, less an amount equal to any dividends or distributions declared by the Company and paid or payable on the Initial Underwritten Securities but not payable on the Option Securities. Such option, if granted, will expire 30 days (or such lesser number of days as may be specified in the applicable Terms Pricing Agreement) after the Representation Date relating to the Initial Underwritten Securities, and may be exercised in whole or in part from time to time only for the purpose of covering over-allotments which may be made in connection with the offering and distribution of the Initial Underwritten Securities upon notice by the Representatives to the Company or Trust and/or the Operating PartnershipCorporation, as the case may beapplicable, setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time, time and date and place of payment and delivery for such Option Securities. Any such time, date and place of delivery (a “"Date of Delivery”") shall be determined by the Representatives, but shall not be later than seven full business days nor earlier than two full business days after the exercise of said option, nor in any event prior to the Closing Time, unless otherwise agreed upon by the Representatives and the Company or Trust and/or the Operating PartnershipCorporation, as the case may beapplicable. If the option is exercised as to all or any portion of the Option Securities, each of the Underwriters, acting severally and not jointly, will purchase that proportion of the total number of Option Securities then being purchased which the number of Initial Underwritten Securities each such Underwriter has severally agreed to purchase as set forth in the applicable Terms Pricing Agreement bears to the total number of Initial Underwritten Securities (except as otherwise provided in the applicable Terms Pricing Agreement), subject to such adjustments as the Representatives in their discretion shall make to eliminate any sales or purchases of fractional Underwritten Securities.
(c) c. Payment of the purchase price for, and delivery of certificates for, the Initial Underwritten Securities to be purchased by the Underwriters shall be made at the offices of Xxxxxxxx Chance US LLPRogexx & Xellx, 00 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or xx at such other place as shall be agreed upon by the Representatives and the Company or Trust and/or the Operating PartnershipCorporation, as the case may beapplicable, at 10:00 A.M. on the fourth business day (or the third business day if required under Rule 15c6-1 of the 1934 Act, or unless postponed in accordance with the provisions of Section 10) following the date of the applicable Terms Pricing Agreement or at such other time as shall be agreed upon by the Representatives and the Company Trust and the Corporation (such time and date of payment and delivery being each referred to herein called as the “"Closing Time”"). In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates for, such Option Securities shall be made at the above-mentioned offices of Xxxxxxxx Chance US LLPRogexx & Xellx, or xx at such other place as shall be agreed upon by the Representatives and the Company or Trust and/or the Operating PartnershipCorporation, as the case may beapplicable, on each Date of Delivery as specified in the notice from the Representatives to the CompanyTrust and/or the Corporation, as applicable. Payment for the Underwritten Securities shall be made to the Company or Trust and/or the Operating PartnershipCorporation, as the case may beapplicable, by wire transfer certified or official bank check or checks drawn in New York Clearing House funds or similar next day funds payable to the 12 order of immediately available funds to a bank account designated by the Company or Trust and the Operating Partnership, as the case may beCorporation, against delivery to the Representatives for the respective accounts of the Underwriters of certificates for the Underwritten Securities to be purchased by them. Certificates for the Underwritten Securities and the Option Securities, if any, shall be in such denominations and registered in such names as the Representatives may request in writing at least two business days before the Closing Time or the relevant Date of Delivery, as the case may be. It is understood that each Underwriter has authorized the Representatives, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Underwritten Securities and the Option Securities, if any, which it has agreed to purchase. The Representatives, individually and not as representatives of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Underwritten Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have check has not been received by the Closing Time or the relevant Date of Delivery, as the case may be, but any such payment shall not relieve such Underwriter from its obligations hereunder. The certificates for the Initial Underwritten Securities and the Option Securities, if any, will be made available for examination and packaging by the Representatives not later than 10:00 A.M. on the last business day prior to the Closing Time or the relevant Date of Delivery, as the case may be, in New York, New York. If authorized by the applicable Terms Agreement, the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company or the Operating Partnership, as the case may be, pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially in the form of Exhibit B hereto with such changes therein as the Company or the Operating Partnership, as the case may be, may approve. As compensation for arranging Delayed Delivery Contracts, the Company or the Operating Partnership, as the case may be, will pay to the Representatives at Closing Time, for the respective accounts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors of the types described in the Prospectus. At the applicable Closing Time, the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery Contracts.
Appears in 2 contracts
Samples: Underwriting Agreement (Starwood Lodging Corp), Underwriting Agreement (Starwood Lodging Corp)
Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on the basis of the representations and warranties herein contained and shall be subject to the terms and conditions set forth herein or in the applicable Terms Agreement.
(b) In addition, on the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company or the Operating Partnership, as the case may be, may grant, if so provided in the applicable Terms Agreement relating to the Initial Underwritten Securities, an option to the Underwriters named in such Terms Agreement, severally and not jointly, to purchase up to the number of Option Securities set forth therein at the same price per Option Security as is applicable to the Initial Underwritten Securities, less an amount equal to any dividends or distributions declared by the Company and paid or payable on the Initial Underwritten Securities but not payable on the Option Securities. Such option, if granted, will expire 30 days (or such lesser number of days as may be specified in the applicable Terms Agreement) after the Representation Date relating to the Initial Underwritten Securities, and may be exercised in whole or in part from time to time only for the purpose of covering over-allotments which may be made in connection with the offering and distribution of the Initial Underwritten Securities upon notice by the Representatives to the Company or the Operating Partnership, as the case may be, setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time, date and place of payment and delivery for such Option Securities. Any such time, date and place of delivery (a “Date of Delivery”) shall be determined by the Representatives, but shall not be later than seven full business days nor earlier than two full business days after the exercise of said option, nor in any event prior to the Closing Time, unless otherwise agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be. If the option is exercised as to all or any portion of the Option Securities, each of the Underwriters, acting severally and not jointly, will purchase that proportion of the total number of Option Securities then being purchased which the number of Initial Underwritten Securities each such Underwriter has severally agreed to purchase as set forth in the applicable Terms Agreement bears to the total number of Initial Underwritten Securities (except as otherwise provided in the applicable Terms Agreement), subject to such adjustments as the Representatives in their discretion shall make to eliminate any sales or purchases of fractional Underwritten Securities.
(c) Payment of the purchase price for, and delivery of certificates for, the Initial Underwritten Securities to be purchased by the Underwriters shall be made at the offices of Xxxxxxxx Chance US LLP, 00 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, at 10:00 A.M. on the fourth business day (or the third business day if required under Rule 15c6-1 of the 1934 Act, or unless postponed in accordance with the provisions of Section 10) following the date of the applicable Terms Agreement or at such other time as shall be agreed upon by the Representatives and the Company (such time and date of payment and delivery being herein called the “Closing Time”). In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates for, such Option Securities shall be made at the above-mentioned offices of Xxxxxxxx Chance US LLP, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, on each Date of Delivery as specified in the notice from the Representatives to the Company. Payment for the Underwritten Securities shall be made to the Company or the Operating Partnership, as the case may be, by wire transfer of immediately available funds to a bank account designated by the Company or the Operating Partnership, as the case may be, against delivery to the Representatives for the respective accounts of the Underwriters of the Underwritten Securities to be purchased by them. Certificates for the Underwritten Securities and the Option Securities, if any, shall be in such denominations and registered in such names as the Representatives may request in writing at least two business days before the Closing Time or the relevant Date of Delivery, as the case may be. It is understood that each Underwriter has authorized the Representatives, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Underwritten Securities and the Option Securities, if any, which it has agreed to purchase. The Representatives, individually and not as representatives of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Underwritten Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have not been received by the Closing Time or the relevant Date of Delivery, as the case may be, but any such payment shall not relieve such Underwriter from its obligations hereunder. The certificates for the Initial Securities and the Option Securities, if any, will be made available for examination and packaging by the Representatives not later than 10:00 A.M. on the last business day prior to the Closing Time or the relevant Date of Delivery, as the case may be, in New York, New York. If authorized by the applicable Terms Agreement, the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company or the Operating Partnership, as the case may be, pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially in the form of Exhibit B hereto with such changes therein as the Company or the Operating Partnership, as the case may be, may approve. As compensation for arranging Delayed Delivery Contracts, the Company or the Operating Partnership, as the case may be, will pay to the Representatives at Closing Time, for the respective accounts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors of the types described in the Prospectus. At the applicable Closing Time, the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery Contracts.
Appears in 2 contracts
Samples: Terms Agreement (Duke Realty Limited Partnership/), Terms Agreement (Duke Realty Corp)
Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on the basis of the representations and warranties herein contained and shall be subject to the terms and conditions set forth herein or in the applicable Terms Agreement.
(b) In addition, on On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company or the Operating Partnership, as the case may be, may grant, if so provided in the applicable Terms Agreement relating Seller agrees to the Initial Underwritten Securities, an option sell to the Underwriters named in such Terms Agreementeach Underwriter and each Underwriter agrees, severally and not jointly, to purchase up to from the number of Option Securities Seller, the Underwritten Notes set forth therein opposite its name in the Pricing Agreement at the same price per Option Security as is applicable respective prices to the Initial Underwritten Securities, less an amount equal to any dividends or distributions declared by the Company and paid or payable on the Initial Underwritten Securities but not payable on the Option Securities. Such option, if granted, will expire 30 days (or such lesser number of days as may be specified in the applicable Terms Agreement) after the Representation Date relating to the Initial Underwritten Securities, and may be exercised in whole or in part from time to time upon notice by the Representatives to the Company or the Operating Partnership, as the case may be, setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time, date and place of payment and delivery for such Option Securities. Any such time, date and place of delivery (a “Date of Delivery”) shall be determined by agreement between the RepresentativesSeller and you, but which prices shall be set forth in the Pricing Agreement. In the event that such prices have not be later than seven full been agreed upon and the Pricing Agreement has not been executed and delivered by all parties thereto by the close of business days nor earlier than two full on the fourth business days after day following the exercise date of said optionthis Agreement, nor in this Agreement shall terminate forthwith, without liability of any event prior party to the Closing Timeany other party, unless otherwise agreed upon to by the Representatives Seller and the Company or the Operating Partnership, as the case may be. If the option is exercised as to all or any portion of the Option Securities, each of the Underwriters, acting severally and not jointly, will purchase that proportion of the total number of Option Securities then being purchased which the number of Initial Underwritten Securities each such Underwriter has severally agreed to purchase as set forth in the applicable Terms Agreement bears to the total number of Initial Underwritten Securities (except as otherwise provided in the applicable Terms Agreement), subject to such adjustments as the Representatives in their discretion shall make to eliminate any sales or purchases of fractional Underwritten Securitiesyou.
(cb) Payment of the purchase price for, and delivery of certificates forof, the Initial Underwritten Securities to be purchased by the Underwriters Notes shall be made at the offices office of Xxxxxxxx Chance US & Xxxxx LLP, 00 Xxxx 00xx Xxxxxx000 Xxxxx XxXxxxx, Xxx XxxxXxxxxxx, Xxx Xxxx XX 00000, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, Seller at 10:00 A.M. on the fourth business day ([ ], 20[ ] or the third business day if required under Rule 15c6-1 of the 1934 Act, or unless postponed in accordance with the provisions of Section 10) following the date of the applicable Terms Agreement or at such other time as shall be agreed upon by the Representatives and the Company Seller (such time and date of payment and delivery being herein called the “Closing Time” and such date of delivery being called the “Closing Date”). In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates for, such Option Securities Payment shall be made at the above-mentioned offices of Xxxxxxxx Chance US LLP, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, on each Date of Delivery as specified in the notice from the Representatives to the Company. Payment for the Underwritten Securities shall be made to the Company or the Operating Partnership, as the case may be, by wire transfer of immediately available Seller in same day funds to a bank account designated by the Company or the Operating Partnership, as the case may be, against delivery to the Representatives for the respective accounts of the Underwriters of the Underwritten Securities to be purchased by themNotes to, or at the direction of, the Representatives. Certificates for the The Underwritten Securities and the Option Securities, if any, Notes shall be in such denominations and registered in such names as the Representatives may request in writing at least two business days before the Closing Time or the relevant Date of Delivery, as the case may beTime. It is understood that each Underwriter has authorized the Representatives, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the The Underwritten Securities and the Option Securities, if anyNotes, which it has agreed to purchase. The Representatives, individually and not as representatives of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Underwritten Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have not been received by the Closing Time or the relevant Date of Delivery, as the case may be, but any such payment shall not relieve such Underwriter from its obligations hereunder. The certificates for the Initial Securities and the Option Securities, if anyin temporary form, will be made available for examination and packaging by the Representatives not later than 10:00 A.M. on the last business day prior to Closing Time. The Underwritten Notes will be represented initially by Underwritten Notes registered in the Closing Time or the relevant Date name of Delivery, as the case may be, in New York, New York. If authorized by the applicable Terms AgreementCede & Co., the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company or the Operating Partnership, as the case may be, pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially in the form nominee of Exhibit B hereto with such changes therein as the Company or the Operating Partnership, as the case may be, may approve. As compensation for arranging Delayed Delivery Contracts, the Company or the Operating Partnership, as the case may be, will pay to the Representatives at Closing Time, for the respective accounts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors of the types described in the Prospectus. At the applicable Closing Time, the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery ContractsDepository Trust Company.
Appears in 2 contracts
Samples: Underwriting Agreement (John Deere Receivables, Inc.), Underwriting Agreement (John Deere Receivables LLC)
Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on the basis of the representations and warranties herein contained and shall be subject to the terms and conditions set forth herein or in the applicable Terms Agreement.
(b) In addition, on On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company or the Operating Partnership, as the case may be, may grant, if so provided in the applicable Terms Agreement relating Seller agrees to the Initial Underwritten Securities, an option sell to the Underwriters named in such Terms Agreementeach Underwriter and each Underwriter agrees, severally and not jointly, to purchase up to from the number of Option Securities Seller, the Underwritten Notes set forth therein opposite its name in the Pricing Agreement at the same price per Option Security as is applicable respective prices to the Initial Underwritten Securities, less an amount equal to any dividends or distributions declared by the Company and paid or payable on the Initial Underwritten Securities but not payable on the Option Securities. Such option, if granted, will expire 30 days (or such lesser number of days as may be specified in the applicable Terms Agreement) after the Representation Date relating to the Initial Underwritten Securities, and may be exercised in whole or in part from time to time upon notice by the Representatives to the Company or the Operating Partnership, as the case may be, setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time, date and place of payment and delivery for such Option Securities. Any such time, date and place of delivery (a “Date of Delivery”) shall be determined by agreement between the RepresentativesSeller and you, but which prices shall be set forth in the Pricing Agreement. In the event that such prices have not be later than seven full been agreed upon and the Pricing Agreement has not been executed and delivered by all parties thereto by the close of business days nor earlier than two full on the fourth business days after day following the exercise date of said optionthis Agreement, nor in this Agreement shall terminate forthwith, without liability of any event prior party to the Closing Timeany other party, unless otherwise agreed upon to by the Representatives Seller and the Company or the Operating Partnership, as the case may be. If the option is exercised as to all or any portion of the Option Securities, each of the Underwriters, acting severally and not jointly, will purchase that proportion of the total number of Option Securities then being purchased which the number of Initial Underwritten Securities each such Underwriter has severally agreed to purchase as set forth in the applicable Terms Agreement bears to the total number of Initial Underwritten Securities (except as otherwise provided in the applicable Terms Agreement), subject to such adjustments as the Representatives in their discretion shall make to eliminate any sales or purchases of fractional Underwritten Securitiesyou.
(cb) Payment of the purchase price for, and delivery of certificates forof, the Initial Underwritten Securities to be purchased by the Underwriters Notes shall be made at the offices office of Xxxxxxxx Chance US Shearman & Sterling LLP, 00 Xxxx 00xx 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, Seller at 10:00 A.M. on the fourth business day (or the third business day if required under Rule 15c6-1 of the 1934 Act, 20XX, or unless postponed in accordance with the provisions of Section 10) following the date of the applicable Terms Agreement or at such other time as shall be agreed upon by the Representatives and the Company Seller (such time and date of payment and delivery being herein called the “Closing Time” and such date of delivery being called the “Closing Date”). In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates for, such Option Securities Payment shall be made at the above-mentioned offices of Xxxxxxxx Chance US LLP, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, on each Date of Delivery as specified in the notice from the Representatives to the Company. Payment for the Underwritten Securities shall be made to the Company or the Operating Partnership, as the case may be, by wire transfer of immediately available Seller in same day funds to a bank account designated by the Company or the Operating Partnership, as the case may be, against delivery to the Representatives for the respective accounts of the Underwriters of the Underwritten Securities to be purchased by themNotes to, or at the direction of, the Representatives. Certificates for the The Underwritten Securities and the Option Securities, if any, Notes shall be in such denominations and registered in such names as the Representatives may request in writing at least two business days before the Closing Time or the relevant Date of Delivery, as the case may beTime. It is understood that each Underwriter has authorized the Representatives, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the The Underwritten Securities and the Option Securities, if anyNotes, which it has agreed to purchase. The Representatives, individually and not as representatives of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Underwritten Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have not been received by the Closing Time or the relevant Date of Delivery, as the case may be, but any such payment shall not relieve such Underwriter from its obligations hereunder. The certificates for the Initial Securities and the Option Securities, if anyin temporary form, will be made available for examination and packaging by the Representatives not later than 10:00 A.M. on the last business day prior to Closing Time. The Underwritten Notes will be represented initially by Underwritten Notes registered in the Closing Time or the relevant Date name of Delivery, as the case may be, in New York, New York. If authorized by the applicable Terms AgreementCede & Co., the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company or the Operating Partnership, as the case may be, pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially in the form nominee of Exhibit B hereto with such changes therein as the Company or the Operating Partnership, as the case may be, may approve. As compensation for arranging Delayed Delivery Contracts, the Company or the Operating Partnership, as the case may be, will pay to the Representatives at Closing Time, for the respective accounts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors of the types described in the Prospectus. At the applicable Closing Time, the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery ContractsDepository Trust Company.
Appears in 2 contracts
Samples: Underwriting Agreement (John Deere Receivables, Inc.), Underwriting Agreement (John Deere Receivables, Inc.)
Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on the basis of the representations and warranties herein contained and shall be subject to the terms and conditions set forth herein or in the applicable Terms Agreement.
(b) In addition, on the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company or the Operating Partnership, as the case may be, may grant, if so provided in the applicable Terms Agreement relating to the Initial Underwritten Securities, an option to the Underwriters named in such Terms Agreement, severally and not jointly, to purchase up to the number of Option Securities set forth therein at the same price per Option Security as is applicable to the Initial Underwritten Securities, less an amount equal to any dividends or distributions declared by the Company and paid or payable on the Initial Underwritten Securities but not payable on the Option Securities. Such option, if granted, will expire 30 days (or such lesser number of days as may be specified in the applicable Terms Agreement) after the Representation Date relating to the Initial Underwritten Securities, and may be exercised in whole or in part from time to time only for the purpose of covering over-allotments which may be made in connection with the offering and distribution of the Initial Underwritten Securities upon notice by the Representatives to the Company or the Operating Partnership, as the case may be, setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time, date and place of payment and delivery for such Option Securities. Any such time, date and place of delivery (a “"Date of Delivery”") shall be determined by the Representatives, but shall not be later than seven full business days nor earlier than two full business days after the exercise of said option, nor in any event prior to the Closing Time, unless otherwise agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be. If the option is exercised as to all or any portion of the Option Securities, each of the Underwriters, acting severally and not jointly, will purchase that proportion of the total number of Option Securities then being purchased which the number of Initial Underwritten Securities each such Underwriter has severally agreed to purchase as set forth in the applicable Terms Agreement bears to the total number of Initial Underwritten Securities (except as otherwise provided in the applicable Terms Agreement), subject to such adjustments as the Representatives in their discretion shall make to eliminate any sales or purchases of fractional Underwritten Securities.
(c) Payment of the purchase price for, and delivery of certificates for, the Initial Underwritten Securities to be purchased by the Underwriters shall be made at the offices of Xxxxxxxx Chance US Xxxxxx & Xxxxx LLP, 00 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, at 10:00 A.M. on the fourth business day (or the third business day if required under Rule 15c6-1 of the 1934 Act, or unless postponed in accordance with the provisions of Section 10) following the date of the applicable Terms Agreement or at such other time as shall be agreed upon by the Representatives and the Company (such time and date of payment and delivery being herein called the “"Closing Time”"). In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates for, such Option Securities shall be made at the above-mentioned offices of Xxxxxxxx Chance US Xxxxxx & Xxxxx LLP, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, on each Date of Delivery as specified in the notice from the Representatives to the Company. Payment for the Underwritten Securities shall be made to the Company or the Operating Partnership, as the case may be, by wire transfer of immediately available funds to a bank account designated by the Company or the Operating Partnership, as the case may be, against delivery to the Representatives for the respective accounts of the Underwriters of the Underwritten Securities to be purchased by them. Certificates for the Underwritten Securities and the Option Securities, if any, shall be in such denominations and registered in such names as the Representatives may request in writing at least two business days before the Closing Time or the relevant Date of Delivery, as the case may be. It is understood that each Underwriter has authorized the Representatives, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Underwritten Securities and the Option Securities, if any, which it has agreed to purchase. The Representatives, individually and not as representatives of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Underwritten Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have not been received by the Closing Time or the relevant Date of Delivery, as the case may be, but any such payment shall not relieve such Underwriter from its obligations hereunder. The certificates for the Initial Securities and the Option Securities, if any, will be made available for examination and packaging by the Representatives not later than 10:00 A.M. on the last business day prior to the Closing Time or the relevant Date of Delivery, as the case may be, in New York, New York. If authorized by the applicable Terms Agreement, the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company or the Operating Partnership, as the case may be, pursuant to delayed delivery contracts (“"Delayed Delivery Contracts”") substantially in the form of Exhibit B hereto with such changes therein as the Company or the Operating Partnership, as the case may be, may approve. As compensation for arranging Delayed Delivery Contracts, the Company or the Operating Partnership, as the case may be, will pay to the Representatives at Closing Time, for the respective accounts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors of the types described in the Prospectus. At the applicable Closing Time, the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery Contracts.
Appears in 2 contracts
Samples: Underwriting Agreement (Duke Weeks Realty Limited Partnership), Underwriting Agreement (Duke Realty Investments Inc)
Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on the basis of the representations and warranties herein contained and shall be subject to the terms and conditions set forth herein or in the applicable Terms Agreement.
(b) In addition, on the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company or the Operating Partnership, as the case may be, may grant, if so provided in the applicable Terms Agreement relating to the Initial Underwritten Securities, an option to the Underwriters named in such Terms Agreement, severally and not jointly, to purchase up to the number of Option Securities set forth therein at the same price per Option Security as is applicable to the Initial Underwritten Securities, less an amount equal to any dividends or distributions declared by the Company and paid or payable on the Initial Underwritten Securities but not payable on the Option Securities. Such option, if granted, will expire 30 days (or such lesser number of days as may be specified in the applicable Terms Agreement) after the Representation Date relating to the Initial Underwritten Securities, and may be exercised in whole or in part from time to time only for the purpose of covering over-allotments which may be made in connection with the offering and distribution of the Initial Underwritten Securities upon notice by the Representatives to the Company or the Operating Partnership, as the case may be, setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time, date and place of payment and delivery for such Option Securities. Any such time, date and place of delivery (a “"Date of Delivery”") shall be determined by the Representatives, but shall not be later than seven full business days nor earlier than two full business days after the exercise of said option, nor in any event prior to the Closing Time, unless otherwise agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be. If the option is exercised as to all or any portion of the Option Securities, each of the Underwriters, acting severally and not jointly, will purchase that proportion of the total number of Option Securities then being purchased which the number of Initial Underwritten Securities each such Underwriter has severally agreed to purchase as set forth in the applicable Terms Agreement bears to the total number of Initial Underwritten Securities (except as otherwise provided in the applicable Terms Agreement), subject to such adjustments as the Representatives in their discretion shall make to eliminate any sales or purchases of fractional Underwritten Securities.
(c) Payment of the purchase price for, and delivery of certificates for, the Initial Underwritten Securities to be purchased by the Underwriters shall be made at the offices of Xxxxxxxx Chance US LLPXxxxxx & Xxxxx, 00 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, at 10:00 A.M. on the fourth business day (or the third business day if required under Rule 15c6-1 of the 1934 Act, or unless postponed in accordance with the provisions of Section 10) following the date of the applicable Terms Agreement or at such other time as shall be agreed upon by the Representatives and the Company (such time and date of payment and delivery being herein called the “"Closing Time”"). In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates for, such Option Securities shall be made at the above-mentioned offices of Xxxxxxxx Chance US LLPXxxxxx & Xxxxx, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, on each Date of Delivery as specified in the notice from the Representatives to the Company. Payment for the Underwritten Securities shall be made to the Company or the Operating Partnership, as the case may be, by wire transfer of immediately available funds to a bank account designated by the Company or the Operating Partnership, as the case may be, against delivery to the Representatives for the respective accounts of the Underwriters of the Underwritten Securities to be purchased by them. Certificates for the Underwritten Securities and the Option Securities, if any, shall be in such denominations and registered in such names as the Representatives may request in writing at least two business days before the Closing Time or the relevant Date of Delivery, as the case may be. It is understood that each Underwriter has authorized the Representatives, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Underwritten Securities and the Option Securities, if any, which it has agreed to purchase. The Representatives, individually and not as representatives of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Underwritten Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have not been received by the Closing Time or the relevant Date of Delivery, as the case may be, but any such payment shall not relieve such Underwriter from its obligations hereunder. The certificates for the Initial Underwritten Securities and the Option Securities, if any, will be made available for examination and packaging by the Representatives not later than 10:00 A.M. on the last business day prior to the Closing Time or the relevant Date of Delivery, as the case may be, in New York, New York. If authorized by the applicable Terms Agreement, the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company or the Operating Partnership, as the case may be, pursuant to delayed delivery contracts (“"Delayed Delivery Contracts”") substantially in the form of Exhibit B hereto with such changes therein as the Company or the Operating Partnership, as the case may be, may approve. As compensation for arranging Delayed Delivery Contracts, the Company or the Operating Partnership, as the case may be, will pay to the Representatives at Closing Time, for the respective accounts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors of the types described in the Prospectus. At the applicable Closing Time, the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery Contracts.
Appears in 2 contracts
Samples: Underwriting Agreement (Duke Realty Investments Inc), Underwriting Agreement (Duke Realty Investments Inc)
Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on the basis of the representations and warranties herein contained and shall be subject to the terms and conditions set forth herein or in the applicable Terms Agreement.
(b) In addition, on On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company or the Operating Partnership, as the case may be, may grant, if so provided in the applicable Terms Agreement relating agrees to the Initial Underwritten Securities, an option sell to the Underwriters named in such Terms Agreementeach Underwriter, severally and not jointly, to purchase up to the number of Option Securities set forth therein at the same price per Option Security as is applicable to the Initial Underwritten Securitiesand each Underwriter, less an amount equal to any dividends or distributions declared by the Company and paid or payable on the Initial Underwritten Securities but not payable on the Option Securities. Such option, if granted, will expire 30 days (or such lesser number of days as may be specified in the applicable Terms Agreement) after the Representation Date relating to the Initial Underwritten Securities, and may be exercised in whole or in part from time to time upon notice by the Representatives to the Company or the Operating Partnership, as the case may be, setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time, date and place of payment and delivery for such Option Securities. Any such time, date and place of delivery (a “Date of Delivery”) shall be determined by the Representatives, but shall not be later than seven full business days nor earlier than two full business days after the exercise of said option, nor in any event prior to the Closing Time, unless otherwise agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be. If the option is exercised as to all or any portion of the Option Securities, each of the Underwriters, acting severally and not jointly, will purchase that proportion of the total number of Option Securities then being purchased which the number of Initial Underwritten Securities each such Underwriter has severally agreed agrees to purchase as from the Company, at the price set forth in Schedule B, the applicable Terms Agreement bears aggregate amount of Securities set forth in Schedule A opposite the name of such Underwriter, plus any additional principal amount of Securities which such Underwriter may become obligated to purchase pursuant to the total number provisions of Initial Underwritten Securities (except as otherwise provided in the applicable Terms Agreement), subject to such adjustments as the Representatives in their discretion shall make to eliminate any sales or purchases of fractional Underwritten SecuritiesSection 11 hereof.
(cb) Payment of the purchase price for, and delivery of the certificates for, the Initial Underwritten Securities to be purchased by the Underwriters shall be made at the offices of Xxxxxxxx Chance US O’Melveny & Xxxxx LLP, 00 000 Xxxxx Xxxx 00xx Xxxxxx, Xxx XxxxXxxxxxx, Xxx Xxxx 00000, Xxxxxxxxxx 00000 or at such other place as shall be agreed upon by the Representatives Lead Underwriters and the Company or the Operating Partnership, as the case may beCompany, at 10:00 A.M. 7:00 a.m., Los Angeles time, on the fourth business day December 9, 2003 (or the third business day if required under Rule 15c6-1 of the 1934 Act, or unless postponed in accordance with the provisions of Section 10) following the date of the applicable Terms Agreement 11 hereof), or at such other time not later than ten business days after such date as shall be agreed upon by the Representatives Lead Underwriters and the Company (such time and date of payment and delivery being herein called the “Closing Time”). In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates for, such Option Securities shall be made at the above-mentioned offices of Xxxxxxxx Chance US LLP, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, on each Date of Delivery as specified in the notice from the Representatives to the Company. Payment for the Underwritten Securities shall be made to the Company or the Operating Partnership, as the case may be, by wire transfer of immediately available funds to a bank account designated by the Company or the Operating Partnership, as the case may beCompany, against delivery to the Representatives Lead Underwriters for the respective accounts of the Underwriters of certificates for the Underwritten Securities to be purchased by them. Certificates for the Underwritten Securities and the Option Securities, if any, shall be in such denominations (minimum denominations of $5,000 and integral multiples of $1,000 in excess thereof) and registered in such names as the Representatives Underwriters may request in writing at least two business days before the Closing Time or the relevant Date of Delivery, as the case may beTime. It is understood that each Underwriter has authorized the RepresentativesLead Underwriters, for its accounttheir respective accounts, to accept delivery of, receipt for, and make payment of the purchase price for, the Underwritten Securities and the Option Securities, if any, which it has agreed to purchase. The RepresentativesEach of the Lead Underwriters, individually and not as representatives representative of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Underwritten Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have not been received by the Closing Time or the relevant Date of Delivery, as the case may beTime, but any such payment shall not relieve such Underwriter from its obligations hereunder. The certificates for the Initial Securities and the Option Securities, if any, will be made available for examination and packaging by the Representatives Lead Underwriters not later than 10:00 A.M. a.m. on the last business day prior to the Closing Time or the relevant Date of Delivery, as the case may be, in New York, New York. If authorized by the applicable Terms Agreement, the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company or the Operating Partnership, as the case may be, pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially in the form of Exhibit B hereto with such changes therein as the Company or the Operating Partnership, as the case may be, may approve. As compensation for arranging Delayed Delivery Contracts, the Company or the Operating Partnership, as the case may be, will pay to the Representatives at Closing Time, for the respective accounts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors offices of the types described in the Prospectus. At the applicable Closing Time, the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery ContractsJPMorgan Chase Bank.
Appears in 1 contract
Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on the basis of the representations and warranties herein contained and shall be subject to the terms and conditions set forth herein or in the applicable Terms Agreement.
(b) In addition, on the basis of the representations and warranties herein contained and subject Subject to the terms and conditions herein set forth, the Company or agrees to sell to each of the Operating PartnershipUnderwriters, as the case may be, may grant, if so provided in the applicable Terms Agreement relating to the Initial Underwritten Securities, an option to and each of the Underwriters named in such Terms Agreementagrees, severally and not jointly, to purchase up to from the number Company, the aggregate principal amount of Option Securities set forth therein opposite each Underwriter’s name on Schedule A hereto, at a purchase price equal to 98.75% of the same price per Option Security as aggregate principal amount thereof (the “Purchase Price”).
(b) It is applicable understood that the Underwriters propose to offer the Securities for sale to the Initial Underwritten Securities, less an amount equal to any dividends or distributions declared by public upon the Company terms and paid or payable on the Initial Underwritten Securities but not payable on the Option Securities. Such option, if granted, will expire 30 days (or such lesser number of days as may be specified in the applicable Terms Agreement) after the Representation Date relating to the Initial Underwritten Securities, and may be exercised in whole or in part from time to time upon notice by the Representatives to the Company or the Operating Partnership, as the case may be, setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time, date and place of payment and delivery for such Option Securities. Any such time, date and place of delivery (a “Date of Delivery”) shall be determined by the Representatives, but shall not be later than seven full business days nor earlier than two full business days after the exercise of said option, nor in any event prior to the Closing Time, unless otherwise agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be. If the option is exercised as to all or any portion of the Option Securities, each of the Underwriters, acting severally and not jointly, will purchase that proportion of the total number of Option Securities then being purchased which the number of Initial Underwritten Securities each such Underwriter has severally agreed to purchase as conditions set forth in the applicable Terms Agreement bears to the total number of Initial Underwritten Securities (except as otherwise provided in the applicable Terms Agreement), subject to such adjustments as the Representatives in their discretion shall make to eliminate any sales or purchases of fractional Underwritten SecuritiesProspectus.
(c) Payment of the purchase price for, and delivery of certificates forthe Securities, the Initial Underwritten Securities to be purchased by the Underwriters shall be made at the offices of Xxxxxxxx Chance Xxxxx Lovells US LLP, 00 Xxxx 00xx Xxxxxx000 Xxxxxxxxxx Xxxxxx XX, Xxx XxxxXxxxxxxxxx, Xxx Xxxx X.X. 00000, or at such other place as shall be agreed upon by the Representatives Representative and the Company or the Operating Partnership, as the case may beCompany, at 10:00 A.M. 9:00 a.m. (New York City time) on the fourth business day (or the third business day if required under Rule 15c6-1 of the 1934 ActSeptember 15, 2021, or unless postponed in accordance with the provisions of Section 10) following the date of the applicable Terms Agreement or at such other time and date not later than 10 business days after such date as shall be agreed upon by the Representatives Representative and the Company (such time and date of payment and delivery being herein called the “Closing Time” and the “Closing Date”, respectively). In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates for, such Option Securities shall be made at the above-mentioned offices of Xxxxxxxx Chance US LLP, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, on each Date of Delivery as specified in the notice from the Representatives to the Company. Payment for the Underwritten Securities shall be made to the Company or the Operating Partnership, as the case may be, by wire transfer of immediately available funds to a bank account designated by the Company or the Operating Partnership, as the case may be, against delivery of the Securities (in the form of one or more global notes), through the facilities of The Depository Trust Company (“DTC”), to the Representatives Representative for the respective accounts of the Underwriters of the Underwritten Securities to be purchased by them. Certificates for the Underwritten Securities and the Option Securities, if any, shall be in such denominations and registered in such names as the Representatives may request in writing at least two business days before the Closing Time or the relevant Date of Delivery, as the case may beUnderwriters. It is understood that each Underwriter has authorized the RepresentativesRepresentative, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Underwritten Securities and the Option Securities, if any, which it has agreed to purchase. The RepresentativesRepresentative, individually and not as representatives representative of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Underwritten Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have not been received by the Closing Time or the relevant Date of Delivery, as the case may beTime, but any such payment shall not relieve such Underwriter from its obligations hereunder. The certificates for the Initial Securities and the Option Securities, if any, will be made available for examination and packaging by the Representatives not later than 10:00 A.M. on the last business day prior to the Closing Time or the relevant Date of Delivery, as the case may be, in New York, New York. If authorized by the applicable Terms Agreement, the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company or the Operating Partnership, as the case may be, pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially in the form of Exhibit B hereto with such changes therein as the Company or the Operating Partnership, as the case may be, may approve. As compensation for arranging Delayed Delivery Contracts, the Company or the Operating Partnership, as the case may be, will pay to the Representatives at Closing Time, for the respective accounts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors of the types described in the Prospectus. At the applicable Closing Time, the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery Contracts.
Appears in 1 contract
Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on the basis of the representations and warranties herein contained and shall be subject to the terms and conditions set forth herein or in the applicable Terms Agreement.
(b) In addition, on On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company or the Operating Partnership, as the case may be, may grant, if so provided in the applicable Terms Agreement relating Trust agrees to the Initial Underwritten Securities, an option sell to the Underwriters named in such Terms Agreementeach Underwriter, severally and not jointly, to purchase up to the number of Option Securities set forth therein at the same price per Option Security as is applicable to the Initial Underwritten Securitiesand each Underwriter, less an amount equal to any dividends or distributions declared by the Company and paid or payable on the Initial Underwritten Securities but not payable on the Option Securities. Such option, if granted, will expire 30 days (or such lesser number of days as may be specified in the applicable Terms Agreement) after the Representation Date relating to the Initial Underwritten Securities, and may be exercised in whole or in part from time to time upon notice by the Representatives to the Company or the Operating Partnership, as the case may be, setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time, date and place of payment and delivery for such Option Securities. Any such time, date and place of delivery (a “Date of Delivery”) shall be determined by the Representatives, but shall not be later than seven full business days nor earlier than two full business days after the exercise of said option, nor in any event prior to the Closing Time, unless otherwise agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be. If the option is exercised as to all or any portion of the Option Securities, each of the Underwriters, acting severally and not jointly, will agrees to purchase that proportion of from the total number of Option Securities then being purchased which Trust, at the price per security set forth in Schedule II hereto, the number of Initial Underwritten Preferred Securities each set forth in Schedule I opposite the name of such Underwriter, plus any additional number of Preferred Securities that such Underwriter has severally agreed may become obligated to purchase pursuant to the provisions of Section 10 hereof. The purchase price per security to be paid by the several Underwriters for the Preferred Securities shall be an amount equal to the initial public offering price set forth on Schedule II, which is a fixed price determined by agreement between the Representative and the Offerors. As compensation to the Underwriters for their commitments hereunder and in view of the fact that the proceeds of the sale of the Preferred Securities will be used to purchase the Junior Subordinated Notes of the Company, the Company hereby agrees to pay on the Closing Date (as defined below) to the Representative, for the accounts of the several Underwriters, a commission per Preferred Security as set forth in on Schedule II for the applicable Terms Agreement bears Preferred Securities to be delivered by the total number of Initial Underwritten Securities (except as otherwise provided in Trust hereunder on the applicable Terms Agreement), subject to such adjustments as the Representatives in their discretion shall make to eliminate any sales or purchases of fractional Underwritten SecuritiesClosing Date.
(cb) Payment of the purchase price for, and delivery of certificates for, the Initial Underwritten Preferred Securities to be purchased by the Underwriters shall be made at the offices of Xxxxxxxx Chance US LLP[Xxxxx Xxxxxxxxxx, 00 Xxxx 00xx Xxxxxx1301 Avenue of the Americas, Xxx XxxxNew York, Xxx Xxxx 00000New, York] or at such other place as shall be agreed upon by the Representatives Representative and the Company or the Operating Partnership, as the case may beTrust, at 10:00 A.M. A.M., New York time, on the fourth business day ___________, 1995 (or the third business day if required under Rule 15c6-1 of the 1934 Act, or unless postponed in accordance with the provisions of Section 10) following the date of the applicable Terms Agreement or at such other time time, place or date as shall be agreed upon by the Representatives Representative, the Trust and the Company (such time and date of payment and delivery being herein called the “"Closing Time”Date"). In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates for, such Option Securities shall be made at the above-mentioned offices of Xxxxxxxx Chance US LLP, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, on each Date of Delivery as specified in the notice from the Representatives to the Company. Payment for the Underwritten Securities shall be made to the Company Trust by check or checks in federal funds at the Operating Partnership, as the case may be, by wire transfer of immediately available funds to a bank account designated by the Company or the Operating Partnership, as the case may beClosing Date, against delivery to the Representatives Representative for the respective accounts of the Underwriters of certificates for the Underwritten Preferred Securities to be purchased by them. Certificates for the Underwritten Preferred Securities and the Option Securities, if any, shall be in such denominations and registered in such names as the Representatives Representative may request in writing at least two business days before the Closing Time or the relevant Date of Delivery, as the case may beDate. It is understood that each Underwriter has authorized the RepresentativesRepresentative, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Underwritten Preferred Securities and the Option Securities, if any, which it has agreed to purchase. The RepresentativesRepresentative, individually and not as representatives Representative of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Underwritten Preferred Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have check has not been received by the Closing Time or the relevant Date of Delivery, as the case may beDate, but any such payment shall not relieve such Underwriter from its obligations hereunder. The certificates certificate(s) for the Initial Preferred Securities and the Option Securities, if any, will be made available for examination and packaging by the Representatives Representative not later than 10:00 A.M. 12:00 Noon, New York time, on the last business day prior to the Closing Time or Date. On the relevant Date of Delivery, as the case may be, in New York, New York. If authorized by the applicable Terms Agreement, the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company or the Operating Partnership, as the case may be, pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially in the form of Exhibit B hereto with such changes therein as the Company or the Operating Partnership, as the case may be, may approve. As compensation for arranging Delayed Delivery ContractsClosing Date, the Company will pay, or cause to be paid, the Operating Partnership, as the case may be, will pay commission payable at such time to the Representatives at Closing Time, for the respective accounts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors of the types described in the Prospectus. At the applicable Closing Time, the Company Underwriters under Section 2 hereof by check or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit checks payable to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth Representative in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery Contractsfederal funds.
Appears in 1 contract
Samples: Underwriting Agreement (Alabama Power Capital Trust I)
Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on the basis of the representations and warranties herein contained and shall be subject to the terms and conditions set forth herein or in the applicable Terms Agreement.
(b) In addition, on On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company or the Operating Partnership, as the case may be, may grant, if so provided in the applicable Terms Agreement relating agrees to the Initial Underwritten Securities, an option sell to the Underwriters named in such Terms Agreementeach Underwriter, severally and not jointly, to purchase up to the number of Option Securities set forth therein at the same price per Option Security as is applicable to the Initial Underwritten Securitiesand each Underwriter, less an amount equal to any dividends or distributions declared by the Company and paid or payable on the Initial Underwritten Securities but not payable on the Option Securities. Such option, if granted, will expire 30 days (or such lesser number of days as may be specified in the applicable Terms Agreement) after the Representation Date relating to the Initial Underwritten Securities, and may be exercised in whole or in part from time to time upon notice by the Representatives to the Company or the Operating Partnership, as the case may be, setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time, date and place of payment and delivery for such Option Securities. Any such time, date and place of delivery (a “Date of Delivery”) shall be determined by the Representatives, but shall not be later than seven full business days nor earlier than two full business days after the exercise of said option, nor in any event prior to the Closing Time, unless otherwise agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be. If the option is exercised as to all or any portion of the Option Securities, each of the Underwriters, acting severally and not jointly, will purchase that proportion of the total number of Option Securities then being purchased which the number of Initial Underwritten Securities each such Underwriter has severally agreed agrees to purchase as from the Company, at the price set forth in Schedule B, the applicable Terms Agreement bears aggregate amount of Securities set forth in Schedule A opposite the name of such Underwriter, plus any additional principal amount of Securities which such Underwriter may become obligated to purchase pursuant to the total number provisions of Initial Underwritten Securities (except as otherwise provided in the applicable Terms Agreement), subject to such adjustments as the Representatives in their discretion shall make to eliminate any sales or purchases of fractional Underwritten SecuritiesSection 10 hereof.
(cb) Payment of the purchase price for, and delivery of the certificates for, the Initial Underwritten Securities to be purchased by the Underwriters shall be made at the offices of Xxxxxxxx Chance US O'Melveny & Xxxxx LLP, 00 000 Xxxxx Xxxx 00xx Xxxxxx, Xxx XxxxXxxxxxx, Xxx Xxxx 00000, Xxxxxxxxxx 00000 or at such other place as shall be agreed upon by the Representatives Xxxxxxx Xxxxx and the Company or the Operating Partnership, as the case may beCompany, at 10:00 A.M. 7:00 a.m., Los Angeles time, on the fourth business day September 16, 1998 (or the third business day if required under Rule 15c6-1 of the 1934 Act, or unless postponed in accordance with the provisions of Section 10) following the date of the applicable Terms Agreement 10 hereof), or at such other time not later than ten business days after such date as shall be agreed upon by the Representatives Xxxxxxx Xxxxx and the Company (such time and date of payment and delivery being herein called the “"Closing Time”"). In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates for, such Option Securities shall be made at the above-mentioned offices of Xxxxxxxx Chance US LLP, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, on each Date of Delivery as specified in the notice from the Representatives to the Company. Payment for the Underwritten Securities shall be made to the Company or the Operating Partnership, as the case may be, by wire transfer of immediately available funds to a bank account designated by the Company or the Operating Partnership, as the case may beCompany, against delivery to the Representatives Xxxxxxx Xxxxx for the respective accounts of the Underwriters of certificates for the Underwritten Securities to be purchased by them. Certificates for the Underwritten Securities and the Option Securities, if any, shall be in such denominations ($1,000 or integral multiples thereof) and registered in such names as the Representatives Underwriters may request in writing at least two business days before the Closing Time or the relevant Date of Delivery, as the case may beTime. It is understood that each Underwriter has authorized the RepresentativesXxxxxxx Xxxxx, for its accounttheir respective accounts, to accept delivery of, receipt for, and make payment of the purchase price for, the Underwritten Securities and the Option Securities, if any, which it has agreed to purchase. The RepresentativesXxxxxxx Xxxxx, individually and not as representatives representative of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Underwritten Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have not been received by the Closing Time or the relevant Date of Delivery, as the case may beTime, but any such payment shall not relieve such Underwriter from its obligations hereunder. The certificates for the Initial Securities and the Option Securities, if any, will be made available for examination and packaging by the Representatives Xxxxxxx Xxxxx not later than 10:00 A.M. a.m. on the last business day prior to the Closing Time or the relevant Date of Delivery, as the case may be, in New York, New York. If authorized by the applicable Terms Agreement, the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company or the Operating Partnership, as the case may be, pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially in the form of Exhibit B hereto with such changes therein as the Company or the Operating Partnership, as the case may be, may approve. As compensation for arranging Delayed Delivery Contracts, the Company or the Operating Partnership, as the case may be, will pay to the Representatives at Closing Time, for the respective accounts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors offices of the types described in the Prospectus. At the applicable Closing Time, the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery ContractsChase Manhattan Bank.
Appears in 1 contract
Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on On the basis of the representations and warranties herein contained and shall be subject to the terms and conditions herein set forth, the Company agrees to sell to each Underwriter, severally and not jointly, and each Underwriter, severally and not jointly, agrees to purchase from the Company, at a purchase price of $33.84 per share, the number of Initial Securities set forth herein or in Schedule A opposite the applicable Terms Agreementname of such Underwriter, plus any additional number of Initial Securities which such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereof.
(b) In addition, on the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company or the Operating Partnership, as the case may be, may grant, if so provided in the applicable Terms Agreement relating to the Initial Underwritten Securities, hereby grants an option to the Underwriters named in such Terms Agreementeach Underwriter, severally and not jointly, to purchase up to an additional 1,800,000 shares of Common Stock at the number of price set forth in paragraph (a) above; provided that the purchase price for any Option Securities set forth therein at the same price per Option Security as is applicable to the Initial Underwritten Securities, less shall be reduced by an amount per share equal to any dividends or distributions declared by the Company and paid or payable on the Initial Underwritten Securities but not payable on the such Option Securities. Such option, if granted, will expire 30 days The number of Option Securities to be purchased by each Underwriter shall be the number of Option Securities which bears the same ratio to the aggregate number of Option Securities being purchased as the number of Initial Securities set forth opposite the name of such Underwriter in Schedule A hereto (or such lesser number increased as set forth in Section 10 hereof) bears to the aggregate number of days Initial Securities being purchased from the Company by the several Underwriters, subject, however, to such adjustments to eliminate any fractional Shares as the Representative in its sole discretion shall make. The option hereby granted may be specified in exercised through and including the applicable Terms Agreement) 30th day after the Representation Date relating to the Initial Underwritten Securities, date hereof and may be exercised in whole or in part from time to time upon notice by the Representatives Representative to the Company or the Operating Partnership, as the case may be, setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time, time and date and place of payment and delivery for such Option Securities. Any such time, time and date and place of delivery (a “Date of Delivery”) shall be determined by the RepresentativesRepresentative, but shall not be later than seven full business days nor earlier than two full business days after the exercise of said option, nor in any event prior to the Closing Time, unless otherwise agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be. If the option is exercised as to all or any portion of the Option Securities, each of the Underwriters, acting severally and not jointly, will purchase that proportion of the total number of Option Securities then being purchased which the number of Initial Underwritten Securities each such Underwriter has severally agreed to purchase as set forth in the applicable Terms Agreement bears to the total number of Initial Underwritten Securities (except as otherwise provided in the applicable Terms Agreement), subject to such adjustments as the Representatives in their discretion shall make to eliminate any sales or purchases of fractional Underwritten Securities.
(c) Payment of the purchase price for, and delivery of certificates for, the Initial Underwritten Securities to be purchased by the Underwriters shall be made at the offices office of Xxxxxxxx Chance US & Xxxxxxxx LLP, 00 0000 Xxxxxxx Xxxx 00xx XxxxxxXxxx, Xxxxx 0000, Xxx XxxxXxxxxxx, Xxx Xxxx Xxxxxxxxxx 00000, -0000 or at such other place as shall be agreed upon by the Representatives you and the Company or the Operating Partnership, as the case may beCompany, at 10:00 A.M. 7:00 a.m., California time, on the fourth business day (or the third business day if required under Rule 15c6-1 of the 1934 ActNovember 8, 2010, or unless postponed in accordance with the provisions of Section 10) following the date of the applicable Terms Agreement or at such other time not later than ten business days after such date as shall be agreed upon by the Representatives Representative and the Company (such time and date of payment and delivery being herein called the “Closing Time”). In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates for, such Option Securities shall be made at the above-mentioned offices of Xxxxxxxx Chance US LLPoffices, or at such other place as shall be agreed upon by the Representatives Representative and the Company or the Operating Partnership, as the case may beCompany, on each Date of Delivery as specified in the notice from the Representatives Representative to the Company. Payment for the Underwritten Securities shall be made to the Company or the Operating Partnership, as the case may be, by wire transfer of immediately available funds to a bank account designated by the Company or the Operating Partnership, as the case may be, against delivery to the Representatives Representative for the respective accounts of the Underwriters of certificates for the Underwritten Securities to be purchased by them. Certificates for the Underwritten Securities and the Option Securities, if any, shall be in such denominations and registered in such names as the Representatives Representative may request in writing at least two one business days day before the Closing Time or the relevant Date of Delivery, as the case may be. It is understood that each Underwriter has authorized the RepresentativesRepresentative, for its their account, to accept delivery of, receipt for, and make payment of the purchase price for, the Underwritten Securities and the Option Securities, if any, which it such Underwriter has agreed to purchase. The RepresentativesCitigroup Global Markets Inc., individually and not as representatives the representative of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Underwritten Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have check has not been received by the Closing Time or the relevant Date of Delivery, as the case may beTime, but any such payment shall not relieve release such Underwriter from its obligations hereunder. The certificates for the Initial Securities and the Option Securities, if any, will be made available for examination and packaging by the Representatives Representative not later than 10:00 A.M. a.m. on the last business day prior to the Closing Time or on the relevant Date of Delivery, as the case may be, in New York, New York. If authorized by the applicable Terms Agreement, the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company or the Operating Partnership, as the case may be, pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially in the form of Exhibit B hereto with such changes therein as the Company or the Operating Partnership, as the case may be, may approve. As compensation for arranging Delayed Delivery Contracts, the Company or the Operating Partnership, as the case may be, will pay to the Representatives at Closing Time, for the respective accounts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors of the types described in the Prospectus. At the applicable Closing Time, the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery Contracts.
Appears in 1 contract
Samples: Underwriting Agreement (Hcp, Inc.)
Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on the basis of the representations and warranties herein contained and shall be subject to the terms and conditions set forth herein or in the applicable Terms Agreement.
(b) In addition, on On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company or the Operating Partnership, as the case may be, may grant, if so provided in the applicable Terms Agreement relating Trust agrees to the Initial Underwritten Securities, an option sell to the Underwriters named in such Terms Agreementeach Underwriter, severally and not jointly, to purchase up to the number of Option Securities set forth therein at the same price per Option Security as is applicable to the Initial Underwritten Securitiesand each Underwriter, less an amount equal to any dividends or distributions declared by the Company and paid or payable on the Initial Underwritten Securities but not payable on the Option Securities. Such option, if granted, will expire 30 days (or such lesser number of days as may be specified in the applicable Terms Agreement) after the Representation Date relating to the Initial Underwritten Securities, and may be exercised in whole or in part from time to time upon notice by the Representatives to the Company or the Operating Partnership, as the case may be, setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time, date and place of payment and delivery for such Option Securities. Any such time, date and place of delivery (a “Date of Delivery”) shall be determined by the Representatives, but shall not be later than seven full business days nor earlier than two full business days after the exercise of said option, nor in any event prior to the Closing Time, unless otherwise agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be. If the option is exercised as to all or any portion of the Option Securities, each of the Underwriters, acting severally and not jointly, will purchase that proportion of the total number of Option Securities then being purchased which the number of Initial Underwritten Securities each such Underwriter has severally agreed agrees to purchase as from the Trust, at the price of $25 per Preferred Security and at an annual distribution rate per Preferred Security set forth in the applicable Terms Agreement bears to Pricing Agreement, the total number of Initial Underwritten Preferred Securities set forth in Schedule A opposite the name of such Underwriter (except as otherwise provided in the applicable Terms Pricing Agreement), subject plus any additional number of Preferred Securities that such Underwriter may become obligated to such adjustments purchase pursuant to the provisions of Section 10 hereof. In the event that the annual distribution rate has not been agreed upon and the Pricing Agreement has not been executed and delivered by all parties thereto by the close of business on the fourth business day following the date of this Agreement, this Agreement shall terminate forthwith, without liability of any party to any other party, unless otherwise agreed to by the Offerors and the Underwriters. As compensation to the Underwriters for their commitments hereunder and in view of the fact that the entire proceeds of the sale of the Preferred Securities (together with the entire proceeds from the sale by the Trust to the Company of the Common Securities) will be used to purchase the Subordinated Debt Securities of the Company, the Company hereby agrees to pay at the Closing Time (as defined below) to Merrxxx Xxxcx, xxr the Representatives accounts of the several Underwriters, a commission per Preferred Security determined by agreement between the Underwriters and the Company for the Preferred Securities to be delivered by the Trust hereunder at the Closing Time. The commission, when so determined, shall be set forth in their discretion shall make to eliminate any sales or purchases of fractional Underwritten Securitiesthe Pricing Agreement.
(cb) Payment of the purchase price for, and delivery of certificates for, the Initial Underwritten Preferred Securities to be purchased by the Underwriters shall be made at the offices office of Xxxxxxxx Chance US LLP, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or O'Melveny & Myerx xx at such other place as shall be agreed upon by the Representatives Underwriters and the Company or the Operating Partnership, as the case may beTrust, at 10:00 A.M. New York time on the fourth business day (or the third business day if required under Rule 15c6-1 of the 1934 Act, or (unless postponed in accordance with the provisions of Section 10) following the date after execution of the applicable Terms Agreement Pricing Agreement, or at such other time as not later than ten business days after such The certificates evidencing the Preferred Securities shall be agreed upon by the Representatives and the Company (such time and date of payment and delivery being herein called the “Closing Time”). In addition, in the event that any or all of the Option Securities are purchased by delivered to the Underwriters, through the facilities of The Depository Trust Company for the account of the Underwriters with any transfer taxes payable in connection with the transfer of the Preferred Securities duly paid, against payment of the purchase price for, and delivery of certificates for, such Option Securities shall be made at the above-mentioned offices of Xxxxxxxx Chance US LLP, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, on each Date of Delivery as specified in the notice from the Representatives to the Companytherefor. Payment for the Underwritten Securities shall be made to the Company or the Operating Partnership, as the case may be, by wire transfer of immediately available funds to a bank account designated by the Company or the Operating Partnership, as the case may be, against delivery to the Representatives for the respective accounts of the Underwriters of the Underwritten Securities to be purchased by them. Certificates for the Underwritten Securities and the Option Securities, if any, shall be in such denominations and registered in such names as the Representatives may request in writing at least two business days before the Closing Time or the relevant Date of Delivery, as the case may be. It is understood that each Underwriter has authorized the Representatives, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Underwritten Securities and the Option Securities, if any, which it has agreed to purchase. The Representatives, individually and not as representatives of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Underwritten Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have not been received by At the Closing Time or the relevant Date of Delivery, as the case may be, but any the Company will pay, or cause to be paid, the commission payable at such payment shall not relieve such Underwriter from its obligations hereunder. The certificates for the Initial Securities and the Option Securities, if any, will be made available for examination and packaging by the Representatives not later than 10:00 A.M. on the last business day prior time to the Closing Time Underwriters under Section 2 hereof by certified or the relevant Date of Delivery, as the case may be, in official bank check or checks payable to Merrxxx Xxxcx xx New York, New York. If authorized by the applicable Terms Agreement, the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company York Clearing House funds or the Operating Partnership, as the case may be, pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially in the form of Exhibit B hereto with such changes therein as the Company or the Operating Partnership, as the case may be, may approve. As compensation for arranging Delayed Delivery Contracts, the Company or the Operating Partnership, as the case may be, will pay to the Representatives at Closing Time, for the respective accounts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors of the types described in the Prospectus. At the applicable Closing Time, the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery Contractsother similar next day funds.
Appears in 1 contract
Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on On the basis of the representations and warranties herein contained and shall be subject to the terms and conditions set forth herein or in the applicable Terms Agreement.
(b) In additioncontained, on the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company or agrees to sell to each Underwriter, and each Underwriter agrees to purchase from the Operating PartnershipCompany, at a purchase price of $38.4925 per share, the number of Firm Securities set forth in Schedule A hereto opposite the name of such Underwriter, plus any additional number of Firm Securities which such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereof. On the basis of the representations and warranties herein contained, and subject to the terms and conditions herein set forth, the Company agrees to sell to each of the Underwriters, and the Underwriters shall have a one-time right to purchase from the Company, severally and not jointly, at a purchase price of $38.4925 per share, in the aggregate up to 900,000 Additional Securities. If the Representatives, on behalf of the Underwriters, elect to exercise such option, the Representatives shall so notify the Company in writing not later than 30 days after the date of this Agreement, but at any time within such 30 days, which notice shall specify the number of Additional Securities to be purchased by the Underwriters and the time and date on which such shares are to be purchased. Such date may be the same as the case Closing Time but shall in no event be earlier than the Closing Time nor later than ten business days after the date of such notice. Additional Securities may be, may grant, if so be purchased as provided in Section 2(c) hereof solely for the applicable Terms Agreement relating purpose of covering over-allotments made in connection with the public offering of the Firm Securities. If any Additional Securities are to the Initial Underwritten Securitiesbe purchased, an option to the Underwriters named in such Terms Agreementeach Underwriter agrees, severally and not jointly, to purchase up to the number of Option Additional Securities set forth therein at (subject to such adjustments to eliminate fractional shares as you may determine) that bears the same price per Option Security as is applicable proportion to the Initial Underwritten Securities, less an amount equal to any dividends or distributions declared by the Company and paid or payable on the Initial Underwritten Securities but not payable on the Option Securities. Such option, if granted, will expire 30 days (or such lesser number of days as may be specified in the applicable Terms Agreement) after the Representation Date relating to the Initial Underwritten Securities, and may be exercised in whole or in part from time to time upon notice by the Representatives to the Company or the Operating Partnership, as the case may be, setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time, date and place of payment and delivery for such Option Securities. Any such time, date and place of delivery (a “Date of Delivery”) shall be determined by the Representatives, but shall not be later than seven full business days nor earlier than two full business days after the exercise of said option, nor in any event prior to the Closing Time, unless otherwise agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be. If the option is exercised as to all or any portion of the Option Securities, each of the Underwriters, acting severally and not jointly, will purchase that proportion of the total number of Option Additional Securities then being to be purchased which as the number of Initial Underwritten Firm Securities each set forth opposite the name of such Underwriter has severally agreed to purchase as set forth in the applicable Terms Agreement Schedule A hereto bears to the total number of Initial Underwritten Firm Securities.
(b) The Company has been advised by the Representatives that the Underwriters propose to make a public offering of the Securities (except as otherwise provided in the applicable Terms Agreement), subject to such adjustments soon as the Representatives in their discretion shall make deem advisable after this Agreement has been executed and delivered. The Company has further been advised by the Representatives that the Underwriters propose to eliminate any sales or purchases initially offer the Securities to the public at the public offering price of fractional Underwritten Securities$39.5625 per share.
(c) Payment of the purchase price for, and delivery of certificates for, the Initial Underwritten Firm Securities to be purchased by the Underwriters shall be made at the offices office of Berlack, Israels & Xxxxxxxx Chance US LLP, 00 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may beCompany, at 10:00 A.M. on the fourth business day February 19, 1998 (or the third business day if required under Rule 15c6-1 of the 1934 Act, or unless postponed in accordance with the provisions of Section 10) following the date of the applicable Terms Agreement 10 hereof), or at such other time not later than five business days after such date as shall be agreed upon by the Representatives and the Company (such time and date of payment and delivery being herein called the “Closing Time”Time ). In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates for, such Option Securities shall be made at the above-mentioned offices of Xxxxxxxx Chance US LLP, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, on each Date of Delivery as specified in the notice from the Representatives to the Company. Payment for the Underwritten Securities shall be made to the Company or the Operating Partnership, as the case may be, by wire transfer of in immediately available funds to a bank account designated by the Company or the Operating Partnership, as the case may be, against delivery to the Representatives for the respective accounts of the Underwriters of the Underwritten Securities to be purchased by them. Certificates for the Underwritten Securities and the Option Securities, if any, shall be in such denominations and registered in such names as the Representatives may request in writing at least two business days before the Closing Time or the relevant Date of Delivery, as the case may be. It is understood that each Underwriter has authorized the Representatives, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Underwritten Securities and the Option Securities, if any, which it has agreed to purchase. The Representatives, individually and not as representatives of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Underwritten Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have not been received by the Closing Time or the relevant Date of Delivery, as the case may be, but any such payment shall not relieve such Underwriter from its obligations hereunder. The certificates for the Initial Securities and the Option Securities, if any, will be made available for examination and packaging by the Representatives not later than 10:00 A.M. on the last business day prior to the Closing Time or the relevant Date of Delivery, as the case may be, in New York, New York. If authorized by the applicable Terms Agreement, the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company or the Operating Partnership, as the case may be, pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially in the form of Exhibit B hereto with such changes therein as the Company or the Operating Partnership, as the case may be, may approve. As compensation for arranging Delayed Delivery Contracts, the Company or the Operating Partnership, as the case may be, will pay to the Representatives at Closing Time, for the respective accounts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors of the types described in the Prospectus. At the applicable Closing Time, the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery Contracts.
Appears in 1 contract
Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on the basis of the representations and warranties herein contained and shall be subject to the terms and conditions set forth herein or in the applicable Terms Agreement.
(b) In addition, on On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company or the Operating Partnership, as the case may be, may grant, if so provided in the applicable Terms Agreement relating agrees to the Initial Underwritten Securities, an option sell to the Underwriters named in such Terms Agreementeach Underwriter, severally and not jointly, to purchase up to the number of Option Securities set forth therein at the same price per Option Security as is applicable to the Initial Underwritten Securitiesand each Underwriter, less an amount equal to any dividends or distributions declared by the Company and paid or payable on the Initial Underwritten Securities but not payable on the Option Securities. Such option, if granted, will expire 30 days (or such lesser number of days as may be specified in the applicable Terms Agreement) after the Representation Date relating to the Initial Underwritten Securities, and may be exercised in whole or in part from time to time upon notice by the Representatives to the Company or the Operating Partnership, as the case may be, setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time, date and place of payment and delivery for such Option Securities. Any such time, date and place of delivery (a “Date of Delivery”) shall be determined by the Representatives, but shall not be later than seven full business days nor earlier than two full business days after the exercise of said option, nor in any event prior to the Closing Time, unless otherwise agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be. If the option is exercised as to all or any portion of the Option Securities, each of the Underwriters, acting severally and not jointly, will purchase that proportion of the total number of Option Securities then being purchased which the number of Initial Underwritten Securities each such Underwriter has severally agreed agrees to purchase as from the Company, at the price set forth in Schedule B, the applicable Terms Agreement bears aggregate amount of Securities set forth in Schedule A opposite the name of such Underwriter, plus any additional principal amount of Securities which such Underwriter may become obligated to purchase pursuant to the total number provisions of Initial Underwritten Securities (except as otherwise provided in the applicable Terms Agreement), subject to such adjustments as the Representatives in their discretion shall make to eliminate any sales or purchases of fractional Underwritten SecuritiesSection 11 hereof.
(cb) Payment of the purchase price for, and delivery of the certificates for, the Initial Underwritten Securities to be purchased by the Underwriters shall be made at the offices of Xxxxxxxx Chance US O'Melveny & Xxxxx LLP, 00 000 Xxxxx Xxxx 00xx Xxxxxx, Xxx XxxxXxxxxxx, Xxx Xxxx 00000, Xxxxxxxxxx 00000 or at such other place as shall be agreed upon by the Representatives Xxxxxxx Xxxxx Xxxxxx and the Company or the Operating Partnership, as the case may beCompany, at 10:00 A.M. 7:00 a.m., Los Angeles time, on the fourth business day May 23, 2000 (or the third business day if required under Rule 15c6-1 of the 1934 Act, or unless postponed in accordance with the provisions of Section 10) following the date of the applicable Terms Agreement 11 hereof), or at such other time not later than ten business days after such date as shall be agreed upon by the Representatives Xxxxxxx Xxxxx Xxxxxx and the Company (such time and date of payment and delivery being herein called the “"Closing Time”"). In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates for, such Option Securities shall be made at the above-mentioned offices of Xxxxxxxx Chance US LLP, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, on each Date of Delivery as specified in the notice from the Representatives to the Company. Payment for the Underwritten Securities shall be made to the Company or the Operating Partnership, as the case may be, by wire transfer of immediately available funds to a bank account designated by the Company or the Operating Partnership, as the case may beCompany, against delivery to the Representatives Xxxxxxx Xxxxx Xxxxxx for the respective accounts of the Underwriters of certificates for the Underwritten Securities to be purchased by them. Certificates for the Underwritten Securities and the Option Securities, if any, shall be in such denominations ((Y)1,000,000 or integral multiples thereof) and registered in such names as the Representatives Underwriters may request in writing at least two business days before the Closing Time or the relevant Date of Delivery, as the case may beTime. It is understood that each Underwriter has authorized the RepresentativesXxxxxxx Xxxxx Xxxxxx, for its accounttheir respective accounts, to accept delivery of, receipt for, and make payment of the purchase price for, the Underwritten Securities and the Option Securities, if any, which it has agreed to purchase. The RepresentativesXxxxxxx Xxxxx Xxxxxx, individually and not as representatives representative of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Underwritten Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have not been received by the Closing Time or the relevant Date of Delivery, as the case may beTime, but any such payment shall not relieve such Underwriter from its obligations hereunder. The certificates for the Initial Securities and the Option Securities, if any, will be made available for examination and packaging by the Representatives Xxxxxxx Xxxxx Xxxxxx not later than 10:00 A.M. a.m. on the last business day prior to the Closing Time or the relevant Date of Delivery, as the case may be, in New York, New York. If authorized by the applicable Terms Agreement, the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company or the Operating Partnership, as the case may be, pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially in the form of Exhibit B hereto with such changes therein as the Company or the Operating Partnership, as the case may be, may approve. As compensation for arranging Delayed Delivery Contracts, the Company or the Operating Partnership, as the case may be, will pay to the Representatives at Closing Time, for the respective accounts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors offices of the types described in the Prospectus. At the applicable Closing Time, the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery ContractsChase Manhattan Bank.
Appears in 1 contract
Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on On the basis of the representations and warranties herein contained and shall be subject to the terms and conditions herein set forth, the Company agrees to issue and sell 1,925,000 shares of Common Stock and the Selling Stockholder agrees to sell 275,000 shares of Common Stock to each Underwriter, and each Underwriter, severally and not jointly, agrees to purchase from the Company and the Selling Stockholder, at the price agreed upon by the Representatives, the Company and the Selling Stockholder as set forth herein or in the applicable Terms Pricing Agreement, the number of shares of Common Stock set forth in Schedule A opposite the name of such Underwriter (except as otherwise provided in the Pricing Agreement). Each Underwriter shall be obligated to purchase from the Company and from the Selling Stockholder that number of shares of the Common Stock which represents the same proportion of the number of shares of the Common Stock to be sold by the Company and by the Selling Stockholder as the number of shares of the Common Stock set forth opposite the name of such Underwriter in Schedule A represents of the total number of shares of the Common Stock to be purchased by all of the Underwriters pursuant to this Agreement. The respective purchase obligations of the Underwriters with respect to the Common Stock shall be rounded among the Underwriters to avoid fractional shares, as the Representatives may determine.
(i) If the Company has elected not to rely upon Rule 430A under the 1933 Act Regulations, the initial public offering price of the Securities and the purchase price of the Securities to be paid by the several Underwriters shall be agreed upon and set forth in the Pricing Agreement, dated the date hereof, and an amendment to the Registration Statement and the Prospectus will be filed before the Registration Statement becomes effective.
(ii) If the Company has elected to rely upon Rule 430A under the 1933 Act Regulations, the initial public offering price of the Securities and the purchase price of the Securities to be paid by the several Underwriters shall be determined by agreement among the Representatives, the Company and the Selling Stockholder and set forth in the Pricing Agreement. In the event that such prices have not been agreed upon and the Pricing Agreement has not been executed and delivered by all parties thereto by the close of business on the fourth business day following the date of this Agreement, this Agreement shall terminate forthwith, without liability of any party to any other party, unless otherwise agreed to by the Company, the Selling Stockholder and the Representatives.
(b) In addition, on the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company or the Operating Partnership, as the case may be, may grant, if so provided in the applicable Terms Agreement relating to the Initial Underwritten Securities, hereby grants an option to the Underwriters named in such Terms AgreementUnderwriters, severally and not jointly, to purchase up to 330,000 shares of Common Stock at the number of Option Securities price per share set forth therein at in the same price per Option Security as is applicable to the Initial Underwritten Securities, less an amount equal to any dividends or distributions declared by the Company and paid or payable on the Initial Underwritten Securities but not payable on the Option SecuritiesPricing Agreement. Such option, if granted, The option hereby granted will expire 30 days after (i) the date the Registration Statement becomes effective, if the Company has elected not to rely on Rule 430A under the 1933 Act Regulations or such lesser number (ii) the date of days as may be specified in the applicable Terms Pricing Agreement) after , if the Representation Date relating Company has elected to rely on Rule 430A under the Initial Underwritten Securities1933 Act Regulations, and may be exercised in whole or in part from time to time (but not more than twice) only for the purpose of covering over-allotments which may be made in connection with the offering and distribution of the Initial Securities upon notice by the Representatives to the Company or the Operating Partnership, as the case may be, setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time, time and date and place of payment and delivery for such Option Securities. Any such time, time and date and place of delivery payment (a “"Date of Delivery”") shall be determined by the Representatives, but shall not be later than seven full business days nor earlier than two full business days Business Days after the exercise of said option, nor in any event prior to the Closing Time, as hereinafter defined, unless otherwise agreed upon by the Representatives and the Company or the Operating Partnership, as the case may beCompany. If the option is exercised as to all or any portion of the Option Securities, each of the Underwriters, acting severally and not jointly, will purchase that proportion of the total number of Option Securities then being purchased which the number of Initial Underwritten Securities each such Underwriter has severally agreed to purchase as set forth in Schedule A opposite the applicable Terms Agreement name of such Underwriters bears to the total number of Initial Underwritten Securities (except as otherwise provided in the applicable Terms Pricing Agreement), subject in each case to such adjustments as the Representatives in their discretion shall make to eliminate any sales or purchases of fractional Underwritten Securities.
shares. 7 8 (c) Payment of the purchase price for, and delivery of certificates for, the Initial Underwritten Securities to be purchased by the Underwriters shall be made at the offices of Xxxxxxxx Chance US LLPMcDoxxxx & Xompany Securities, 00 Xxxx 00xx XxxxxxInc., Xxx XxxxMcDoxxxx Xxxestment Center, Xxx Xxxx 00000Cleveland, Ohio or at such other place as shall be agreed upon by the Representatives Representatives, the Company and the Company or the Operating Partnership, as the case may beSelling Stockholder, at 10:00 A.M. on the fourth third business day (or the third business day if required under Rule 15c6-1 of the 1934 Act, or unless postponed in accordance with the provisions of Section 10) following the date the Registration Statement becomes effective (or, if the Company has elected to rely upon Rule 430A, the third business day after execution of the applicable Terms Agreement Pricing Agreement), or at such other time not later than ten business days after such date as shall be agreed upon by the Representatives Representatives, the Company and the Company Selling Stockholder (such time and date of payment and delivery being herein called the “"Closing Time”"); provided, however, that if the Registration Statement becomes effective later than 4:30 p.m., Eastern Time, on any date, then, subject to the foregoing, the Closing Time shall be the fourth business day thereafter (or, if the Company has elected to rely upon Rule 430A, and the Pricing Agreement is not executed until after 4:30 p.m., Eastern Time, on any date, the fourth business day after execution of the Pricing Agreement). In addition, in the event that any or all of the Option Securities are to be purchased by the Underwriters, payment of the purchase price for, and delivery of certificates for, such Option Securities shall be made at the above-mentioned offices of Xxxxxxxx Chance US LLPMcDoxxxx & Xompany Securities, Inc., or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, on each Date of Delivery as specified in the notice from the Representatives to the Company. Payment for the Underwritten Securities shall be made to the Company or and the Operating Partnership, as the case may be, Selling Stockholder by wire transfer of immediately available funds to a bank account accounts designated by the Company or and the Operating Partnership, as the case may beSelling Stockholder, against delivery of the Securities to the Representatives for the respective accounts of the Underwriters of the Underwritten Underwriters. The certificates representing Securities to be purchased by them. Certificates for the Underwritten Securities and the Option Securities, if any, shall be in such denominations and registered in such names as the Representatives may request in writing at least two business days before the Closing Time or the relevant Date of Delivery, as the case may beTime. It is understood that each Underwriter has authorized the Representatives, for its their account, to accept delivery of, receipt for, and make payment of the purchase price for, the Underwritten Securities and the Option Securities, if any, which it has agreed to purchase. The Representatives, individually and not as representatives of the Underwriters, Representatives may (but shall not be obligated to) make payment of the purchase price for the Underwritten Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have check has not been received by the Closing Time or the relevant Date of Delivery, as the case may beTime, but any such payment shall not relieve such Underwriter from its obligations hereunder. The certificates for the Initial Securities and the Option Securities, if any, will be made available for examination and packaging by the Representatives Underwriters not later than 10:00 A.M. on the last business day prior to the Closing Time or the relevant Date of Delivery, at such place as the case Underwriters may bedesignate in Cleveland, in New York, New York. If authorized by the applicable Terms Agreement, the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company or the Operating Partnership, as the case may be, pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially in the form of Exhibit B hereto with such changes therein as the Company or the Operating Partnership, as the case may be, may approve. As compensation for arranging Delayed Delivery Contracts, the Company or the Operating Partnership, as the case may be, will pay to the Representatives at Closing Time, for the respective accounts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors of the types described in the Prospectus. At the applicable Closing Time, the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery ContractsOhio.
Appears in 1 contract
Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on On the basis of the representations and warranties herein contained and shall be subject to the terms and conditions herein set forth, the Company agrees to sell to each Underwriter, severally and not jointly, and each Underwriter, severally and not jointly, agrees to purchase from the Company, at a purchase price of $23.76 per share, the number of Initial Securities set forth herein or in Schedule A opposite the applicable Terms Agreementname of such Underwriter, plus any additional number of Initial Securities which such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereof.
(b) In addition, on the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company or the Operating Partnership, as the case may be, may grant, if so provided in the applicable Terms Agreement relating to the Initial Underwritten Securities, hereby grants an option to the Underwriters named in such Terms Agreementeach Underwriter, severally and not jointly, to purchase up to an additional 2,325,000 shares of Common Stock at the number of price set forth in paragraph (a) above; provided that the purchase price for any Option Securities set forth therein at the same price per Option Security as is applicable to the Initial Underwritten Securities, less shall be reduced by an amount per share equal to any dividends or distributions declared by the Company and paid or payable on the Initial Underwritten Securities but not payable on the such Option Securities. Such option, if granted, will expire 30 days The number of Option Securities to be purchased by each Underwriter shall be the number of Option Securities which bears the same ratio to the aggregate number of Option Securities being purchased as the number of Initial Securities set forth opposite the name of such Underwriter in Schedule A hereto (or such lesser number increased as set forth in Section 10 hereof) bears to the aggregate number of days Initial Securities being purchased from the Company by the several Underwriters, subject, however, to such adjustments to eliminate any fractional Shares as the Representative in its sole discretion shall make. The option hereby granted may be specified in exercised through and including the applicable Terms Agreement) 30th day after the Representation Date relating to the Initial Underwritten Securities, date hereof and may be exercised in whole or in part from time to time upon notice by the Representatives Representative to the Company or the Operating Partnership, as the case may be, setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time, time and date and place of payment and delivery for such Option Securities. Any such time, time and date and place of delivery (a “Date of Delivery”) shall be determined by the RepresentativesRepresentative, but shall not be later than seven full business days nor earlier than two full business days after the exercise of said option, nor in any event prior to the Closing Time, unless otherwise agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be. If the option is exercised as to all or any portion of the Option Securities, each of the Underwriters, acting severally and not jointly, will purchase that proportion of the total number of Option Securities then being purchased which the number of Initial Underwritten Securities each such Underwriter has severally agreed to purchase as set forth in the applicable Terms Agreement bears to the total number of Initial Underwritten Securities (except as otherwise provided in the applicable Terms Agreement), subject to such adjustments as the Representatives in their discretion shall make to eliminate any sales or purchases of fractional Underwritten Securities.
(c) Payment of the purchase price for, and delivery of certificates for, the Initial Underwritten Securities to be purchased by the Underwriters shall be made at the offices office of Xxxxxxxx Chance US & Xxxxxxxx LLP, 00 0000 Xxxxxxx Xxxx 00xx XxxxxxXxxx, Xxxxx 0000, Xxx XxxxXxxxxxx, Xxx Xxxx Xxxxxxxxxx 00000, -0000 or at such other place as shall be agreed upon by the Representatives you and the Company or the Operating Partnership, as the case may beCompany, at 10:00 A.M. 7:00 a.m., California time, on the fourth business day (or the third business day if required under Rule 15c6-1 of the 1934 ActAugust 10, 2009, or unless postponed in accordance with the provisions of Section 10) following the date of the applicable Terms Agreement or at such other time not later than ten business days after such date as shall be agreed upon by the Representatives Representative and the Company (such time and date of payment and delivery being herein called the “Closing Time”). In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates for, such Option Securities shall be made at the above-mentioned offices of Xxxxxxxx Chance US LLPoffices, or at such other place as shall be agreed upon by the Representatives Representative and the Company or the Operating Partnership, as the case may beCompany, on each Date of Delivery as specified in the notice from the Representatives Representative to the Company. Payment for the Underwritten Securities shall be made to the Company or the Operating Partnership, as the case may be, by wire transfer of immediately available funds to a bank account designated by the Company or the Operating Partnership, as the case may be, against delivery to the Representatives Representative for the respective accounts of the Underwriters of certificates for the Underwritten Securities to be purchased by them. Certificates for the Underwritten Securities and the Option Securities, if any, shall be in such denominations and registered in such names as the Representatives Representative may request in writing at least two one business days day before the Closing Time or the relevant Date of Delivery, as the case may be. It is understood that each Underwriter has authorized the RepresentativesRepresentative, for its their account, to accept delivery of, receipt for, and make payment of the purchase price for, the Underwritten Securities and the Option Securities, if any, which it such Underwriter has agreed to purchase. The RepresentativesXxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, individually and not as representatives the representative of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Underwritten Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have check has not been received by the Closing Time or the relevant Date of Delivery, as the case may beTime, but any such payment shall not relieve release such Underwriter from its obligations hereunder. The certificates for the Initial Securities and the Option Securities, if any, will be made available for examination and packaging by the Representatives Representative not later than 10:00 A.M. a.m. on the last business day prior to the Closing Time or on the relevant Date of Delivery, as the case may be, in New York, New York. If authorized by the applicable Terms Agreement, the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company or the Operating Partnership, as the case may be, pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially in the form of Exhibit B hereto with such changes therein as the Company or the Operating Partnership, as the case may be, may approve. As compensation for arranging Delayed Delivery Contracts, the Company or the Operating Partnership, as the case may be, will pay to the Representatives at Closing Time, for the respective accounts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors of the types described in the Prospectus. At the applicable Closing Time, the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery Contracts.
Appears in 1 contract
Samples: Underwriting Agreement (Hcp, Inc.)
Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on the basis of the representations and warranties herein contained and shall be subject to the terms and conditions set forth herein or in the applicable Terms Agreement.
(b) In addition, on On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company or the Operating Partnership, as the case may be, may grant, if so provided in the applicable Terms Agreement relating agrees to the Initial Underwritten Securities, an option sell to the Underwriters named in such Terms Agreementeach Underwriter, severally and not jointly, to purchase up to the number of Option Securities set forth therein at the same price per Option Security as is applicable to the Initial Underwritten Securitiesand each Underwriter, less an amount equal to any dividends or distributions declared by the Company and paid or payable on the Initial Underwritten Securities but not payable on the Option Securities. Such option, if granted, will expire 30 days (or such lesser number of days as may be specified in the applicable Terms Agreement) after the Representation Date relating to the Initial Underwritten Securities, and may be exercised in whole or in part from time to time upon notice by the Representatives to the Company or the Operating Partnership, as the case may be, setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time, date and place of payment and delivery for such Option Securities. Any such time, date and place of delivery (a “Date of Delivery”) shall be determined by the Representatives, but shall not be later than seven full business days nor earlier than two full business days after the exercise of said option, nor in any event prior to the Closing Time, unless otherwise agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be. If the option is exercised as to all or any portion of the Option Securities, each of the Underwriters, acting severally and not jointly, will purchase that proportion of the total number of Option Securities then being purchased which the number of Initial Underwritten Securities each such Underwriter has severally agreed agrees to purchase as from the Company, at the price set forth in Schedule B, the applicable Terms Agreement bears aggregate amount of Securities set forth in Schedule A opposite the name of such Underwriter, plus any additional principal amount of Securities which such Underwriter may become obligated to purchase pursuant to the total number provisions of Initial Underwritten Securities (except as otherwise provided in the applicable Terms Agreement), subject to such adjustments as the Representatives in their discretion shall make to eliminate any sales or purchases of fractional Underwritten SecuritiesSection 11 hereof.
(cb) Payment of the purchase price for, and delivery of the certificates for, the Initial Underwritten Securities to be purchased by the Underwriters shall be made at the offices of Xxxxxxxx Chance US O’Melveny & Xxxxx LLP, 00 000 Xxxxx Xxxx 00xx Xxxxxx, Xxx XxxxXxxxxxx, Xxx Xxxx 00000, Xxxxxxxxxx 00000 or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may beCompany, at 10:00 A.M. 7:00 a.m., Los Angeles time, on the fourth business day March 9, 2005 (or the third business day if required under Rule 15c6-1 of the 1934 Act, or unless postponed in accordance with the provisions of Section 10) following the date of the applicable Terms Agreement 11 hereof), or at such other time not later than ten business days after such date as shall be agreed upon by the Representatives and the Company (such time and date of payment and delivery being herein called the “Closing Time”). In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates for, such Option Securities shall be made at the above-mentioned offices of Xxxxxxxx Chance US LLP, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, on each Date of Delivery as specified in the notice from the Representatives to the Company. Payment for the Underwritten Securities shall be made to the Company or the Operating Partnership, as the case may be, by wire transfer of immediately available funds to a bank account designated by the Company or the Operating Partnership, as the case may beCompany, against delivery to the Representatives for the respective accounts of the Underwriters of certificates for the Underwritten Securities to be purchased by them. Certificates for the Underwritten Securities and the Option Securities, if any, shall be in such denominations (minimum denominations of $1,000 and integral multiples of $1,000 in excess thereof) and registered in such names as the Representatives Underwriters may request in writing at least two business days before the Closing Time or the relevant Date of Delivery, as the case may beTime. It is understood that each Underwriter has authorized the Representatives, for its accounttheir respective accounts, to accept delivery of, receipt for, and make payment of the purchase price for, the Underwritten Securities and the Option Securities, if any, which it has agreed to purchase. The Each of the Representatives, individually and not as representatives representative of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Underwritten Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have not been received by the Closing Time or the relevant Date of Delivery, as the case may beTime, but any such payment shall not relieve such Underwriter from its obligations hereunder. The certificates for the Initial Securities and the Option Securities, if any, will be made available for examination and packaging by the Representatives not later than 10:00 A.M. a.m. on the last business day prior to the Closing Time or the relevant Date of Delivery, as the case may be, in New York, New York. If authorized by the applicable Terms Agreement, the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company or the Operating Partnership, as the case may be, pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially in the form of Exhibit B hereto with such changes therein as the Company or the Operating Partnership, as the case may be, may approve. As compensation for arranging Delayed Delivery Contracts, the Company or the Operating Partnership, as the case may be, will pay to the Representatives at Closing Time, for the respective accounts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors offices of the types described in the Prospectus. At the applicable Closing Time, the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery ContractsJPMorgan Chase Bank.
Appears in 1 contract
Sale and Delivery to Underwriters Closing. (a) The several commitments terms and rights of the Underwriters to purchase the Underwritten Preferred Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on the basis of the representations and warranties herein contained and shall be subject to the terms and conditions set forth herein or as specified in the applicable Terms Pricing Agreement.
(b) In addition, on the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company or the Operating Partnership, as the case may be, may grant, if so provided in the applicable Terms Agreement relating to the Initial Underwritten Securities, Offerors hereby grant an option to the Underwriters named in such Terms AgreementUnderwriters, severally and not jointly, to purchase up to an additional 600,00 Pre- ferred Securities at the number of Option Securities price per Preferred Security set forth therein in the Pricing Agreement. The option hereby granted will expire at the same price per Option Security as is applicable to the Initial Underwritten Securities, less an amount equal to any dividends or distributions declared by the Company and paid or payable close of business on the Initial Underwritten Securities but not payable on the Option Securities. Such option, if granted, will expire 30 days (or such lesser number of days as may be specified in the applicable Terms Agreement) 30th calendar day after the Representation Date relating to the Initial Underwritten Securities, date hereof and may be exercised in whole or in part from time to time only for the purpose of covering overallotments which may be made in connection with the offering and distribution of the Initial Securities upon notice by the Representatives to the Company or the Operating Partnership, as the case may be, Offerors setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time, time and date and place of payment and delivery for such Option Securities. Any such time, time and date and place of delivery (a “"Date of Delivery”") shall be determined by the RepresentativesXxxxxxx Xxxxx, but shall not be later than seven full business days nor earlier than two full business days after the exercise of said option, nor in any event prior to the Closing Time, unless otherwise agreed upon by the Representatives and the Company or the Operating Partnership, as the case may behereinafter defined. If the option is exercised as to all or any portion of the Option Securities, each of the Underwriters, acting severally and not jointly, will purchase that proportion the same percentage of the total number of Option Securities then being purchased which the number of Initial Underwritten Securities each as such Underwriter has severally agreed to purchase is purchasing of the Initial Securities as set forth in Schedule I to the applicable Terms Pricing Agreement opposite the name of such Underwriter bears to the total number of Initial Underwritten Securities (except as otherwise provided in the applicable Terms Agreement)Securities, subject in each case to such adjustments as the Representatives Xxxxxxx Xxxxx in their its discretion shall make to eliminate any sales or purchases of fractional Underwritten Securitiesshares.
(c) Payment of the purchase price for, and delivery of certificates for, the Initial Underwritten Securities and the Option Securities (if the option provided for in Section 2(b) hereof shall have been exercised on or before the first business day prior to be purchased by the Underwriters Closing Time) shall be made at the offices office of Xxxxxxxx Chance US Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, 00 Xxxx 00xx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may beOfferors, at 10:00 A.M. New York time on the fourth business day (or the third business day if required under Rule 15c6-1 of the 1934 Act, or (unless postponed in accordance with the provisions of Section 10) following the date after execution of the applicable Terms Agreement Pricing Agreement, or at such other time not later than two business days after such date as shall be agreed upon by the Representatives Representatives, the Trust and the Company (such time and date of payment and delivery being herein called the “"Closing Time”"). Payment for the Preferred Securities purchased by the Underwriters shall be made to the Trust by wire transfer of immediately available funds to a bank account designated by the Trust, against delivery to the Representatives for the respective accounts of the Underwriters of certificates for the Preferred Securities to be purchased by them. In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates for, closing with respect to such Option Securities shall be made at the above-mentioned offices of Xxxxxxxx Chance US LLPoffices, or at such other place as shall be agreed upon by the Representatives Xxxxxxx Xxxxx and the Company or the Operating Partnership, as the case may beOfferors, on each Date of Delivery as specified in the notice from the Representatives Xxxxxxx Xxxxx to the Company. Payment .
(d) Subject to the terms and provisions of the Declaration, certificates for the Underwritten Securities shall be made to the Company or the Operating Partnership, as the case may be, by wire transfer of immediately available funds to a bank account designated by the Company or the Operating Partnership, as the case may be, against delivery to the Representatives for the respective accounts of the Underwriters of the Underwritten Preferred Securities to be purchased by them. Certificates for the Underwritten Securities and the Option Securities, if any, Underwriters shall be in such denominations and registered in such names as the Representatives Underwriters may request in writing at least two business days before the Closing Time or the relevant any Date of Delivery, as the case may be. .
(e) It is understood that each Underwriter has authorized the RepresentativesXxxxxxx Xxxxx, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Underwritten Preferred Securities and the Option Securities, if any, which that it has agreed to purchase. The RepresentativesXxxxxxx Xxxxx, individually and not as representatives Representative of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Underwritten Securities or the Option Preferred Securities, if any, to be purchased by any Underwriter whose funds have not been received by the Closing Time or the relevant any Date of Delivery, as the case may be, but any such payment shall not relieve such Underwriter from its obligations hereunder. The certificates for the Initial Securities and the Option Securities, if any, will be made available for examination and packaging by the Representatives not later than 10:00 A.M. on the last business day prior to At the Closing Time Time, or the relevant any Date of Delivery, as the case may be, in New Yorkthe Company will pay, New York. If authorized by the applicable Terms Agreementor cause to be paid, the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company or the Operating Partnership, as the case may be, pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially in the form of Exhibit B hereto with commission payable at such changes therein as the Company or the Operating Partnership, as the case may be, may approve. As compensation for arranging Delayed Delivery Contracts, the Company or the Operating Partnership, as the case may be, will pay time to the Representatives at Closing TimeUnderwriters under this Section 2 to Xxxxxxx Lynch, for the respective accounts Pierce, Xxxxxx & Xxxxx Incorporated by wire transfer of the Underwriters, immediately available funds to a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors of the types described in the Prospectus. At the applicable Closing Time, the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed bank account designated by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery ContractsXxxxxxx Xxxxx.
Appears in 1 contract
Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on the basis of the representations and warranties herein contained and shall be subject to the terms and conditions set forth herein or in the applicable Terms Agreement.
(b) In addition, on On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company or the Operating Partnership, as the case may be, may grant, if so provided in the applicable Terms Agreement relating Trust agrees to the Initial Underwritten Securities, an option sell to the Underwriters named in such Terms Agreementeach Underwriter, severally and not jointly, to purchase up to the number of Option Securities set forth therein at the same price per Option Security as is applicable to the Initial Underwritten Securitiesand each Underwriter, less an amount equal to any dividends or distributions declared by the Company and paid or payable on the Initial Underwritten Securities but not payable on the Option Securities. Such option, if granted, will expire 30 days (or such lesser number of days as may be specified in the applicable Terms Agreement) after the Representation Date relating to the Initial Underwritten Securities, and may be exercised in whole or in part from time to time upon notice by the Representatives to the Company or the Operating Partnership, as the case may be, setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time, date and place of payment and delivery for such Option Securities. Any such time, date and place of delivery (a “Date of Delivery”) shall be determined by the Representatives, but shall not be later than seven full business days nor earlier than two full business days after the exercise of said option, nor in any event prior to the Closing Time, unless otherwise agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be. If the option is exercised as to all or any portion of the Option Securities, each of the Underwriters, acting severally and not jointly, will agrees to purchase that proportion of from the total number of Option Securities then being purchased which Trust, at the price $________ per security, the number of Initial Underwritten Preferred Securities each such Underwriter has severally agreed to purchase as set forth in Schedule A opposite the applicable Terms Agreement bears name of such Underwriter, plus any additional number of Preferred Securities that such Underwriter may become obligated to purchase pursuant to the total number provisions of Initial Underwritten Section 10 hereof. The initial public offering price per Preferred Security shall be $_________. As compensation to the Underwriters for their commitments hereunder and in view of the fact that the proceeds of the sale of the Preferred Securities (except as otherwise provided in will be used to purchase the applicable Terms Agreement)Subordinated Debentures of the Company, subject the Company hereby agrees to such adjustments as pay at the Representatives in their discretion Closing Time to the Representative, for the accounts of the several Underwriters, a commission of $______ per Preferred Security; provided, however, that the commission per Preferred Security for sales of 10,000 or more Preferred Securities to a single purchaser shall make to eliminate any sales or purchases of fractional Underwritten Securitiesbe $_______.
(cb) Payment of the purchase price for, and delivery of certificates for, for the Initial Underwritten Preferred Securities to be purchased by the Underwriters shall be made at the offices office of Xxxxxxxx Chance US LLPSidley & Austin, 00 Xxxx 00xx 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as shall be agreed upon by the Representatives Representative and the Company or the Operating Partnership, as the case may beTrust, at 10:00 A.M. New York time on the fourth business day (or the third business day if required under Rule 15c6-1 of the 1934 Act, or (unless postponed in accordance with the provisions of Section 10) following after the date of the applicable Terms Agreement hereof, or at such other time not later than ten business days after such date as shall be agreed upon by the Representatives Representative, the Trust, and the Company (such time and date of payment and delivery being herein called the “"Closing Time”"). In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates for, such Option Securities shall be made at the above-mentioned offices of Xxxxxxxx Chance US LLP, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, on each Date of Delivery as specified in the notice from the Representatives to the Company. Payment for the Underwritten Securities shall be made to the Company or the Operating Partnership, as the case may be, Trust by wire transfer of immediately available same day funds to a bank an account designated by the Company or the Operating Partnership, as the case may beTrust, against delivery to the Representatives Representative for the respective accounts of the Underwriters of certificates for the Underwritten Preferred Securities to be purchased by them. Certificates for the Underwritten Securities and the Option Securities, if any, shall be in such denominations and registered in such names as the Representatives may request in writing at least two business days before At the Closing Time the Trust shall deliver the Preferred Securities to the Representative through the facility of The Depository Trust Company for the account of each Underwriter against payment to or upon the relevant Date order of Delivery, as the case may beTrust of the purchase price. It is understood that each Underwriter has authorized the RepresentativesRepresentative, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Underwritten Preferred Securities and the Option Securities, if any, which it has agreed to purchase. The RepresentativesXxxxxxx Xxxxx, individually and not as representatives Representative of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Underwritten Preferred Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have check has not been received by the Closing Time or the relevant Date of Delivery, as the case may beTime, but any such payment shall not relieve such Underwriter from its obligations hereunder. The certificates for the Initial Securities and the Option Securities, if any, will be made available for examination and packaging by the Representatives not later than 10:00 A.M. on the last business day prior to the Closing Time or the relevant Date of Delivery, as the case may be, in New York, New York. If authorized by the applicable Terms Agreement, the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company or the Operating Partnership, as the case may be, pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially in the form of Exhibit B hereto with such changes therein as the Company or the Operating Partnership, as the case may be, may approve. As compensation for arranging Delayed Delivery Contracts, the Company or the Operating Partnership, as the case may be, will pay to the Representatives at Closing Time, for the respective accounts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors of the types described in the Prospectus. At the applicable Closing Time, the Company will pay, or cause to be paid, the Operating Partnership, as commission payable at such time to the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount Underwriters under Section 2 hereof by wire transfer of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed same day funds to an account designated by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery ContractsRepresentative.
Appears in 1 contract
Sale and Delivery to Underwriters Closing. Retail - [
(a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on the basis of the representations and warranties herein contained and shall be subject to the terms and conditions set forth herein or in the applicable Terms Agreement.
(b) In addition, on On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company or the Operating Partnership, as the case may be, may grant, if so provided in the applicable Terms Agreement relating agrees to the Initial Underwritten Securities, an option sell to the Underwriters named in such Terms Agreementeach Underwriter, severally and not jointly, to purchase up to the number of Option Securities set forth therein at the same price per Option Security as is applicable to the Initial Underwritten Securitiesand each Underwriter, less an amount equal to any dividends or distributions declared by the Company and paid or payable on the Initial Underwritten Securities but not payable on the Option Securities. Such option, if granted, will expire 30 days (or such lesser number of days as may be specified in the applicable Terms Agreement) after the Representation Date relating to the Initial Underwritten Securities, and may be exercised in whole or in part from time to time upon notice by the Representatives to the Company or the Operating Partnership, as the case may be, setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time, date and place of payment and delivery for such Option Securities. Any such time, date and place of delivery (a “Date of Delivery”) shall be determined by the Representatives, but shall not be later than seven full business days nor earlier than two full business days after the exercise of said option, nor in any event prior to the Closing Time, unless otherwise agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be. If the option is exercised as to all or any portion of the Option Securities, each of the Underwriters, acting severally and not jointly, will agrees to purchase that proportion of from the total number of Option Securities then being purchased which Company, at the price per security set forth in Schedule II, the number of Initial Underwritten Securities each Junior Subordinated Debentures set forth in Schedule I opposite the name of such Underwriter, plus any additional number of Junior Subordinated Debentures that such Underwriter has severally agreed may become obligated to purchase pursuant to the provisions of Section 10 hereof. The Underwriters agree to make a public offering of their respective Junior Subordinated Debentures specified in Schedule I at the initial public offering price specified in Schedule II hereto. The purchase price per security to be paid by the several Underwriters for the Junior Subordinated Debentures shall be an amount equal to the initial public offering price set forth on Schedule II, which is a fixed price determined by agreement between the Representative and the Company. The Company hereby agrees to pay on the Closing Date (as defined below) to the Representative, for the accounts of the several Underwriters, a commission per Junior Subordinated Debenture as set forth in on Schedule II for the applicable Terms Agreement bears Junior Subordinated Debentures to be delivered by the Company hereunder on the Closing Date.]
(a) On the basis of the representations and warranties herein contained and subject to the total number terms and conditions herein set forth, the Company agrees to sell to each Underwriter, severally and not jointly, and each Underwriter, severally and not jointly, agrees to purchase from the Company, at the price set forth in Schedule II, the principal amount of Initial Underwritten Securities (except as otherwise provided Junior Subordinated Debentures set forth in Schedule I opposite the applicable Terms Agreement)name of such Underwriter, subject plus any additional principal amount of Junior Subordinated Debentures that such Underwriter may become obligated to such adjustments as purchase pursuant to the Representatives provisions of Section 10 hereof. The Underwriters agree to make a public offering of their respective Junior Subordinated Debentures specified in their discretion Schedule I at the initial price to public specified in Schedule II hereto. The purchase price per security to be paid by the several Underwriters for the Junior Subordinated Debentures shall make be an amount equal to eliminate any sales or purchases of fractional Underwritten Securitiesthe initial public offering price set forth on Schedule II, which is a fixed price determined by agreement between the Representative and the Company.]
(cb) Payment of the purchase price for, and delivery of certificates for, the Initial Underwritten Securities to be purchased by the Underwriters Junior Subordinated Debentures shall be made at the offices of Xxxxxxxx Chance US LLPHunton & Xxxxxxxx, 00 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as shall be agreed upon by the Representatives Representative and the Company or the Operating Partnership, as the case may beCompany, at 10:00 A.M. A.M., New York City time, on the fourth business day (or the third business day if required under Rule 15c6-1 of the 1934 Act, or (unless postponed in accordance with the provisions of Section 10) following the date after execution of the applicable Terms this Agreement or at such other time time, place or date as shall be agreed upon by the Representatives Representative and the Company (such time and date of payment and delivery being herein called the “"Closing Time”Date"). In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates for, such Option Securities shall be made at the above-mentioned offices of Xxxxxxxx Chance US LLP, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, on each Date of Delivery as specified in the notice from the Representatives to the Company. Payment for the Underwritten Securities shall be made to the Company or the Operating Partnership, as the case may be, by wire transfer of immediately available funds to a bank account designated by the Company or the Operating Partnership, as the case may befunds, against delivery of the Junior Subordinated Debentures, in fully registered form, to you or upon your order. The Junior Subordinated Debentures shall be delivered in the form of a certificated global security in denominations equal to the Representatives for the respective accounts aggregate principal amount of the Underwriters of the Underwritten Securities to be purchased by them. Certificates for the Underwritten Securities and the Option Securities, if any, shall be in such denominations Junior Subordinated Debentures upon original issuance and registered in such names as the Representatives may request in writing at least two business days before the Closing Time or the relevant Date name of DeliveryCede & Co., as the case may benominee for The Depository Trust Company. It is understood that each Underwriter has authorized the RepresentativesRepresentative, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Underwritten Securities and the Option Securities, if any, Junior Subordinated Debentures which it has agreed to purchase. The RepresentativesRepresentative, individually and not as representatives Representative of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Underwritten Securities or the Option Securities, if any, Junior Subordinated Debentures to be purchased by any Underwriter whose funds have check has not been received by the Closing Time or the relevant Date of Delivery, as the case may beDate, but any such payment shall not relieve such Underwriter from its obligations hereunder. The certificates certificate(s) for the Initial Securities and the Option Securities, if any, Junior Subordinated Debentures will be made available for examination and packaging by the Representatives Representative not later than 10:00 A.M. 12:00 Noon, New York City time, on the last business day prior to the Closing Time or the relevant Date of Delivery, as the case may be, in New York, New York. If authorized by the applicable Terms Agreement, the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company or the Operating Partnership, as the case may be, pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially in the form of Exhibit B hereto with such changes therein as the Company or the Operating Partnership, as the case may be, may approve. As compensation for arranging Delayed Delivery Contracts, the Company or the Operating Partnership, as the case may be, will pay to the Representatives at Closing Time, for the respective accounts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors of the types described in the Prospectus. At the applicable Closing Time, the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery ContractsDate.
Appears in 1 contract
Samples: Underwriting Agreement (Virginia Electric & Power Co)
Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on the basis of the representations and warranties herein contained and shall be subject to the terms and conditions set forth herein or in the applicable Terms Agreement.
(b) In addition, on On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company or the Operating Partnership, as the case may be, may grant, if so provided in the applicable Terms Agreement relating agrees to the Initial Underwritten Securities, an option sell to the Underwriters named in such Terms Agreementeach Underwriter, severally and not jointly, to purchase up to the number of Option Securities set forth therein at the same price per Option Security as is applicable to the Initial Underwritten Securitiesand each Underwriter, less an amount equal to any dividends or distributions declared by the Company and paid or payable on the Initial Underwritten Securities but not payable on the Option Securities. Such option, if granted, will expire 30 days (or such lesser number of days as may be specified in the applicable Terms Agreement) after the Representation Date relating to the Initial Underwritten Securities, and may be exercised in whole or in part from time to time upon notice by the Representatives to the Company or the Operating Partnership, as the case may be, setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time, date and place of payment and delivery for such Option Securities. Any such time, date and place of delivery (a “Date of Delivery”) shall be determined by the Representatives, but shall not be later than seven full business days nor earlier than two full business days after the exercise of said option, nor in any event prior to the Closing Time, unless otherwise agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be. If the option is exercised as to all or any portion of the Option Securities, each of the Underwriters, acting severally and not jointly, will agrees to purchase that proportion from the Company, the aggregate principal amount of Securities set forth opposite their names on Schedule A at a purchase price of 98.887% of the total number principal amount thereof, plus any additional principal amount of Option Securities then being purchased which the number of Initial Underwritten Securities each such Underwriter has severally agreed may become obligated to purchase as set forth in the applicable Terms Agreement bears pursuant to the total number provisions of Initial Underwritten Securities (except as otherwise provided in the applicable Terms Agreement), subject to such adjustments as the Representatives in their discretion shall make to eliminate any sales or purchases of fractional Underwritten SecuritiesSection 10 hereof.
(cb) Payment of the purchase price for, and delivery of certificates for, the Initial Underwritten Securities to be purchased by the Underwriters shall be made at the offices office of Xxxxxxxx Chance US Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, 00 Xxxx 00xx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, 00000 or at such other place as shall be agreed upon by the Representatives you and the Company or the Operating Partnership, as the case may beCompany, at 10:00 A.M. 7:00 a.m., California time, on the fourth business day (or the third business day if required under Rule 15c6-1 of the 1934 ActFebruary 21, 2014, or unless postponed in accordance with the provisions of Section 10) following the date of the applicable Terms Agreement or at such other time not later than ten business days after such date as shall be agreed upon by the Representatives and the Company (such time and date of payment and delivery being herein called the “Closing Time”). In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates for, such Option Securities shall be made at the above-mentioned offices of Xxxxxxxx Chance US LLP, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, on each Date of Delivery as specified in the notice from the Representatives to the Company. Payment for the Underwritten Securities shall be made to the Company or the Operating Partnership, as the case may be, by wire transfer of immediately available funds to a bank account designated by the Company or the Operating Partnership, as the case may be, against delivery to the Representatives for the respective accounts of the Underwriters of certificates for the Underwritten Securities to be purchased by them. Certificates for the Underwritten Securities and the Option Securities, if any, shall be in such denominations and registered in such names as the Representatives may request in writing at least two one business days day before the Closing Time or the relevant Date of Delivery, as the case may beTime. It is understood that each Underwriter has authorized the Representatives, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Underwritten Securities and the Option Securities, if any, which it such Underwriter has agreed to purchase. The RepresentativesXxxxx Fargo Securities, LLC, individually and not as representatives representative of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Underwritten Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have check has not been received by the Closing Time or the relevant Date of Delivery, as the case may beTime, but any such payment shall not relieve release such Underwriter from its obligations hereunder. The certificates for the Initial Securities and the Option Securities, if any, will be made available for examination and packaging by the Representatives not later than 10:00 A.M. a.m. on the last business day prior to the Closing Time or the relevant Date of Delivery, as the case may be, in New York, New York. If authorized by the applicable Terms Agreement, the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company or the Operating Partnership, as the case may be, pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially in the form of Exhibit B hereto with such changes therein as the Company or the Operating Partnership, as the case may be, may approve. As compensation for arranging Delayed Delivery Contracts, the Company or the Operating Partnership, as the case may be, will pay to the Representatives at Closing Time, for the respective accounts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors of the types described in the Prospectus. At the applicable Closing Time, the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery Contracts.
Appears in 1 contract
Samples: Underwriting Agreement (Hcp, Inc.)
Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on On the basis of the representations and warranties herein contained and shall be subject to the terms and conditions herein set forth, the Offerors agree to sell to each Underwriter, and each Underwriter severally and not jointly, agrees to purchase from the Offerors, at the price per security set forth herein or in the applicable Terms Pricing Agreement, the number of Initial Securities set forth in Schedule A hereto opposite the name of such Underwriter, plus any additional number of Initial Securities which such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereof.
(1) If the Offerors have elected not to rely upon Rule 430A of the 1933 Act Regulations, the initial public offering price per Security and the purchase price per Security to be paid by the several Underwriters for the Securities have each been determined and set forth in the Pricing Agreement, dated the date hereof, and any necessary amendments to the Registration Statement and the Prospectus will be filed before the Registration Statement becomes effective.
(2) If the Offerors have elected to rely upon Rule 430A of the 1933 Act Regulations, the purchase price per Security to be paid by the several Underwriters shall be an amount equal to the initial public offering price per Security, less an amount per Security to be determined by agreement between the Underwriters and the Offerors. The initial public offering price per Security shall be a fixed price to be determined by agreement between the Underwriters and the Offerors. The initial public offering price and the purchase price, when so determined, shall be set forth in the Pricing Agreement. In the event that such prices have not been agreed upon and the Pricing Agreement has not been executed and delivered by all parties thereto by the close of business on the fourth business day following the date of this Agreement, this Agreement shall terminate forthwith, without liability of any party to any other party, unless otherwise agreed to by the Offerors and the Underwriters.
(b) In addition, on the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company or the Operating Partnership, as the case may be, may grant, if so provided in the applicable Terms Agreement relating Offerors hereby grant to the Initial Underwritten Securities, an option to the Underwriters named in such Terms AgreementUnderwriters, severally and not jointly, the right to purchase at their election up to the number of 345,000 Option Securities at the price per share set forth therein in the Pricing Agreement. The option hereby granted will expire automatically at the same price per Option Security as is applicable to the Initial Underwritten Securities, less an amount equal to any dividends or distributions declared by the Company and paid or payable close of business on the Initial Underwritten Securities but not payable on 30th calendar day after (i) the Option Securities. Such optionlater of the date the Registration Statement and any Rule 462(b) Registration Statement becomes effective, if grantedthe Offerors have elected not to rely upon Rule 430A under the 1933 Act Regulations, will expire 30 days or (or such lesser number of days as may be specified in the applicable Terms Agreementii) after the Representation Date relating Date, if the Offerors have elected to rely upon Rule 430A under the Initial Underwritten Securities1933 Act Regulations, and may be exercised in whole or in part from time to time only for the purpose of covering over-allotments which may be made in connection with the offering and distribution of the Initial Securities upon notice by the Representatives Underwriters to the Company or the Operating Partnership, as the case may be, Offerors setting forth the aggregate number of Option additional Optional Securities as to which the several Underwriters are then exercising the option be purchased and the time, time and date and place of payment and delivery for such the related Option Securities. Any such time, time and date and place of delivery (a “"Date of Delivery”") shall be determined by the Representatives, Underwriters but shall not be later than seven full business days nor earlier than two full business days after the exercise of said such option, nor in any event prior to before the Closing Time, unless otherwise agreed upon by the Representatives Underwriters and the Company or the Operating Partnership, as the case may beOfferors. If the option is exercised as to all or any portion of the Option Securities, each of the Underwriters, acting severally and not jointly, will purchase that proportion from the Company the same percentage of the total number of Option Securities then being purchased which the number of Initial Underwritten Securities each as such Underwriter has severally agreed to purchase is purchasing of the Initial Securities as set forth in the applicable Terms Agreement bears to the total number of Initial Underwritten Securities Schedule A hereto (except as otherwise provided subject in the applicable Terms Agreement), subject each case to such adjustments as the Representatives in their discretion shall make to eliminate any sales or purchases of fractional Underwritten Option Securities).
(c) Payment The Preferred Securities underlying the Securities will be pledged with the Collateral Agent to secure the holders' obligations to purchase Common Stock under the Purchase Contracts. Such pledge shall be effected by the transfer to the Collateral Agent of the purchase price for, and delivery of certificates for, the Initial Underwritten Preferred Securities to be purchased by pledged at the Underwriters Closing Time and appropriate Date of Delivery, if any, in accordance with the Pledge Agreement.
(d) Delivery of certificates for the Initial Securities and the Option Securities (if the option provided for in Section 2(b) hereof shall have been exercised on or before the first business day prior to the Closing Time) shall be made at the offices of Xxxxxxxx Chance US LLPthe Underwriters in New York, 00 against the delivery to the Collateral Agent of the Preferred Securities relating to such Securities by such Underwriters or on their behalf, and payment of the purchase price for such Securities shall be made at the offices of LeBoeuf, Lamb, Greexx & XacRxx, X.L.P, 125 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 0000000000 xx at such other place as shall be agreed upon by the Underwriters and the Offerors, at 10:00 a.m. (New York time) on the third business day after the date the Registration Statement becomes effective (or, if the Offerors have elected to rely upon Rule 430A, the third full business day after execution of the Pricing Agreement (or, if pricing of the Securities occurs after 4:30 p.m., Eastern time, on the fourth full business day thereafter)), or such other time not later than ten business days after such date as shall be agreed upon by the Underwriters and the Offerors (such time and date of payment and delivery being referred to herein as the "Closing Time"). Payment for the Securities purchased by the Underwriters shall be made by wire transfer of immediately available funds, payable to the Company, against delivery to the respective accounts of the Underwriters of the Securities to be purchased by it. Delivery of, and payment for, the Securities shall be made through the facilities of the Depository Trust Company. In addition, if the Underwriters purchase any or all of the Option Securities, payment of the purchase price and delivery of certificates for such Option Securities shall be made at the offices of LeBoeuf, Lamb, Greexx & XacRxx, X.L.P. set forth above, or at such other place as shall be agreed upon by the Representatives Underwriters and the Company or the Operating Partnership, as the case may be, at 10:00 A.M. on the fourth business day (or the third business day if required under Rule 15c6-1 of the 1934 Act, or unless postponed in accordance with the provisions of Section 10) following the date of the applicable Terms Agreement or at such other time as shall be agreed upon by the Representatives and the Company (such time and date of payment and delivery being herein called the “Closing Time”). In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates for, such Option Securities shall be made at the above-mentioned offices of Xxxxxxxx Chance US LLP, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may beOfferors, on each Date of Delivery as specified in the relevant notice from the Representatives Underwriters to the Company. Payment for the Underwritten Securities shall be made to the Company or the Operating Partnership, as the case may be, by wire transfer of immediately available funds to a bank account designated by the Company or the Operating Partnership, as the case may be, against delivery to the Representatives for the respective accounts of the Underwriters of the Underwritten Securities to be purchased by themOfferors. Certificates for the Underwritten Initial Securities and the Option Securities, if any, shall be in such denominations and registered in such names as the Representatives Underwriters may request in writing at least two full business days before the Closing Time or the relevant any Date of Delivery, as the case may be. It is understood that each Underwriter has authorized the RepresentativesMerrxxx Xxxcx, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Underwritten Securities and the Option Securities, if any, which it has agreed to purchase. The Representatives, individually xxdividually and not as representatives representative of the Underwriters, may (but not shall not be obligated to) make payment of the purchase price for the Underwritten Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have not been received by the Closing Time Time, or the relevant Date of Delivery, as the case may be, but any such payment shall not relieve such Underwriter from its obligations hereunder. The certificates for the Initial Securities and the Option Securities, if any, will be made available for examination and packaging by the Representatives not Underwriters no later than 10:00 A.M. a.m. (New York City time) on the last business day prior to the Closing Time or the relevant Date of Delivery, as the case may be, in New York, New York. .
(e) If authorized by the applicable Terms Agreement, the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company or the Operating Partnership, as the case may be, pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially in the form of Exhibit B hereto with such changes therein as the Company or the Operating Partnership, as the case may be, may approve. As compensation for arranging Delayed Delivery Contracts, the Company or the Operating Partnership, as the case may be, will pay to the Representatives at Closing Time, settlement for the respective accounts of Option Securities occurs after the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors of the types described in the Prospectus. At the applicable Closing Time, the Company or the Operating Partnership, as the case may be, Offerors will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by deliver to the Underwriters and previously approved by on the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount relevant Date of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of themDelivery, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, obligations of the names Underwriters to purchase the Option Securities shall be conditioned upon the receipt of, supplemental opinions, certificates and letters confirming as of such date the institutions with which opinions, certificates and letters delivered at the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters Closing Time pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery ContractsSection 5(k) hereof.
Appears in 1 contract
Samples: Underwriting Agreement (MCN Corp)
Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on On the basis of the representations and warranties herein contained and shall be subject to the terms and conditions herein set forth, the Company agrees to sell to each Underwriter, severally and not jointly, and each Underwriter, severally and not jointly, agrees to purchase from the Company, at $24.2125 per share, the number of Initial Securities set forth herein or in Schedule A hereto opposite the applicable Terms Agreementname of such Underwriter, plus any additional number of Securities which such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereof.
(b) In addition, on the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company or the Operating Partnership, as the case may be, may grant, if so provided in the applicable Terms Agreement relating to the Initial Underwritten Securities, hereby grants an option to the Underwriters named in such Terms AgreementUnderwriters, severally and not jointly, to purchase up to an additional 750,000 shares of Series B Preferred Stock at the number of Option Securities price per share set forth therein at the same price per Option Security as is applicable to the Initial Underwritten Securities, less an amount equal to any dividends or distributions declared by the Company and paid or payable on the Initial Underwritten Securities but not payable on the Option Securitiesin paragraph (a) above. Such option, if granted, The option hereby granted will expire 30 days (or such lesser number of days as may be specified in the applicable Terms Agreement) after the Representation Date relating to the Initial Underwritten SecuritiesDate, and may be exercised in whole or in part from time to time only for the purpose of covering over-allotments which may be made in connection with the offering and distribution of the Initial Securities upon notice by the Representatives Underwriters to the Company or the Operating Partnership, as the case may be, setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time, date and place of payment and delivery for such Option Securities. Any such time, time and date and place of delivery (a “"Date of Delivery”") shall be determined by the RepresentativesUnderwriters, but shall not be later than seven full business days nor earlier than two full business days after the exercise of said option, nor in any event prior to the Closing Time, as hereinafter defined, unless otherwise agreed upon by the Representatives Underwriters and the Company or the Operating Partnership, as the case may beCompany. If the option is exercised as to all or any portion of the Option Securities, each of the Underwriters, acting severally and not jointly, will purchase that proportion of the total number of Option Securities then being purchased which the number of Initial Underwritten Securities each such Underwriter has severally agreed to purchase as set forth in Schedule A opposite the applicable Terms Agreement name of such Underwriter bears to the total number of Initial Underwritten Securities (except as otherwise provided in the applicable Terms Agreement)Securities, subject in each case to such adjustments as the Representatives Underwriters in their discretion shall make to eliminate any sales or purchases of fractional Underwritten Securities.
(c) Payment of the purchase price for, and delivery of certificates for, the Initial Underwritten Securities to be purchased by the Underwriters shall be made at the offices office of Xxxxxxxx Chance US LLPXxxxxx & Xxxxxxx, 00 000 Xxxx 00xx Xxxxx Xxxxxx, Xxx XxxxXxxxx 0000, Xxx Xxxx Xxxxxxx, Xxxxxxxxxx 00000-0000, or at such other place as shall be agreed upon by the Representatives Underwriters and the Company or the Operating Partnership, as the case may beCompany, at 10:00 A.M. 7:00 A.M., Los Angeles time, on the fourth business day September 4, 1998 (or the third business day if required under Rule 15c6-1 of the 1934 Act, or unless postponed in accordance with the provisions of Section 10) following the date of the applicable Terms Agreement 10 hereof), or at such other time not later than ten business days after such date as shall be agreed upon by the Representatives Underwriters and the Company (such time and date of payment and delivery being herein called the “"Closing Time”"). In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, for and delivery of certificates for, for such Option Securities shall be made at the above-mentioned offices office of Xxxxxxxx Chance US LLPXxxxxx & Xxxxxxx, or at such other place as shall be mutually agreed upon by the Representatives Underwriters and the Company or the Operating Partnership, as the case may beCompany, on each Date of Delivery as specified in the notice from the Representatives Underwriters to the Company. Payment for the Underwritten Securities shall be made to the Company or the Operating Partnership, as the case may be, by wire transfer of immediately available funds to a bank account designated by the Company or the Operating Partnership, as the case may be, against delivery to the Representatives Underwriters of certificates for the respective accounts of the Underwriters of the Underwritten Securities to be purchased by themthe Underwriters. Certificates for the Underwritten Initial Securities and the Option Securities, if any, Securities shall be in such denominations and registered in such names as the Representatives Underwriters may request in writing at least two one business days day before the Closing Time or the relevant Date of Delivery, as the case may be. It is understood that each Underwriter other xxxx Xxxxxxx Xxxxx has authorized the RepresentativesXxxxxxx Xxxxx, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Underwritten Securities and the Option Securities, if any, which it has agreed to purchase. The RepresentativesXxxxxxx Xxxxx, individually and not as representatives representative of the Underwriters, may (but shall not be obligated to) make payment to the Company on behalf of the purchase price any Underwriter or Underwriters for the Underwritten Securities or the Option Securities, if any, to be purchased by any such Underwriter whose funds have not been received by the Closing Time or the relevant Date of Delivery, as the case may beUnderwriters, but any such payment shall not relieve such Underwriter or Underwriters from its obligations hereunder. The certificates for the Initial Securities and the Option Securities, if any, will be made available for examination and packaging by the Representatives Underwriters not later than 10:00 A.M. on the last business day prior to the Closing Time or the relevant Date of Delivery, as the case may be, be in New York, New York. If authorized by the applicable Terms Agreement, the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company or the Operating Partnership, as the case may be, pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially in the form of Exhibit B hereto with such changes therein as the Company or the Operating Partnership, as the case may be, may approve. As compensation for arranging Delayed Delivery Contracts, the Company or the Operating Partnership, as the case may be, will pay to the Representatives at Closing Time, for the respective accounts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors of the types described in the Prospectus. At the applicable Closing Time, the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery Contracts.
Appears in 1 contract
Samples: Purchase Agreement (Health Care Property Investors Inc)
Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on the basis of the representations and warranties herein contained and shall be subject to the terms and conditions set forth herein or in the applicable Terms Agreement.
(b) In addition, on a. On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth:
(i) the Forward Seller agrees to sell to each Underwriter, and each Underwriter agrees to purchase from the Company or the Operating Partnership, as the case may be, may grant, if so provided in the applicable Terms Agreement relating to the Initial Underwritten Securities, an option to the Underwriters named in such Terms AgreementForward Seller, severally and not jointly, the respective number of Borrowed Firm Securities set forth opposite its name in Exhibit A hereto plus any additional number of Borrowed Firm Securities which such Underwriter may become obligated to purchase up pursuant to the provisions of Section 10 hereof, subject to such adjustments among the Underwriters as the Representatives in their sole discretion shall make to eliminate any sales or purchases of fractional Securities, in each case pertaining to the relevant Forward Seller and at a purchase price of $90.016 per share (the “Purchase Price”);
(ii) the Company agrees to sell to the Underwriters, and each Underwriter, severally not jointly, agrees to purchase from the Company, at the Purchase Price, a number of Company Top-Up Firm Securities, if any, that bears the same proportion to the total number of Company Top-Up Firm Securities as the number of Option Borrowed Firm Securities set forth therein on Exhibit A opposite the name of such Underwriter bears to the total number of Borrowed Firm Securities on such Schedule.
(iii) The Company hereby grants an option to the Underwriters to purchase pursuant to clause (iv) or clause (v) below, as applicable, all or any portion of the Option Securities at the same a price per Option Security as is applicable share equal to the Initial Underwritten Securities, less Purchase Price referred to in Section 2(a) above; provided that the price per share for any Option Securities shall be reduced by an amount per share equal to any dividends or distributions declared declared, paid or payable by the Company and paid or payable on the Initial Underwritten Firm Securities but not payable on such Option Securities (such price, the “Option SecuritiesPurchase Price”). Such option, if granted, The option hereby granted will expire 30 days at 11:59 P.M. (or such lesser number of days as may be specified in New York City time) on the applicable Terms Agreement) 30th day after the Representation Date relating to the Initial Underwritten Securities, date hereof and may be exercised in whole or in part from time to time upon written notice by the Representatives (each an “Option Notice”) to the Company or and the Operating Partnership, as the case may be, setting Forward Seller. Any such Option Notice shall set forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time, time and date and place of payment and delivery for such Option Securities. Any such timeSecurities (each an “Option Closing Date”), which may be the same date and place of delivery time as the First Closing Date (a “Date of Delivery”as hereinafter defined) shall be determined by the Representatives, but shall not be later than seven (7) full business days nor earlier than two full business days Business Days (as defined below) after the exercise date of said optionsuch notice (unless postponed in accordance with the provisions of Section 10 hereof), nor in any event prior to the Closing Time, unless otherwise agreed upon by the Representatives and the Company or the Operating Partnership, as the case may beDate. If the option is exercised as to all or any portion of the Option Securities, each of the Underwriters, acting severally and not jointly, will purchase that proportion of the total number of Option Securities then being purchased which the number of Initial Underwritten Borrowed Firm Securities each such Underwriter has severally agreed to purchase as set forth in Exhibit A hereto opposite the applicable Terms Agreement name of such Underwriter, plus any additional number of Securities that such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereof, bears to the total number of Initial Underwritten Securities (except as otherwise provided in the applicable Terms Agreement)Borrowed Firm Securities, subject in each case to such adjustments as the Representatives in their discretion shall make to eliminate any sales or purchases of fractional Underwritten Securitiesshares.
(civ) Payment The Company may, in its sole discretion, within one (1) Business Day after such Option Notice is given, execute and deliver to the Forward Purchaser an additional forward sale agreement substantially in the form attached hereto as Exhibit F, between the Company and the Forward Purchaser (each, an “Additional Forward Sale Agreement”), providing for the forward sale by the Company, subject to the Company’s right to elect Cash Settlement or Net Share Settlement (as such terms are defined in such Additional Forward Sale Agreement), of a number of shares of Common Stock equal to the purchase price for, and delivery aggregate number of certificates for, the Initial Underwritten Option Securities to be being purchased by the Underwriters from the Forward Seller pursuant to such exercise of the Option. Upon the Company’s execution and delivery to the Forward Purchaser of any Additional Forward Sale Agreement, the Forward Purchaser shall be made at promptly execute and deliver such Additional Forward Sale Agreement to the offices of Xxxxxxxx Chance US LLPCompany, 00 Xxxx 00xx Xxxxxxand upon such execution and delivery to the Company, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, at 10:00 A.M. on the fourth business day (or the third business day if required under Rule 15c6-1 basis of the 1934 Actrepresentations, or unless postponed in accordance warranties and agreements set forth herein, and subject to the conditions set forth herein, (x) the Forward Seller (with the provisions of Section 10respect to any Borrowed Option Securities) following the date of the applicable Terms Agreement or at such other time as shall be agreed upon by the Representatives and the Company (such time and date of payment and delivery being herein called the “Closing Time”). In addition, in the event that any or all of the Option Securities are purchased by hereby agrees to sell to the Underwriters, payment and the Underwriters shall purchase from the Forward Seller, severally and not jointly, the number of Option Securities as set forth in the purchase price forrelevant Option Notice at the Option Purchase Price (with each such Underwriter purchasing the number of Option Securities (subject to adjustments to eliminate fractional shares as the Underwriters may determine) that bears the same proportion to the total number of Option Securities as the number of Borrowed Firm Securities set forth on Schedule II opposite the name of such Underwriter bears to the total number of Borrowed Firm Securities on such Schedule) and (y) the Company hereby agrees to sell to the Underwriters, and delivery of certificates forthe Underwriters shall purchase from the Company, such Option Securities shall be made at the above-mentioned offices of Xxxxxxxx Chance US LLPseverally and not jointly, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, on each Date of Delivery as specified in the notice from the Representatives to the Company. Payment for the Underwritten Securities shall be made to the Company or the Operating Partnership, as the case may be, by wire transfer of immediately available funds to a bank account designated by the Company or the Operating Partnership, as the case may be, against delivery to the Representatives for the respective accounts of the Underwriters of the Underwritten Securities to be purchased by them. Certificates for the Underwritten Securities and the Top-Up Option Securities, if any, shall be in any (with each such denominations and registered in such names Underwriter purchasing the number of Company Top-Up Option Securities (subject to adjustments to eliminate fractional shares as the Representatives Underwriters may request in writing at least two business days before determine) that bears the Closing Time or same proportion to the relevant Date total number of Delivery, Company Top-Up Option Securities as the case may be. It is understood that each number of Borrowed Firm Securities set forth on Schedule II opposite the name of such Underwriter has authorized bears to the Representativestotal number of Borrowed Firm Securities on such Schedule).
(v) If the Company does not timely execute and deliver the Additional Forward Sale Agreement pursuant to clause (iv) above, for its account, to accept delivery of, receipt forthen on the basis of the representations and warranties contained in this Agreement, and make payment of subject to the purchase price forterms and conditions stated herein, the Underwritten Securities and the Option Securities, if any, which it has agreed Company hereby agrees to purchase. The Representatives, individually and not as representatives of sell to the Underwriters, may (but and the Underwriters shall purchase from the Company, severally and not be obligated to) make payment of the purchase price for the Underwritten Securities or jointly, at the Option Securities, if any, to be purchased by any Underwriter whose funds have not been received by the Closing Time or the relevant Date of Delivery, as the case may be, but any such payment shall not relieve such Underwriter from its obligations hereunder. The certificates for the Initial Securities and the Option Securities, if any, will be made available for examination and packaging by the Representatives not later than 10:00 A.M. on the last business day prior to the Closing Time or the relevant Date of Delivery, as the case may be, in New York, New York. If authorized by the applicable Terms AgreementPurchase Price, the Underwriters named therein may solicit offers to purchase Underwritten number of Option Securities from the Company or the Operating Partnership, as the case may be, pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially in the form of Exhibit B hereto with such changes therein as the Company or the Operating Partnership, as the case may be, may approve. As compensation for arranging Delayed Delivery Contracts, the Company or the Operating Partnership, as the case may be, will pay to the Representatives at Closing Time, for the respective accounts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors of the types described in the Prospectus. At the applicable Closing Time, the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives relevant Option Notice (with each such Underwriter purchasing the number of Option Securities (subject to adjustments to eliminate fractional shares as the Underwriters may determine) that bears the same proportion to the Company or the Operating Partnership, total number of Option Securities as the case may be; provided, however, that number of Borrowed Firm Securities set forth on Schedule II opposite the name of such Underwriter bears to the total amount number of Underwritten Borrowed Firm Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery Contractson such Schedule).
Appears in 1 contract
Samples: Underwriting Agreement (Idacorp Inc)
Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on the basis of the representations and warranties herein contained and shall be subject to the terms and conditions set forth herein or in the applicable Terms Agreement.
(b) In addition, on On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company or the Operating PartnershipTrust agrees to sell to each Underwriter, as the case may be, may grant, if so provided in the applicable Terms Agreement relating to the Initial Underwritten Securities, an option to the Underwriters named in such Terms Agreementand each Underwriter, severally and not jointly, agrees to purchase up to from the number of Option Securities set forth therein Trust, at the same price per Option Security as is applicable to the Initial Underwritten Securities, less an amount equal to any dividends or distributions declared by the Company and paid or payable on the Initial Underwritten Securities but not payable on the Option Securities. Such option, if granted, will expire 30 days (or such lesser number of days as may be specified in the applicable Terms Agreement) after the Representation Date relating to the Initial Underwritten Securities, and may be exercised in whole or in part from time to time upon notice by the Representatives to the Company or the Operating Partnership, as the case may be, setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time, date and place of payment and delivery for such Option Securities. Any such time, date and place of delivery (a “Date of Delivery”) shall be determined by the Representatives, but shall not be later than seven full business days nor earlier than two full business days after the exercise of said option, nor in any event prior to the Closing Time, unless otherwise agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be. If the option is exercised as to all or any portion of the Option Securities, each of the Underwriters, acting severally and not jointly, will purchase that proportion of the total number of Option Securities then being purchased which the number of Initial Underwritten Securities each such Underwriter has severally agreed to purchase as security set forth in the applicable Terms Agreement bears Pricing Agreement, the number of Preferred Securities set forth in Schedule A hereto opposite the name of such Underwriter, plus any additional number of Preferred Securities which such Underwriter may become obligated to purchase pursuant to the total number provisions of Initial Underwritten Section 10 hereof.
(b) As compensation to the Underwriters for their commitments hereunder and in view of the fact that the proceeds of the sale of the Securities (except will be used to purchase the Subordinated Debt Securities of the Company, the Company hereby agrees to pay to the Representatives, for the accounts of the several Underwriters, a commission per security set forth in Schedule B as otherwise provided in compensation to the applicable Terms Underwriters for their commitments under this Agreement), subject to such adjustments as the Representatives in their discretion shall make to eliminate any sales or purchases of fractional Underwritten Securities.
(c) Payment of the purchase price for, and delivery Delivery of certificates for, for the Initial Underwritten Securities to be purchased by the Underwriters shall be made at the offices of Xxxxxxxx Chance US LLPthe Underwriters in New York, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and payment of the purchase price for the Securities shall be made at the offices of _______________________ or at such other place as shall be agreed upon by the Representatives Underwriters and the Company or the Operating Partnership, as the case may beOfferors, at 10:00 A.M. a.m. (New York time) on the fourth business day (or the third business day if required under Rule 15c6-1 after execution of the 1934 ActPricing Agreement (or, if pricing of the Securities occurs after 4:30 p.m. Eastern time, on the fourth full business day thereafter)), or unless postponed in accordance with the provisions of Section 10) following the date of the applicable Terms Agreement or at such other time not later than ten business days after such date as shall be agreed upon by the Representatives Underwriters and the Company Offerors (such time and date of payment and delivery being herein called the “"Closing Time”"). In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates for, such Option Securities shall be made at the above-mentioned offices of Xxxxxxxx Chance US LLP, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, on each Date of Delivery as specified in the notice from the Representatives to the Company. Payment for the Underwritten Preferred Securities purchased by the Underwriters shall be made to the Company or the Operating Partnership, as the case may be, Trust by wire transfer of immediately available funds funds, payable to a bank account designated by the Company or the Operating Partnership, as the case may beTrust, against delivery to the Representatives for the respective accounts of the Underwriters of certificates for the Underwritten Preferred Securities to be purchased by themit. Certificates for the Underwritten Preferred Securities and the Option Securities, if any, shall be in such denominations and registered in such names as the Representatives Underwriters may request in writing at least two full business days before the Closing Time or the relevant Date of Delivery, as the case may beTime. It is understood that each Underwriter has authorized the Representatives, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Underwritten Securities and the Option Securities, if any, which it has agreed to purchase. The RepresentativesXxxxxxx Xxxxx, individually and not as representatives representative of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Underwritten Securities or the Option Preferred Securities, if any, to be purchased by any Underwriter whose funds have not been received by the Closing Time or the relevant Date of Delivery, as the case may beTime, but any such payment shall not relieve such Underwriter from its obligations hereunder. At the Closing Time, the Company will pay, or cause to be paid, the commission payable at such time to the Underwriters under Section 2(b) hereof by wire transfer of immediately available funds to a bank account designated by Xxxxxxx Xxxxx. The certificates for the Initial Preferred Securities and the Option Securities, if any, will be made available for examination and packaging by the Representatives not Underwriters no later than 10:00 A.M. a.m. (New York City time) on the last business day prior to the Closing Time or the relevant Date of Delivery, as the case may be, in New York, New York. If authorized by the applicable Terms Agreement, the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company or the Operating Partnership, as the case may be, pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially in the form of Exhibit B hereto with such changes therein as the Company or the Operating Partnership, as the case may be, may approve. As compensation for arranging Delayed Delivery Contracts, the Company or the Operating Partnership, as the case may be, will pay to the Representatives at Closing Time, for the respective accounts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors of the types described in the Prospectus. At the applicable Closing Time, the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery Contracts.
Appears in 1 contract
Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on the basis of the representations and warranties herein contained and shall be subject to the terms and conditions set forth herein or in the applicable Terms Agreement.
(b) In addition, on the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company or the Operating Partnership, as the case may be, may grant, if so provided in the applicable Terms Agreement relating to the Initial Underwritten Securities, an option to the Underwriters named in such Terms Agreement, severally and not jointly, to purchase up to the number of Option Securities set forth therein at the same price per Option Security as is applicable to the Initial Underwritten Securities, less an amount equal to any dividends or distributions declared by the Company and paid or payable on the Initial Underwritten Securities but not payable on the Option Securities. Such option, if granted, will expire 30 days (or such lesser number of days as may be specified in the applicable Terms Agreement) after the Representation Date relating to the Initial Underwritten Securities, and may be exercised in whole or in part from time to time only for the purpose of covering over-allotments which may be made in connection with the offering and distribution of the Initial Underwritten Securities upon notice by the Representatives to the Company or the Operating Partnership, as the case may be, setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time, time and date and place of payment and delivery for such Option Securities. Any such time, date and place of delivery (a “"Date of Delivery”") shall be determined by the Representatives, but shall not be later than seven full business days nor earlier than two full business days after the exercise of said option, nor in any event prior to the Closing Time, unless otherwise agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be. If the option is exercised as to all or any portion of the Option Securities, each of the Underwriters, acting severally and not jointly, will purchase that proportion of the total number of Option Securities then being purchased which the number of Initial Underwritten Securities each such Underwriter has severally agreed to purchase as set forth in the applicable Terms Agreement bears to the total number of Initial Underwritten Securities (except as otherwise provided in the applicable Terms Agreement), subject to such adjustments as the Representatives in their discretion shall make to eliminate any sales or purchases of fractional Underwritten Securities.
(c) Payment of the purchase price for, and delivery of certificates for, the Initial Underwritten Securities to be purchased by the Underwriters shall be made at the offices of Xxxxxxxx Chance US LLPXxxxxx & Xxxxx, 00 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, at 10:00 A.M. on the fourth business day (or the third business day if required under Rule 15c6-1 of the 1934 Act, or unless postponed in accordance with the provisions of Section 10) following the date of the applicable Terms Agreement or at such other time as shall be agreed upon by the Representatives and the Company (such time and date of payment and delivery being each referred to herein called as the “"Closing Time”"). In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates for, such Option Securities shall be made at the above-mentioned offices of Xxxxxxxx Chance US LLPXxxxxx & Xxxxx, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, on each Date of Delivery as specified in the notice from the Representatives to the Company. Payment for the Underwritten Securities shall be made to the Company or the Operating Partnership, as the case may be, by wire transfer certified or official bank check or checks drawn in (i) New York Clearing House funds or similar next day funds, if the Underwritten Securities are either Common Stock, Preferred Stock or Depositary Shares, or (ii) Federal or similar same day funds, if the Underwritten Securities are Debt Securities, in each case payable to the order of immediately available funds to a bank account designated by the Company or the Operating Partnership, as the case may be, against delivery to the Representatives for the respective accounts of the Underwriters of certificates for the Underwritten Securities to be purchased by them. Certificates for the Underwritten Securities and the Option Securities, if any, shall be in such denominations and registered in such names as the Representatives may request in writing at least two business days before the Closing Time or the relevant Date of Delivery, as the case may be. It is understood that each Underwriter has authorized the Representatives, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Underwritten Securities and the Option Securities, if any, which it has agreed to purchase. The Representatives, individually and not as representatives of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Underwritten Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have check has not been received by the Closing Time or the relevant Date of Delivery, as the case may be, but any such payment shall not relieve such Underwriter from its obligations hereunder. The certificates for the Initial Underwritten Securities and the Option Securities, if any, will be made available for examination and packaging by the Representatives not later than 10:00 A.M. on the last business day prior to the Closing Time or the relevant Date of Delivery, as the case may be, in New York, New York. If authorized by the applicable Terms Agreement, the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company or the Operating Partnership, as the case may be, pursuant to delayed delivery contracts (“"Delayed Delivery Contracts”") substantially in the form of Exhibit B hereto with such changes therein as the Company or the Operating Partnership, as the case may be, may approve. As compensation for arranging Delayed Delivery Contracts, the Company or the Operating Partnership, as the case may be, will pay to the Representatives at Closing Time, for the respective accounts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors of the types described in the Prospectus. At the applicable Closing Time, the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery Contracts.
Appears in 1 contract
Samples: Underwriting Agreement (Duke Realty Investments Inc)
Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on the basis of the representations and warranties herein contained and shall be subject to the terms and conditions set forth herein or in the applicable Terms Agreement.
(b) In addition, on On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company or the Operating Partnership, as the case may be, may grant, if so provided in the applicable Terms Agreement relating Seller agrees to the Initial Underwritten Securities, an option sell to the Underwriters named in such Terms Agreementeach Underwriter and each Underwriter agrees, severally and not jointly, to purchase up to from the number of Option Securities Seller, the Underwritten Notes set forth therein opposite its name in the Pricing Agreement at the same price per Option Security as is applicable respective prices to the Initial Underwritten Securities, less an amount equal to any dividends or distributions declared by the Company and paid or payable on the Initial Underwritten Securities but not payable on the Option Securities. Such option, if granted, will expire 30 days (or such lesser number of days as may be specified in the applicable Terms Agreement) after the Representation Date relating to the Initial Underwritten Securities, and may be exercised in whole or in part from time to time upon notice by the Representatives to the Company or the Operating Partnership, as the case may be, setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time, date and place of payment and delivery for such Option Securities. Any such time, date and place of delivery (a “Date of Delivery”) shall be determined by agreement between the RepresentativesSeller and you, but which prices shall be set forth in the Pricing Agreement. In the event that such prices have not be later than seven full been agreed upon and the Pricing Agreement has not been executed and delivered by all parties thereto by the close of business days nor earlier than two full on the fourth business days after day following the exercise date of said optionthis Agreement, nor in this Agreement shall terminate forthwith, without liability of any event prior party to the Closing Timeany other party, unless otherwise agreed upon to by the Representatives Seller and the Company or the Operating Partnership, as the case may be. If the option is exercised as to all or any portion of the Option Securities, each of the Underwriters, acting severally and not jointly, will purchase that proportion of the total number of Option Securities then being purchased which the number of Initial Underwritten Securities each such Underwriter has severally agreed to purchase as set forth in the applicable Terms Agreement bears to the total number of Initial Underwritten Securities (except as otherwise provided in the applicable Terms Agreement), subject to such adjustments as the Representatives in their discretion shall make to eliminate any sales or purchases of fractional Underwritten Securitiesyou.
(cb) Payment of the purchase price for, and delivery of certificates forof, the Initial Underwritten Securities to be purchased by the Underwriters Notes shall be made at the offices office of Xxxxxxxx Chance US Kxxxxxxx & Exxxx LLP, 00 Xxxx 00xx Xxxxxx300 Xxxxx XxXxxxx, Xxx XxxxXxxxxxx, Xxx Xxxx XX 00000, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, Seller at 10:00 A.M. on the fourth business day (March 2, 2023 or the third business day if required under Rule 15c6-1 of the 1934 Act, or unless postponed in accordance with the provisions of Section 10) following the date of the applicable Terms Agreement or at such other time as shall be agreed upon by the Representatives and the Company Seller (such time and date of payment and delivery being herein called the “Closing Time” and such date of delivery being called the “Closing Date”). In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates for, such Option Securities Payment shall be made at the above-mentioned offices of Xxxxxxxx Chance US LLP, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, on each Date of Delivery as specified in the notice from the Representatives to the Company. Payment for the Underwritten Securities shall be made to the Company or the Operating Partnership, as the case may be, by wire transfer of immediately available Seller in same day funds to a bank account designated by the Company or the Operating Partnership, as the case may be, against delivery to the Representatives for the respective accounts of the Underwriters of the Underwritten Securities to be purchased by themNotes to, or at the direction of, the Representatives. Certificates for the The Underwritten Securities and the Option Securities, if any, Notes shall be in such denominations and registered in such names as the Representatives may request in writing at least two business days before the Closing Time or the relevant Date of Delivery, as the case may beTime. It is understood that each Underwriter has authorized the Representatives, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the The Underwritten Securities and the Option Securities, if anyNotes, which it has agreed to purchase. The Representatives, individually and not as representatives of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Underwritten Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have not been received by the Closing Time or the relevant Date of Delivery, as the case may be, but any such payment shall not relieve such Underwriter from its obligations hereunder. The certificates for the Initial Securities and the Option Securities, if anyin temporary form, will be made available for examination and packaging by the Representatives not later than 10:00 A.M. on the last business day prior to Closing Time. The Underwritten Notes will be represented initially by Underwritten Notes registered in the Closing Time or the relevant Date name of Delivery, as the case may be, in New York, New York. If authorized by the applicable Terms AgreementCede & Co., the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company or the Operating Partnership, as the case may be, pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially in the form nominee of Exhibit B hereto with such changes therein as the Company or the Operating Partnership, as the case may be, may approve. As compensation for arranging Delayed Delivery Contracts, the Company or the Operating Partnership, as the case may be, will pay to the Representatives at Closing Time, for the respective accounts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors of the types described in the Prospectus. At the applicable Closing Time, the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery ContractsDepository Trust Company.
Appears in 1 contract
Samples: Underwriting Agreement (John Deere Receivables LLC)
Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on On the basis of the representations and warranties herein contained and shall be subject to the terms and conditions herein set forth, the Company hereby agrees to sell to the Underwriters, severally and not jointly, the respective numbers of Initial Securities set forth herein opposite the name of the Company in Exhibit B hereto, and each Underwriter, severally and not jointly, agrees to purchase the respective number of Initial Securities set forth opposite the name of such Underwriter on Exhibit A hereto, plus any additional number of Initial Securities which such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereof, subject to such adjustments among the Underwriters as the Representatives in their sole discretion shall make to eliminate any sales or purchases of fractional Securities, in each case at a purchase price of $17.50 per share (the applicable Terms Agreement"Purchase Price").
(b) In addition, on the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company or the Operating Partnership, as the case may be, may grant, if so provided in the applicable Terms Agreement relating to the Initial Underwritten Securities, hereby grants an option to the Underwriters named in such Terms AgreementUnderwriters, severally and not jointly, to purchase up to the number of 525,000 Option Securities set forth therein at the same a price per Option Security as is applicable share equal to the Initial Underwritten Securities, less Purchase Price referred to in Section 2(a) above; provided that the price per share for any Option Securities shall be reduced by an amount per share equal to any dividends or distributions declared paid by the Company and paid or payable on the Initial Underwritten Securities but not payable on the such Option Securities. Such option, if granted, The option hereby granted will expire 30 days at 11:59 P.M. (or such lesser number of days as may be specified in New York City time) on the applicable Terms Agreement) 30th day after the Representation Date relating to the Initial Underwritten Securities, date hereof and may be exercised on up to three occasions in whole or in part from time to time upon notice by the Representatives to the Company or the Operating Partnership, as the case may be, setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time, time and date and place of payment and delivery for such Option Securities. Any such time, time and date and place of delivery (a “Date of Delivery”an "Option Closing Date") shall be determined by the Representatives, but shall not be later than seven full business days nor earlier than two full business days after the exercise of said option, nor in any event prior to the Closing Time, unless otherwise agreed upon by the Representatives and the Company or the Operating Partnership, as the case may beDate. If the option is exercised as to all or any portion of the Option Securities, the Company will sell to the Underwriters that proportion of the total number of Option Securities then being purchased which the number of Option Securities set forth in Section 2(b), and each of the Underwriters, acting severally and not jointly, will purchase that proportion of the total number of Option Securities then being purchased which the number of Initial Underwritten Securities each such Underwriter has severally agreed to purchase as set forth in Exhibit A opposite the applicable Terms Agreement name of such Underwriter, plus any additional number of Initial Securities which such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereof, bears to the total number of Initial Underwritten Securities (except as otherwise provided in the applicable Terms Agreement)Securities, subject in each case to such adjustments as the Representatives in their discretion shall make to eliminate any sales or purchases of fractional Underwritten Securitiesshares.
(c) Payment of the purchase price for, and delivery of certificates for, the Initial Underwritten Securities to be purchased by the Underwriters shall be made at the offices of Xxxxxxxx Chance US LLP, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may beCompany, at 10:00 A.M. (New York City time) on the fourth business day March 21, 2014 (or the third business day if required under Rule 15c6-1 of the 1934 Act, or unless postponed in accordance with the provisions of Section 10) following the date of the applicable Terms Agreement ), or at such other time not later than ten business days after such date as shall be agreed upon by the Representatives and the Company (such time and date of payment and delivery being herein called the “"Closing Time”Date"). In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates for, such Option Securities shall be made at 10:00 A.M. (New York City time) at the above-mentioned offices of Xxxxxxxx Chance US LLPoffices, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may beCompany, on each Option Closing Date of Delivery as specified in the notice from the Representatives to the Company. Payment for the Underwritten Securities shall be made to the Company or the Operating Partnership, as the case may be, by wire transfer of immediately available funds to a single bank account designated by the Company or the Operating Partnership, as the case may be, against delivery to the Representatives for the respective accounts of the Underwriters of the Underwritten Securities to be purchased by them. Certificates for the Underwritten Securities and the Option Securities, if any, shall be in such denominations and registered in such names as the Representatives may request in writing at least two business days before the Closing Time or the relevant Date of Delivery, as the case may be. It is understood that each Underwriter has authorized the Representatives, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Underwritten Initial Securities and the Option Securities, if any, which it has agreed to purchase. The Each of the Representatives, individually and not as representatives representative of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Underwritten Initial Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have not been received by the Closing Time Date or the relevant Date of DeliveryOption Closing Date, as the case may be, but any such payment shall not relieve such Underwriter from its obligations hereunder.
(d) Certificates for the Initial Securities and the Option Securities, if any, shall be in such denominations and registered in such names as the Representatives may request in writing at least one full business day before the Closing Date or the relevant Option Closing Date, as the case may be. The certificates for the Initial Securities and the Option Securities, if any, will be made available for examination and packaging by the Representatives in The City of New York not later than 10:00 A.M. noon (New York time) on the last business day prior to the Closing Time Date or the relevant Date of DeliveryOption Closing Date, as the case may be, in New York, New York. If authorized by the applicable Terms Agreement, the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company or the Operating Partnership, as the case may be, pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially in the form of Exhibit B hereto with such changes therein as the Company or the Operating Partnership, as the case may be, may approve. As compensation for arranging Delayed Delivery Contracts, the Company or the Operating Partnership, as the case may be, will pay to the Representatives at Closing Time, for the respective accounts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors of the types described in the Prospectus. At the applicable Closing Time, the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery Contracts.
Appears in 1 contract
Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities Shares pursuant to the applicable Terms Pricing Agreement shall be deemed to have been made on the basis 16 of the representations and warranties herein contained and shall be subject to the terms and conditions set forth herein or in the applicable Terms Pricing Agreement.
(b) In addition, on the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company or the Operating Partnership, as the case may be, may grant, if so provided in the applicable Terms Agreement relating to the Initial Underwritten Securities, does hereby grant an option to the Underwriters named in such Terms the Pricing Agreement, severally and not jointly, to purchase up to the number of 420,000 Option Securities set forth therein Shares at the same a price per Option Security as is applicable Share equal to the price per Initial Underwritten SecuritiesShare, less an amount equal to any dividends or distributions declared by the Company or the Property Partnerships and paid or payable on the Initial Underwritten Securities Shares but not payable on the Option SecuritiesShares. Such option, if granted, option will expire 30 days (or such lesser number of days as may be specified in the applicable Terms Agreement) after the Representation Date relating to the Initial Underwritten SecuritiesShares, and may be exercised in whole or in part from time to time only for the purpose of covering over-allotments which may be made in connection with the offering and distribution of the Initial Shares upon notice by the Representatives you to the Company or the Operating Partnership, as the case may be, setting forth the number of Option Securities Shares as to which the several Underwriters are then exercising the option and the time, date and place of payment and delivery for such Option SecuritiesShares. Any such time, time and date of payment and place of delivery (each, a “"Date of Delivery”") shall be determined by the Representativesyou, but shall not be later than seven eight full business days nor and not be earlier than two full business days after the exercise of said option, nor in any event prior to the Closing Time, unless otherwise agreed upon by the Representatives you and the Company or the Operating Partnership, as the case may bepostponed in accordance with Section 10 hereof. If the option is exercised as to all or any portion of the Option SecuritiesShares, each of the Underwriters, acting severally and not jointly, will purchase that proportion of the total number of Option Securities Shares then being purchased which the number of Initial Underwritten Securities Shares each such Underwriter has severally agreed to purchase as set forth in the applicable Terms Pricing Agreement bears to the total number of Initial Underwritten Securities (except as otherwise provided in the applicable Terms Agreement)Shares, subject to such adjustments as the Representatives you in their your discretion shall make to eliminate any sales or purchases of a fractional Underwritten Securitiesnumber of Option Shares.
(c) Payment of the purchase price for, and delivery of certificates forof, the Initial Underwritten Securities Shares to be purchased by the Underwriters shall be made at the offices of Xxxxxxxx Chance US LLPBear, 00 Steaxxx & Xo. Inc., 245 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or xx at such other place as shall be agreed upon by the Representatives you and the Company or the Operating Partnership, as the case may beCompany, at 10:00 A.M. a.m. (Eastern time) on the fourth third business day (or the third fourth business day if required under Rule 15c6-1 of the 1934 Actpricing occurs after 4:30 p.m. (New York City time) on any given business day, or unless postponed in accordance with the provisions of Section 10) following the date of the applicable Terms Agreement Pricing Agreement, or at such other time as shall be agreed upon by the Representatives you and the Company (each such time and date of payment and delivery being herein called the “a "Closing Time”"). In addition, in the event that the Underwriters have exercised their option to purchase any or all of the Option Securities are purchased by the UnderwritersShares, payment of the purchase price for, and delivery of certificates for, such Option Securities Shares, shall be made at the above-mentioned offices of Xxxxxxxx Chance US LLPBear, Steaxxx & Xo., Inc., or at such other place as shall be agreed upon by the Representatives you and the Company or the Operating Partnership, as the case may beCompany, on each the relevant Date of Delivery as specified in the notice from the Representatives you to the Company. Payment for the Underwritten Securities shall be made to the Company or the Operating Partnership, as the case may be, by wire transfer of immediately available funds payable to a bank account designated by the order of the Company or the Operating Partnership, as the case may be, against delivery to the Representatives you for the respective accounts of the Underwriters of the Underwritten Securities Shares to be purchased by them. Certificates for the Underwritten Securities and the Option Securities, if any, shall be in such denominations and registered in such names as the Representatives may request in writing at least two business days before the Closing Time or the relevant Date of Delivery, as the case may be. It is understood that each Underwriter has authorized the Representativesyou, for its account, to accept delivery 17 of, receipt for, and make payment of the purchase price forprice, for the Underwritten Securities and the Option Securities, if any, Shares which it has severally agreed to purchase. The RepresentativesYou, individually and not as representatives of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Underwritten Securities or the Option Securities, if any, Shares to be purchased by any Underwriter whose funds have check has not been received by the Closing Time or the relevant Date of Delivery, as the case may be, but any such payment shall not relieve such Underwriter from its obligations hereunder.
(d) The Shares shall be in such authorized denominations and registered in such names as you may request in writing at least two full business days prior to the applicable Closing Time or the relevant Date of Delivery, as the case may be. The certificates for the Initial Securities and the Option Securities, if any, Shares will be made available for examination and packaging by you on or before the Representatives not later than 10:00 A.M. on the last first business day prior to the Closing Time or the relevant Date of Delivery, as the case may be, in New York, New York. If authorized by the applicable Terms Agreement, the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company or the Operating Partnership, as the case may be, pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially in the form of Exhibit B hereto with such changes therein as the Company or the Operating Partnership, as the case may be, may approve. As compensation for arranging Delayed Delivery Contracts, the Company or the Operating Partnership, as the case may be, will pay to the Representatives at Closing Time, for the respective accounts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors of the types described in the Prospectus. At the applicable Closing Time, the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery Contracts.
Appears in 1 contract
Samples: Purchase Agreement (Lexington Corporate Properties Inc)
Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on the basis of the representations and warranties herein contained and shall be subject to the terms and conditions set forth herein or in the applicable Terms Agreement.
(b) In addition, on the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company or the Operating Partnership, as the case may be, may grant, if so provided in the applicable Terms Agreement relating to the Initial Underwritten Securities, an option to the Underwriters named in such Terms Agreement, severally and not jointly, to purchase up to the number of Option Securities set forth therein at the same price per Option Security as is applicable to the Initial Underwritten Securities, less an amount equal to any dividends or distributions declared by the Company and paid or payable on the Initial Underwritten Securities but not payable on the Option Securities. Such option, if granted, will expire 30 days (or such lesser number of days as may be specified in the applicable Terms Agreement) after the Representation Date relating to the Initial Underwritten Securities, and may be exercised in whole or in part from time to time only for the purpose of covering over-allotments which may be made in connection with the offering and distribution of the Initial Underwritten Securities upon notice by the Representatives to the Company or the Operating Partnership, as the case may be, setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time, date and place of payment and delivery for such Option Securities. Any such time, date and place of delivery (a “Date of Delivery”) shall be determined by the Representatives, but shall not be later than seven full business days nor earlier than two full business days after the exercise of said option, nor in any event prior to the Closing Time, unless otherwise agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be. If the option is exercised as to all or any portion of the Option Securities, each of the Underwriters, acting severally and not jointly, will purchase that proportion of the total number of Option Securities then being purchased which the number of Initial Underwritten Securities each such Underwriter has severally agreed to purchase as set forth in the applicable Terms Agreement bears to the total number of Initial Underwritten Securities (except as otherwise provided in the applicable Terms Agreement), subject to such adjustments as the Representatives in their discretion shall make to eliminate any sales or purchases of fractional Underwritten Securities.
(c) Payment of the purchase price for, and delivery of certificates for, the Initial Underwritten Securities to be purchased by the Underwriters shall be made at the offices of Xxxxxxxx Chance US LLP, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, at 10:00 A.M. on the fourth business day (or the third business day if required under Rule 15c6-1 of the 1934 Act, or unless postponed in accordance with the provisions of Section 10) following the date of the applicable Terms Agreement or at such other time as shall be agreed upon by the Representatives and the Company (such time and date of payment and delivery being herein called the “Closing Time”). In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates for, such Option Securities shall be made at the above-mentioned offices of Xxxxxxxx Chance US LLP, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, on each Date of Delivery as specified in the notice from the Representatives to the Company. Payment for the Underwritten Securities shall be made to the Company or the Operating Partnership, as the case may be, by wire transfer of immediately available funds to a bank account designated by the Company or the Operating Partnership, as the case may be, against delivery to the Representatives for the respective accounts of the Underwriters of the Underwritten Securities to be purchased by them. Certificates for the Underwritten Securities and the Option Securities, if any, shall be in such denominations and registered in such names as the Representatives may request in writing at least two business days before the Closing Time or the relevant Date of Delivery, as the case may be. It is understood that each Underwriter has authorized the Representatives, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Underwritten Securities and the Option Securities, if any, which it has agreed to purchase. The Representatives, individually and not as representatives of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Underwritten Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have not been received by the Closing Time or the relevant Date of Delivery, as the case may be, but any such payment shall not relieve such Underwriter from its obligations hereunder. The certificates for the Initial Securities and the Option Securities, if any, will be made available for examination and packaging by the Representatives not later than 10:00 A.M. on the last business day prior to the Closing Time or the relevant Date of Delivery, as the case may be, in New York, New York. If authorized by the applicable Terms Agreement, the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company or the Operating Partnership, as the case may be, pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially in the form of Exhibit B hereto with such changes therein as the Company or the Operating Partnership, as the case may be, may approve. As compensation for arranging Delayed Delivery Contracts, the Company or the Operating Partnership, as the case may be, will pay to the Representatives at Closing Time, for the respective accounts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors of the types described in the Prospectus. At the applicable Closing Time, the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery Contracts.
Appears in 1 contract
Samples: Underwriting Agreement (Duke Realty Limited Partnership/)
Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on On the basis of the representations and warranties herein contained and shall be subject to the terms and conditions herein set forth, the Company agrees to sell to each Underwriter, severally and not jointly, and each Underwriter, severally and not jointly, agrees to purchase from the Company, at $24.2125 per share, the number of Initial Securities set forth herein or in Schedule A opposite the applicable Terms Agreementname of such Underwriter plus any additional number of Initial Securities which such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereof.
(b) In addition, on the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company or the Operating Partnership, as the case may be, may grant, if so provided in the applicable Terms Agreement relating to the Initial Underwritten Securities, hereby grants an option to the Underwriters named in such Terms AgreementUnderwriters, severally and not jointly, to purchase up to an additional 540,000 shares of Series E Preferred Stock at the number of Option Securities price per share set forth therein at the same price per Option Security as is applicable to the Initial Underwritten Securities, less an amount equal to any dividends or distributions declared by the Company and paid or payable on the Initial Underwritten Securities but not payable on the Option Securitiesin paragraph (a) above. Such option, if granted, The option hereby granted will expire 30 days (or such lesser number of days as may be specified in the applicable Terms Agreement) after the Representation Date relating to the Initial Underwritten SecuritiesDate, and may be exercised in whole or in part from time to time only for the purpose of covering over-allotments which may be made in connection with the offering and distribution of the Initial Securities upon notice by the Representatives Representative to the Company or the Operating Partnership, as the case may be, setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time, time and date and place of payment and delivery for such Option Securities. Any such time, time and date and place of delivery (a “Date of Delivery”) shall be determined by the Representatives, but Representative and shall not be prior to the Closing Time, as hereinafter defined. If a Date of Delivery shall occur on a date which is later than the Closing Time, such Date of Delivery shall not be earlier than three full business days or later than seven full business days nor earlier than two full business days after the exercise of said option, nor in any event unless otherwise agreed upon by the Representative and the Company. If a Date of Delivery shall occur at the Closing Time, the Representative shall provide notice to the Company regarding such Date of Delivery at least one full business day prior to the Closing Time, unless otherwise agreed upon by the Representatives Representative and the Company or the Operating Partnership, as the case may beCompany. If the option is exercised as to all or any portion of the Option Securities, each of the Underwriters, acting severally and not jointly, will purchase that proportion of the total number of Option Securities then being purchased which the number of Initial Underwritten Securities each such Underwriter has severally agreed to purchase as set forth in Schedule A opposite the applicable Terms Agreement name of such Underwriter bears to the total number of Initial Underwritten Securities (except as otherwise provided in the applicable Terms Agreement)Securities, subject in each case to such adjustments as the Representatives Representative in their its discretion shall make to eliminate any sales or purchases of fractional Underwritten Securitiesshares.
(c) Payment of the purchase price for, and delivery of certificates for, the Initial Underwritten Securities to be purchased by the Underwriters shall be made at the offices office of Xxxxxxxx Chance US Xxxxxx & Xxxxxxx LLP, 00 000 Xxxx 00xx XxxxxxXxxxxx Xxxxx, Xxx Xxxxx 0000, Xxxxx Xxxx, Xxx Xxxx Xxxxxxxxxx 00000-0000, or at such other place as shall be agreed upon by the Representatives Representative and the Company or the Operating Partnership, as the case may beCompany, at 10:00 A.M. 7:00 A.M., California time, on the fourth business day (or the third business day if required under Rule 15c6-1 of the 1934 ActSeptember 15, 2003, or unless postponed in accordance with the provisions of Section 10) following the date of the applicable Terms Agreement or at such other time not later than ten business days after such date as shall be agreed upon by the Representatives Representative and the Company (such time and date of payment and delivery being herein called the “Closing Time”). In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, for and delivery of certificates for, for such Option Securities shall be made at the above-mentioned offices office of Xxxxxxxx Chance US Xxxxxx & Xxxxxxx LLP, or at such other place as shall be mutually agreed upon by the Representatives Representative and the Company or the Operating Partnership, as the case may beCompany, on each Date of Delivery as specified in the notice from the Representatives Representative to the Company. Payment for the Underwritten Securities shall be made to the Company or the Operating Partnership, as the case may be, by wire transfer of immediately available funds to a bank account designated by the Company or the Operating Partnership, as the case may be, against delivery to the Representatives Representative for the respective accounts of the Underwriters of certificates for the Underwritten Securities to be purchased by them. Certificates for the Underwritten Initial Securities and the Option Securities, if any, shall be in such denominations and registered in such names as the Representatives Representative may request in writing at least two one business days day before the Closing Time or the relevant Date of Delivery, as the case may be. It is understood that each Underwriter has authorized the RepresentativesRepresentative, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Underwritten Initial Securities and the Option Securities, if any, which it has agreed to purchase. The RepresentativesXxxxxxx Xxxxx, individually and not as representatives representative of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Underwritten Initial Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have check has not been received by the Closing Time or the relevant Date of Delivery, as the case may beTime, but any such payment shall not relieve release such Underwriter from its obligations hereunder. The certificates for the Initial Securities and the Option Securities, if any, will be made available for examination and packaging by the Representatives Representative not later than 10:00 A.M. on the last business day prior to the Closing Time or the relevant Date of Delivery, as the case may be, in New York, New York. If authorized by the applicable Terms Agreement, the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company or the Operating Partnership, as the case may be, pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially in the form of Exhibit B hereto with such changes therein as the Company or the Operating Partnership, as the case may be, may approve. As compensation for arranging Delayed Delivery Contracts, the Company or the Operating Partnership, as the case may be, will pay to the Representatives at Closing Time, for the respective accounts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors of the types described in the Prospectus. At the applicable Closing Time, the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery Contracts.
Appears in 1 contract
Samples: Purchase Agreement (Health Care Property Investors Inc)
Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on the basis of the representations and warranties herein contained and shall be subject to the terms and conditions set forth herein or in the applicable Terms Agreement.
(b) In addition, on On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company or the Operating Partnershipagrees to sell to each Underwriter, as the case may be, may grant, if so provided in the applicable Terms Agreement relating to the Initial Underwritten Securities, an option to the Underwriters named in such Terms Agreementand each Underwriter, severally and not jointly, agrees to purchase up to from the number Company, at 99.206% of Option the principal amount thereof, the aggregate principal amount of Securities set forth therein in Schedule A opposite the name of such Underwriter, plus any additional aggregate principal amount of Securities which such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereof.
(b) Payment of the purchase price for the Securities shall be made at the same price per Option Security as is applicable to offices of the Initial Underwritten SecuritiesCompany, less an amount equal to any dividends or distributions declared by the Company and paid or payable on the Initial Underwritten Securities but not payable on the Option Securities. Such option10990 Wilshire Boulevard, if grantedLos Angelex, will expire 30 days (or such lesser number of days as may be specified in the applicable Terms Agreement) after the Representation Date relating to the Initial Underwritten SecuritiesXxxxxxxxxx, and may be exercised in whole or in part from time to time upon notice by the Representatives to the Company or the Operating Partnership, as the case may be, setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time, date and place of payment and delivery for such Option Securities. Any such time, date and place of delivery (a “Date of Delivery”) shall be determined by the Representatives, but shall not be later than seven full business days nor earlier than two full business days after the exercise of said option, nor in any event prior to the Closing Time, unless otherwise xx xx xxxx xxxxx xxxxx xx xxxxx xx agreed upon by the Representatives and the Company or the Operating PartnershipCompany, as the case may be. If the option is exercised as to all or any portion of the Option Securitiesat 7:00 a.m., each of the UnderwritersCalifornia time, acting severally and not jointlyon December 14, will purchase that proportion of the total number of Option Securities then being purchased which the number of Initial Underwritten Securities each such Underwriter has severally agreed to purchase as set forth in the applicable Terms Agreement bears to the total number of Initial Underwritten Securities (except as otherwise provided in the applicable Terms Agreement), subject to such adjustments as the Representatives in their discretion shall make to eliminate any sales or purchases of fractional Underwritten Securities.
(c) Payment of the purchase price for, and delivery of certificates for, the Initial Underwritten Securities to be purchased by the Underwriters shall be made at the offices of Xxxxxxxx Chance US LLP, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 000002001, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, at 10:00 A.M. on the fourth business day (or the third business day if required under Rule 15c6-1 of the 1934 Act, or unless postponed in accordance with the provisions of Section 10) following the date of the applicable Terms Agreement or at such other time not later than ten business days after such date as shall be agreed upon by the Representatives and the Company (such time and date of payment and delivery of the Securities being herein called the “"Closing Time”"). In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates for, such Option Securities shall be made at the above-mentioned offices of Xxxxxxxx Chance US LLP, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, on each Date of Delivery as specified in the notice from the Representatives to the Company. Payment for the Underwritten Securities shall be made to the Company or the Operating Partnership, as the case may be, by wire transfer of immediately available funds to a bank account designated by the Company or the Operating Partnership, as the case may beCompany, against delivery to the Representatives for the respective accounts of the several Underwriters of certificates for the Underwritten Securities to be purchased by them. Certificates for the Underwritten Securities and the Option Securities, if any, shall be in such denominations and registered in such names as the Representatives may request in writing at least two one full business days day before the Closing Time or the relevant Date of Delivery, as the case may beTime. It is understood that each Underwriter has authorized the Representatives, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Underwritten Securities and the Option Securities, if any, which it has agreed to purchase. The RepresentativesBanc of America Securities LLC, individually and not as representatives a representative of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Underwritten any Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have payment therefor has not been received by the Closing Time or the relevant Date of Delivery, as the case may beTime, but any such payment shall not relieve such Underwriter from its obligations hereunder. The certificates for the Initial Securities and the Option Securities, if any, will be made available for examination and packaging by the Representatives not later than 10:00 A.M. a.m. (New York City time) on the last business day prior to the Closing Time or the relevant Date of Delivery, as the case may be, in New York, New York. If authorized by the applicable Terms Agreement, the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company or the Operating Partnership, as the case may be, pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially in the form of Exhibit B hereto with such changes therein as the Company or the Operating Partnership, as the case may be, may approve. As compensation for arranging Delayed Delivery Contracts, the Company or the Operating Partnership, as the case may be, will pay to the Representatives at Closing Time, for the respective accounts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors of the types described in the Prospectus. At the applicable Closing Time, the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery Contracts.
Appears in 1 contract
Samples: Underwriting Agreement (Kb Home)
Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on the basis of the representations and warranties herein contained and shall be subject to the terms and conditions set forth herein or in the applicable Terms Agreement.
(b) In addition, on On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company or the Operating Partnership, as the case may be, may grant, if so provided in the applicable Terms Agreement relating Trust agrees to the Initial Underwritten Securities, an option sell to the Underwriters named in such Terms Agreementeach Underwriter, severally and not jointly, to purchase up to the number of Option Securities set forth therein at the same price per Option Security as is applicable to the Initial Underwritten Securitiesand each Underwriter, less an amount equal to any dividends or distributions declared by the Company and paid or payable on the Initial Underwritten Securities but not payable on the Option Securities. Such option, if granted, will expire 30 days (or such lesser number of days as may be specified in the applicable Terms Agreement) after the Representation Date relating to the Initial Underwritten Securities, and may be exercised in whole or in part from time to time upon notice by the Representatives to the Company or the Operating Partnership, as the case may be, setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time, date and place of payment and delivery for such Option Securities. Any such time, date and place of delivery (a “Date of Delivery”) shall be determined by the Representatives, but shall not be later than seven full business days nor earlier than two full business days after the exercise of said option, nor in any event prior to the Closing Time, unless otherwise agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be. If the option is exercised as to all or any portion of the Option Securities, each of the Underwriters, acting severally and not jointly, will agrees to purchase that proportion of from the total number of Option Securities then being purchased which Trust, at the price per security set forth in Schedule II hereto, the number of Initial Underwritten Preferred Securities each set forth in Schedule I opposite the name of such Underwriter, plus any additional number of Preferred Securities that such Underwriter has severally agreed may become obligated to purchase pursuant to the provisions of Section 10 hereof. The purchase price per security to be paid by the several Underwriters for the Preferred Securities shall be an amount equal to the initial public offering price set forth on Schedule II, which is a fixed price determined by agreement between the Representative and the Offerors. As compensation to the Underwriters for their commitments hereunder and in view of the fact that the proceeds of the sale of the Preferred Securities will be used to purchase the Junior Subordinated Notes of the Company, the Company hereby agrees to pay on the Closing Date (as defined below) to the Representative, for the accounts of the several Underwriters, a commission per Preferred Security as set forth in on Schedule II for the applicable Terms Agreement bears Preferred Securities to be delivered by the total number of Initial Underwritten Securities (except as otherwise provided in Trust hereunder on the applicable Terms Agreement), subject to such adjustments as the Representatives in their discretion shall make to eliminate any sales or purchases of fractional Underwritten SecuritiesClosing Date.
(cb) Payment of the purchase price for, and delivery of certificates for, the Initial Underwritten Preferred Securities to be purchased by the Underwriters shall be made at the offices of Xxxxxxxx Chance US Dewey Ballantine LLP, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, at 10:00 A.M. on the fourth business day (or the third business day if required under Rule 15c6-1 1301 Avenue of the 1934 ActAmericas, or New York, New York xx 0:00 x.x., Xew York time, on February 25, 1999 (unless postponed in accordance with the provisions of Section 10) following the date of the applicable Terms Agreement or at such other time time, place or date as shall be agreed upon by the Representatives Representative, the Trust and the Company (such time and date of payment and delivery being herein called the “"Closing Time”Date"). In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates for, such Option Securities shall be made at the above-mentioned offices of Xxxxxxxx Chance US LLP, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, on each Date of Delivery as specified in the notice from the Representatives to the Company. Payment for the Underwritten Securities shall be made to the Company or the Operating Partnership, as the case may be, Trust by wire transfer of immediately available in federal funds to a bank account designated by at the Company or the Operating Partnership, as the case may beClosing Date, against delivery to the Representatives Representative for the respective accounts of the Underwriters of certificates for the Underwritten Preferred Securities to be purchased by them. Certificates for the Underwritten Preferred Securities and the Option Securities, if any, shall be in such denominations and registered in such names as the Representatives Representative may request in writing at least two business days before the Closing Time or the relevant Date of Delivery, as the case may beDate. It is understood that each Underwriter has authorized the RepresentativesRepresentative, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Underwritten Preferred Securities and the Option Securities, if any, which it has agreed to purchase. The RepresentativesRepresentative, individually and not as representatives Representative of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Underwritten Preferred Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have check has not been received by the Closing Time or the relevant Date of Delivery, as the case may beDate, but any such payment shall not relieve such Underwriter from its obligations hereunder. The certificates certificate(s) for the Initial Preferred Securities and the Option Securities, if any, will be made available for examination and packaging by the Representatives Representative not later than 10:00 A.M. 12:00 Noon, New York time, on the last business day prior to the Closing Time or Date. On the relevant Date of Delivery, as the case may be, in New York, New York. If authorized by the applicable Terms Agreement, the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company or the Operating Partnership, as the case may be, pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially in the form of Exhibit B hereto with such changes therein as the Company or the Operating Partnership, as the case may be, may approve. As compensation for arranging Delayed Delivery ContractsClosing Date, the Company will pay, or cause to be paid, the Operating Partnership, as the case may be, will pay commission payable at such time to the Representatives at Closing Time, for the respective accounts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors of the types described in the Prospectus. At the applicable Closing Time, the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms AgreementUnderwriters under Section 2(a) with all purchasers proposed hereof by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit wire transfer payable to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth Representative in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery Contractsfederal funds.
Appears in 1 contract
Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on the basis of the representations and warranties herein contained and shall be subject to the terms and conditions set forth herein or in the applicable Terms Agreement.
(b) In addition, on On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company or the Operating Partnership, as the case may be, may grant, if so provided in the applicable Terms Agreement relating agrees to the Initial Underwritten Securities, an option sell to the Underwriters named in such Terms Agreementeach Underwriter, severally and not jointly, to purchase up to the number of Option Securities set forth therein at the same price per Option Security as is applicable to the Initial Underwritten Securitiesand each Underwriter, less an amount equal to any dividends or distributions declared by the Company and paid or payable on the Initial Underwritten Securities but not payable on the Option Securities. Such option, if granted, will expire 30 days (or such lesser number of days as may be specified in the applicable Terms Agreement) after the Representation Date relating to the Initial Underwritten Securities, and may be exercised in whole or in part from time to time upon notice by the Representatives to the Company or the Operating Partnership, as the case may be, setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time, date and place of payment and delivery for such Option Securities. Any such time, date and place of delivery (a “Date of Delivery”) shall be determined by the Representatives, but shall not be later than seven full business days nor earlier than two full business days after the exercise of said option, nor in any event prior to the Closing Time, unless otherwise agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be. If the option is exercised as to all or any portion of the Option Securities, each of the Underwriters, acting severally and not jointly, will agrees to purchase that proportion from the Company, the aggregate principal amount of the total number Securities set forth opposite their names on Schedule A at a purchase price of Option 99.277% of the principal amount thereof, plus any additional principal amount of Securities then being purchased which the number of Initial Underwritten Securities each such Underwriter has severally agreed may become obligated to purchase as set forth in the applicable Terms Agreement bears pursuant to the total number provisions of Initial Underwritten Securities (except as otherwise provided in the applicable Terms Agreement), subject to such adjustments as the Representatives in their discretion shall make to eliminate any sales or purchases of fractional Underwritten SecuritiesSection 10 hereof.
(cb) Payment of the purchase price for, and delivery of certificates for, the Initial Underwritten Securities to be purchased by the Underwriters shall be made at the offices office of Xxxxxxxx Chance US Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP, 00 Xxxx 00xx XxxxxxOxx Xxxxxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx 00000, 00000 or at such other place as shall be agreed upon by the Representatives you and the Company or the Operating Partnership, as the case may beCompany, at 10:00 A.M. 7:00 A.M., California time, on the fourth business day (or the third business day if required under Rule 15c6-1 of the 1934 ActJuly 12, 2021, or unless postponed in accordance with the provisions of Section 10) following the date of the applicable Terms Agreement or at such other time not later than ten business days after such date as shall be agreed upon by the Representatives and the Company (such time and date of payment and delivery being herein called the “Closing Time”). In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates for, such Option Securities shall be made at the above-mentioned offices of Xxxxxxxx Chance US LLP, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, on each Date of Delivery as specified in the notice from the Representatives to the Company. Payment for the Underwritten Securities shall be made to the Company or the Operating Partnership, as the case may be, by wire transfer of immediately available funds to a bank account designated by the Company or the Operating Partnership, as the case may be, against delivery to the Representatives for the respective accounts of the Underwriters of certificates for the Underwritten Securities to be purchased by them. Certificates for the Underwritten Securities and the Option Securities, if any, shall be in such denominations and registered in such names as the Representatives may request in writing at least two one business days day before the Closing Time or the relevant Date of Delivery, as the case may beTime. It is understood that each Underwriter has authorized the Representatives, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Underwritten Securities and the Option Securities, if any, which it such Underwriter has agreed to purchase. The RepresentativesWxxxx Fargo Securities, LLC, individually and not as representatives representative of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Underwritten Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have check has not been received by the Closing Time or the relevant Date of Delivery, as the case may beTime, but any such payment shall not relieve release such Underwriter from its obligations hereunder. The certificates for the Initial Securities and the Option Securities, if any, will be made available for examination and packaging by the Representatives not later than 10:00 A.M. on the last business day prior to the Closing Time or the relevant Date of Delivery, as the case may be, in New York, New York. If authorized by the applicable Terms Agreement, the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company or the Operating Partnership, as the case may be, pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially in the form of Exhibit B hereto with such changes therein as the Company or the Operating Partnership, as the case may be, may approve. As compensation for arranging Delayed Delivery Contracts, the Company or the Operating Partnership, as the case may be, will pay to the Representatives at Closing Time, for the respective accounts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors of the types described in the Prospectus. At the applicable Closing Time, the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery Contracts.
Appears in 1 contract
Samples: Underwriting Agreement (Healthpeak Properties, Inc.)
Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on the basis of the representations and warranties herein contained and shall be subject to the terms and conditions herein set forth herein or in the applicable Terms Agreementforth.
(b) In addition, on the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company or the Operating Partnership, as the case may be, may grant, if so provided in the applicable Terms Agreement relating to the Initial Underwritten SecuritiesAgreement, an option to the Underwriters named in such Terms AgreementUnderwriters, severally and not jointly, to purchase up to the number of Option Underwritten Securities set forth therein at the same a price per Option Underwritten Security as is applicable equal to the price per Initial Underwritten SecuritiesSecurity, less an amount equal to any dividends or distributions declared by the Company and paid or payable on the Initial Underwritten Securities but not payable on the Option Underwritten Securities. Such option, if granted, will expire 30 days (or after the date of such lesser number of days as may be specified in the applicable Terms Agreement) after the Representation Date relating to the Initial Underwritten Securities, and may be exercised in whole or in part from time to time only for the purpose of covering over-allotments which may be made in connection with the offering and distribution of the Initial Underwritten Securities upon notice by the Representatives you to the Company or the Operating Partnership, as the case may be, setting forth the number of Option Underwritten Securities as to which the several Underwriters are then exercising the option and the time, date and place of payment and delivery for such Option Underwritten Securities. Any such time, time and date of payment and place of delivery (each, a “"Date of Delivery”") shall be determined by the Representativesyou, but shall not be later than seven full business days nor earlier than two full business days after the exercise of said option, nor in any event prior to the Closing Time, unless otherwise agreed upon by the Representatives you and the Company or the Operating Partnership, as the case may beCompany. If the option is exercised as to all or any portion of the Option Underwritten Securities, each of the Underwriters, acting severally and not jointly, will purchase that proportion of the total number of Option Underwritten Securities then being purchased which the number of Initial Underwritten Securities each such Underwriter has severally agreed to purchase as set forth in the applicable such Terms Agreement bears to the total number of Initial Underwritten Securities (except as otherwise provided in the applicable Terms Agreement), subject to such adjustments as the Representatives in their discretion shall make to eliminate any sales or purchases of fractional Underwritten Securities.
(c) Payment of the purchase price for, and delivery of certificates forof, the Initial Underwritten Securities to be purchased by the Underwriters shall be made at the offices of Xxxxxxxx Chance US LLPXxxxxxx & Xxxxx L.L.P., 00 Xxxx 00xx 0000 Xxxxxxxxxxxx Xxxxxx, Xxx XxxxX.X., Xxx Xxxx Xxxxxxxxxx, X.X. 00000, or at such other place as shall be agreed upon by the Representatives you and the Company or the Operating Partnership, as the case may beCompany, at 10:00 A.M. (Eastern time) on the fourth third (fourth, if the pricing occurs after 4:30 P.M. (Eastern time) on any given day) business day (or after the third business day if required under Rule 15c6-1 date of the 1934 Act, or applicable Terms Agreement (unless postponed in accordance with the provisions of Section 10) following the date of the applicable Terms Agreement 10 hereof), or at such other time not later than ten business days after such date as shall be agreed upon by the Representatives you and the Company (such time and date of payment and delivery being herein called the “"Closing Time”"). In addition, in the event that the Underwriters have exercised their option, if any, to purchase any or all of the Option Securities are purchased by the UnderwritersUnderwritten Securities, payment of the purchase price for, and delivery of certificates for, such Option Securities Underwritten Securities, shall be made at the above-mentioned offices of Xxxxxxxx Chance US LLPXxxxxxx & Xxxxx L.L.P., or at such other place as shall be agreed upon by the Representatives you and the Company or the Operating Partnership, as the case may beCompany, on each the relevant Date of Delivery as specified in the notice from the Representatives you to the Company. Payment for the Underwritten Securities shall be made to the Company or the Operating Partnership, as the case may be, by wire transfer of immediately available funds to a bank account designated by the Company or the Operating Partnership, as the case may beCompany, against delivery to the Representatives you for the respective accounts of the Underwriters of the Underwritten Securities to be purchased by them. Certificates for the Underwritten Securities and the Option Securities, if any, shall be in such denominations and registered in such names as the Representatives may request in writing at least two business days before the Closing Time or the relevant Date of Delivery, as the case may be. It is understood that each Underwriter has authorized the Representativesyou, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Underwritten Securities and the Option Securities, if any, which it has severally agreed to purchase. The RepresentativesYou, individually and not as representatives representative of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Underwritten Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have not been received by the Closing Time or the relevant Date of Delivery, as the case may be, but any such payment shall not relieve such Underwriter from its obligations hereunder. .
(d) The certificates for the Initial Underwritten Securities shall be in such denominations and the Option Securities, if any, will be made available for examination and packaging by the Representatives not later than 10:00 A.M. on the last registered in such names as you may request in writing at least one full business day prior to the Closing Time or the relevant Date of Delivery, as the case may be, in New York, New York. If authorized by the applicable Terms Agreement, the Underwriters named therein may solicit offers to purchase The Underwritten Securities from will be made available for examination and packaging by you in The City of New York not later than 10:00 A.M. (Eastern time) on the Company business day prior to the Closing Time or the Operating Partnershiprelevant Date of Delivery, as the case may be, pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially in the form of Exhibit B hereto with such changes therein as the Company or the Operating Partnership, as the case may be, may approve. As compensation for arranging Delayed Delivery Contracts, the Company or the Operating Partnership, as the case may be, will pay to the Representatives at Closing Time, for the respective accounts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors of the types described in the Prospectus. At the applicable Closing Time, the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery Contracts.
Appears in 1 contract
Samples: Underwriting Agreement (Washington Real Estate Investment Trust)
Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on the basis of the representations and warranties herein contained and shall be subject Subject to the terms and conditions set forth herein or in herein, (i) (A) the applicable Terms Agreement.
(b) In addition, on the basis Company agrees to issue and sell to each of the representations Underwriters, and warranties herein contained and subject to the terms and conditions herein set forth, the Company or the Operating Partnership, as the case may be, may grant, if so provided in the applicable Terms Agreement relating to the Initial Underwritten Securities, an option to each of the Underwriters named in such Terms Agreementagrees, severally and not jointly, to purchase from the Company, at a purchase price per share of $_______, the number of Firm Securities set forth opposite the name of such Underwriter in Schedule I hereto and, (B) in the event and to the extent that the Underwriters exercise the election to purchase Optional Securities as provided below, the Company agrees to issue and sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Company, at the purchase price per share set forth in clause (i)(A) of this Section 2(a), that portion of the number of Company Optional Securities as to which such election shall have been exercised (to be adjusted by you so as to eliminate fractional shares) determined by multiplying such number of Company Optional Securities by a fraction, the numerator of which is the maximum number of Company Optional Shares which such Underwriter is entitled to purchase as set forth opposite the name of such Underwriter in Schedule I hereto and the denominator of which is the maximum number of Company Optional Securities that all of the Underwriters are entitled to purchase hereunder; (ii) (A) each Selling Shareholder agrees, severally and not jointly, to sell to each of the Underwriters and each of the Underwriters agrees, severally and not jointly, to purchase from such Selling Shareholder, at a purchase price per share of $______, the number of Firm Securities set forth opposite the name of such Underwriter in Schedule II hereto and (B) in the event and to the extent that the Underwriters shall exercise the election to purchase Optional Securities as provided below, each Selling Shareholder agrees, severally and not jointly, to sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from such Selling Shareholder, at the purchase price per share set forth in clause (ii)(A) of this Section 2(a), that portion of the number of Selling Shareholders' Optional Securities as to which such election shall have been exercised (to be adjusted by you so as to eliminate fractional shares) determined by multiplying such number of Selling Shareholders' Optional Securities by a fraction, the numerator of which is the maximum number of Selling Shareholders' Optional Securities which such Underwriter is entitled to purchase as set forth opposite the name of such Underwriter in Schedule II hereto and the denominator of which is the maximum number of Selling Shareholders' Optional Securities that all of the Underwriters are entitled to purchase hereunder.
(b) The Company hereby grants to the Underwriters the right to purchase at their election up to the number of Option Company Optional Securities set forth therein on Schedule I hereto, at the same purchase price per Option Security as is applicable to share set forth in Section 2(a)(i)(A) hereof, for the Initial Underwritten sole purpose of covering sales of shares in excess of the number of Firm Securities, less provided that the purchase price per Company Optional Security shall be reduced by an amount per share equal to any dividends or distributions declared by the Company and paid or payable on the Initial Underwritten Firm Securities but not payable on the Option Company Optional Securities. Such option, if granted, will expire 30 days (or Any such lesser number of days as may be specified in the applicable Terms Agreement) after the Representation Date relating election to the Initial Underwritten Securities, and purchase Company Optional Securities may be exercised in whole or in part only by written notice from time to time upon notice by the Representatives you to the Company or Company, given within a period of 30 calendar days after the Operating Partnership, as the case may bedate of this Agreement, setting forth the number of Option Company Optional Securities as to which the several Underwriters are then exercising the option be purchased and the timedate on which such Company Optional Securities are to be delivered, date and place of payment and delivery for such Option Securities. Any such time, date and place of delivery (a “Date of Delivery”) shall be as determined by you but in no event earlier than the RepresentativesFirst Time of Delivery or, but shall not be later than seven full business days nor unless you and the Company otherwise agree in writing, earlier than two full business days or later than ten Business Days (as defined below) after the exercise date of said option, nor in any event prior to the Closing Time, unless otherwise agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be. If the option is exercised as to all or any portion of the Option Securities, each of the Underwriters, acting severally and not jointly, will purchase that proportion of the total number of Option Securities then being purchased which the number of Initial Underwritten Securities each such Underwriter has severally agreed to purchase as set forth in the applicable Terms Agreement bears to the total number of Initial Underwritten Securities (except as otherwise provided in the applicable Terms Agreement), subject to such adjustments as the Representatives in their discretion shall make to eliminate any sales or purchases of fractional Underwritten Securitiesnotice.
(c) Payment Each Selling Shareholder hereby grants to the Underwriters the right to purchase at their election up to the number of Selling Shareholders' Optional Securities set forth opposite the name of such Selling Shareholder on Schedule II hereto, at the purchase price forper share set forth in Section 2(a)(ii)(A) hereof, for the sole purpose of covering sales of shares in excess of the number of Firm Securities, provided that the purchase price per Selling Shareholders' Optional Security shall be reduced by an amount per share equal to any dividends or distributions declared by the Company and delivery payable on the Firm Securities but not payable on the Optional Securities. Any such election to purchase Selling Shareholders' Optional Securities may be exercised only by written notice from you to the Selling Shareholders, given within a period of certificates for30 calendar days after the date of this Agreement, setting forth the number of Selling Shareholders' Optional Securities to be purchased and the date on which such Selling Shareholders' Optional Securities are to be delivered, as determined by you but in no event earlier than the First Time of Delivery or, unless you, the Initial Underwritten Company and such Selling Shareholder otherwise agree in writing, earlier than two or later than ten Business Days after the date of such notice.
(d) Upon the authorization by you of the release of the Firm Securities, the several Underwriters propose to offer the Firm Securities for sale upon the terms and conditions set forth in the Prospectus.
(i) The Securities to be purchased by the Underwriters shall be made at the offices of Xxxxxxxx Chance US LLP, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, at 10:00 A.M. on the fourth business day (or the third business day if required under Rule 15c6-1 of the 1934 Act, or unless postponed each Underwriter hereunder in accordance with the provisions of Section 10) following the date of the applicable Terms Agreement or at such other time as shall be agreed upon by the Representatives and the Company (such time and date of payment and delivery being herein called the “Closing Time”). In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price fordefinitive form, and delivery of certificates for, such Option Securities shall be made at the above-mentioned offices of Xxxxxxxx Chance US LLP, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, on each Date of Delivery as specified in the notice from the Representatives to the Company. Payment for the Underwritten Securities shall be made to the Company or the Operating Partnership, as the case may be, by wire transfer of immediately available funds to a bank account designated by the Company or the Operating Partnership, as the case may be, against delivery to the Representatives for the respective accounts of the Underwriters of the Underwritten Securities to be purchased by them. Certificates for the Underwritten Securities and the Option Securities, if any, shall be in such authorized denominations and registered in such names as the Lead Representatives may request in writing upon at least two business days before forty-eight hours' prior notice to the Closing Time Company shall be delivered by or on behalf of the relevant Date of Delivery, as Company and the case may be. It is understood that each Underwriter has authorized Selling Shareholders to the Lead Representatives, through the facilities of the Depository Trust Company ("DTC"), for its accountthe account of such Underwriter, to accept delivery of, receipt for, and make against payment by or on behalf of such Underwriter of the purchase price for, therefor by wire transfer of Federal (same-day) funds to the Underwritten Securities account specified by the Company to the Lead Representatives at least forty-eight hours in advance. The Company and the Option Securities, if any, which it has agreed to purchase. The Representatives, individually and not as representatives of Selling Shareholders will cause the Underwriters, may (but shall not be obligated to) make payment of certificates representing the purchase price for the Underwritten Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have not been received made available for checking and packaging at least twenty-four hours prior to the Time of Delivery (as defined below) with respect thereto at the office of DTC or its designated custodian (the "Designated Office"). The time and date of such delivery and payment shall be 9:30 a.m., New York City time, on ______, 2007 or such other time and date as the Lead Representatives and the Company may agree upon in writing. The time and date of such delivery and payment shall be, with respect to the Firm Securities, 9:30 a.m., New York City time, on ______, 2007 or such other time and date as the Lead Representatives and the Company may agree upon in writing, and, with respect to the Optional Securities, 9:30 a.m., New York City time, on the date specified by the Closing Lead Representatives in the written notice given by the Lead Representatives to the Underwriters' election to purchase such Optional Securities, or such other time and date as the Lead Representatives and the Company may agree upon in writing. Such time and date for delivery of the Firm Securities is herein called the "First Time or of Delivery", such time and date for delivery of the relevant Date Optional Securities, if not the First Time of Delivery, as is herein called the case may be"Second Time of Delivery," and each such time and date for delivery is herein called a "Time of Delivery."
(ii) The documents to be delivered at each Time of Delivery by or on behalf of the parties hereto pursuant to Section 6 hereof, but any such payment shall not relieve such Underwriter from its obligations hereunder. The certificates including the cross receipt for the Initial Securities and any additional documents requested by the Option Securities, if anyUnderwriters pursuant to Section 3 hereof, will be made available for examination delivered at the offices of Xxxxxx Xxxxxx & Xxxxxxx LLP, Eighty Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000-0000 (the "Closing Location"), and packaging by the Representatives not later than 10:00 A.M. Securities will be delivered at the Designated Office, all at such Time of Delivery. A meeting will be held at the Closing Location at _____ p.m., New York City time, on the last business day prior to the Closing Business Day next preceding such Time or the relevant Date of Delivery, as at which meeting the case may be, in New York, New York. If authorized by the applicable Terms Agreement, the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company or the Operating Partnership, as the case may be, pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially in the form of Exhibit B hereto with such changes therein as the Company or the Operating Partnership, as the case may be, may approve. As compensation for arranging Delayed Delivery Contracts, the Company or the Operating Partnership, as the case may be, will pay to the Representatives at Closing Time, for the respective accounts final drafts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified in the applicable Terms Agreement. Any Delayed Delivery Contracts are documents to be with institutional investors of the types described in the Prospectus. At the applicable Closing Time, the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters delivered pursuant to the applicable Terms Agreement shall preceding sentence will be reduced available for review by the amount parties hereto. For the purposes of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms this Agreement, less "Business Day" shall mean each day other than a Saturday, Sunday or other day on which both the amount of Underwritten Securities covered by Delayed Delivery ContractsCommission and banks in New York City are closed for business.
Appears in 1 contract
Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on the basis of the representations and warranties herein contained and shall be subject to the terms and conditions set forth herein or in the applicable Terms Agreement.
(b) In addition, on On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth:
(a) The Company agrees to sell to each Underwriter, the Company or the Operating Partnershipseverally and not jointly, as the case may be, may grant, if so provided in the applicable Terms Agreement relating to the Initial Underwritten Securities, an option to the Underwriters named in such Terms Agreementand each Underwriter agrees, severally and not jointly, to purchase up to from the Company, at $____ per share (the "Initial Price"), the number of Option Securities Firm Shares set forth therein opposite the name of such Underwriter on Schedule I to this Agreement, plus any additional Shares which such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereof.
(b) The Company grants to the several Underwriters an option to purchase, severally and not jointly, all or any part of the Option Shares at the Initial Price. The number of Option Shares to be purchased by each Underwriter shall be the same price per Option Security as is applicable to the Initial Underwritten Securities, less an amount equal to any dividends or distributions declared percentage (adjusted by the Company and paid or payable on Underwriters to eliminate fractions) of the Initial Underwritten Securities but not payable on total number of Option Shares to be purchased by the Option SecuritiesUnderwriters as such Underwriter is purchasing of the Firm Shares. Such option, if granted, will expire 30 days (or such lesser number of days as option may be specified exercised only to cover over-allotments in the applicable Terms Agreement) after sales of the Representation Date relating to Firm Shares by the Initial Underwritten Securities, Underwriters and may be exercised in whole or in part from at any time to time on or before 12:00 noon, New York City time, on the business day before the Firm Shares Closing Date (as defined below), and only once thereafter within 30 days after the date of this Agreement, in each case upon written or telegraphic notice, or verbal or telephonic notice confirmed by written or telegraphic notice, by the Representatives Underwriters to the Company no later than 12:00 noon, New York City time, on the business day before the Firm Shares Closing Date or at least two business days before the Operating PartnershipOption Shares Closing Date (as defined below), as the case may be, setting forth the number of Option Securities as Shares to which the several Underwriters are then exercising the option be purchased and the time, time and date and place (if other than the Firm Shares Closing Date) of payment and delivery for such Option Securitiespurchase. Any such time, date and place of delivery (a “Date of Delivery”) shall be determined by the Representatives, but shall not be later than seven full business days nor earlier than two full business days after the exercise of said option, nor in any event prior to the Closing Time, unless otherwise agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be. If the option is exercised as to all or any portion of the Option Securities, each of the Underwriters, acting severally and not jointly, will purchase that proportion of the total number of Option Securities then being purchased which the number of Initial Underwritten Securities each such Underwriter has severally agreed to purchase as set forth in the applicable Terms Agreement bears to the total number of Initial Underwritten Securities (except as otherwise provided in the applicable Terms Agreement), subject to such adjustments as the Representatives in their discretion shall make to eliminate any sales or purchases of fractional Underwritten Securities.
(c) Payment of the purchase price for, and delivery of certificates forof, the Initial Underwritten Securities to be purchased by the Underwriters Shares shall be made take place at the offices of Xxxxxxxx Chance US LLPXxxxxxxxxxx & Co., 00 Xxxx 00xx Inc., at Xxxxxxxxxxx Xxxxx, Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may beCompany, at 10:00 A.M. A.M., New York City time, on the fourth [third][fourth] business day (or the third business day if required under Rule 15c6-1 of the 1934 Act, or unless postponed in accordance with the provisions of Section 10) following the date of the applicable Terms Agreement this Agreement, or at such other time as shall be agreed upon by the Representatives and the Company (such time and date of payment and delivery being herein called the “"Firm Shares Closing Time”Date"). In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates for, such Option Securities shall be made at the above-mentioned offices of Xxxxxxxx Chance US LLP, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, on each Date of Delivery as specified in the notice from the Representatives to the Company. Payment for the Underwritten Securities shall be made to the Company by certified or the Operating Partnership, as the case may be, by wire transfer of immediately available funds to a official bank account designated by the Company check or the Operating Partnership, as the case may bechecks payable in New York Clearing House (next days) funds, against delivery to the Representatives Underwriters of the Shares to be purchased by them. In the event the option with respect to the Option Shares is exercised, delivery by the Company of the Option Shares to Xxxxxxxxxxx & Co. for the respective accounts of the Underwriters Representatives and payment of the Underwritten Securities purchase price by certified or official bank check or checks payable in New York Clearing House (next day) funds to the Company shall take place at the offices of Xxxxxxxxxxx & Co., Inc. specified above at the time and on the date (which may be purchased by themthe same date as, but in no event shall be earlier than, the Firm Shares Closing Date) specified in the notice referred to in Section 2(b) above (such time and date of delivery and payment are called the "Option Shares Closing Date"). Certificates for the Underwritten Securities The Firm Shares Closing Date and the Option SecuritiesShares Closing Date are called, if anyindividually, a "Closing Date" and, together, the "Closing Dates." Certificates evidencing the Shares shall be registered in such names and shall be in such denominations and registered in such names as the Representatives may shall request in writing at least two full business days before the Firm Shares Closing Time or the relevant Date of Deliveryor, as in the case may be. It of Option Shares, on the day of notice of exercise of the option as described in Section 2 hereof and shall be made available to the Representatives for checking and packaging, at such place as is understood that each Underwriter has authorized designated by the Representatives, for its account, to accept delivery of, receipt for, and make payment of on the purchase price for, full business day before the Underwritten Securities and the Option Securities, if any, which it has agreed to purchase. The Representatives, individually and not as representatives of the Underwriters, may Firm Shares Closing Date (but shall not be obligated to) make payment of the purchase price for the Underwritten Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have not been received by the Shares Closing Time or the relevant Date of Delivery, as in the case may be, but any such payment shall not relieve such Underwriter from its obligations hereunder. The certificates for the Initial Securities and of the Option Securities, if any, will be made available for examination and packaging by the Representatives not later than 10:00 A.M. on the last business day prior to the Closing Time or the relevant Date of Delivery, as the case may be, in New York, New York. If authorized by the applicable Terms Agreement, the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company or the Operating Partnership, as the case may be, pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially in the form of Exhibit B hereto with such changes therein as the Company or the Operating Partnership, as the case may be, may approve. As compensation for arranging Delayed Delivery Contracts, the Company or the Operating Partnership, as the case may be, will pay to the Representatives at Closing Time, for the respective accounts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors of the types described in the Prospectus. At the applicable Closing Time, the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery ContractsShares).
Appears in 1 contract
Samples: Underwriting Agreement (Susquehanna Bancshares Inc)
Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on the basis of the representations and warranties herein contained and shall be subject to the terms and conditions set forth herein or in the applicable Terms Agreement.
(b) In addition, on On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company or the Operating Partnership, as the case may be, may grant, if so provided in the applicable Terms Agreement relating Trust agrees to the Initial Underwritten Securities, an option sell to the Underwriters named in such Terms Agreementeach Underwriter, severally and not jointly, to purchase up to the number of Option Securities set forth therein at the same price per Option Security as is applicable to the Initial Underwritten Securitiesand each Underwriter, less an amount equal to any dividends or distributions declared by the Company and paid or payable on the Initial Underwritten Securities but not payable on the Option Securities. Such option, if granted, will expire 30 days (or such lesser number of days as may be specified in the applicable Terms Agreement) after the Representation Date relating to the Initial Underwritten Securities, and may be exercised in whole or in part from time to time upon notice by the Representatives to the Company or the Operating Partnership, as the case may be, setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time, date and place of payment and delivery for such Option Securities. Any such time, date and place of delivery (a “Date of Delivery”) shall be determined by the Representatives, but shall not be later than seven full business days nor earlier than two full business days after the exercise of said option, nor in any event prior to the Closing Time, unless otherwise agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be. If the option is exercised as to all or any portion of the Option Securities, each of the Underwriters, acting severally and not jointly, will agrees to purchase that proportion from the Trust, at a price of the total number of Option Securities then being purchased which $10.00 per Security, the number of Initial Underwritten Firm Capital Securities each such Underwriter has severally agreed to purchase as set forth in Schedule A opposite the applicable Terms Agreement bears name of such Underwriter, plus any additional Capital Securities which such Underwriter may become obligated to purchase pursuant to the total number provisions of Initial Underwritten Securities (except as otherwise provided in the applicable Terms Agreement), subject to such adjustments as the Representatives in their discretion shall make to eliminate any sales or purchases of fractional Underwritten SecuritiesSection 10 hereof.
(cb) Payment of the purchase price for, and delivery Deliveries of certificates for, for the Initial Underwritten Firm Capital Securities to be purchased by the Underwriters shall be made at the offices office of Xxxxxxxx Chance US LLPWheat First in Richmond, 00 Xxxx 00xx XxxxxxVirginia, Xxx Xxxxand payment of the purchase price for the Firm Capital Securities shall be made by Wheat First, Xxx Xxxx 00000on behalf of the several Underwriters, or to the Trust by wire transfer of immediately available funds contemporaneous with closing at such other place as shall be agreed upon by the Representatives Wheat First and the Company or the Operating Partnership, as the case may beOfferors, at 10:00 A.M. on the fourth business day _________, 1998 (or the third business day if required under Rule 15c6-1 of the 1934 Act, or unless postponed in accordance with the provisions of Section 10) following the date of the applicable Terms Agreement ), or at such other time not later than ten business days after such date as shall be agreed upon by the Representatives Wheat First and the Company Offerors (such time and date of payment and delivery being herein called the “"First Closing Time”Date"). In addition, in .
(c) Payment for the event that any or all of the Option Firm Capital Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates for, such Option Securities shall be made at the above-mentioned offices of Xxxxxxxx Chance US LLP, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, on each Date of Delivery as specified in the notice from the Representatives to the Company. Payment for the Underwritten Securities Underwriters shall be made to the Company or the Operating Partnership, as the case may be, Trust by wire transfer of immediately available funds to a bank account designated by the Company or the Operating Partnership, as the case may befunds, against delivery to the Representatives for the respective accounts of the Underwriters of certificates for the Underwritten Securities to be purchased by themFirm Capital Securities. Certificates for the Underwritten Firm Capital Securities and the Option Securities, if any, shall be in such denominations and registered in such names as the Representatives Underwriters may request in writing at least two one business days day before the First Closing Time or the relevant Date of Delivery, as the case may beDate. It is understood that each Underwriter has authorized the RepresentativesWheat First, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Underwritten Firm Capital Securities and the Option Securities, if any, which it has agreed to purchase. The RepresentativesWheat First, individually and not as representatives representative of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Underwritten Securities or the Option Firm Capital Securities, if any, to be purchased by any Underwriter whose funds have not been received by the First Closing Time or the relevant Date of Delivery, as the case may beDate, but any such payment shall not relieve such Underwriter from its obligations hereunder. The certificates for representing the Initial Firm Capital Securities and the Option Securities, if any, will shall be made available for examination and packaging by the Representatives Underwriters in Richmond, Virginia not later than 10:00 A.M. on the last business day prior to the First Closing Time Date.
(d) In addition, on the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company hereby grants an option to the several Underwriters to purchase, severally and not jointly, up to an aggregate of 300,000 Optional Capital Securities at the purchase price per security to be paid for the Firm Capital Securities, plus accumulated distributions thereon from the date of issuance for use solely in covering any over-allotments made by the representative for the account of the Underwriters in the sale and distribution of the Firm Capital Securities. The option granted hereunder may be exercised at any time (but not more than once) within 30 days after the first date that any of the Capital Securities are released by the Representative for sale to the public, upon notice by the Representative to the Company setting forth the aggregate number of Optional Capital Securities as to which the Underwriters are exercising the option, the names and denominations in which the certificates for such securities are to be registered and the time and place at which such certificates will be delivered. Such time of delivery (which may not be earlier than the First Closing Date), being herein referred to as the "Second Closing Date," shall be determined by the Representative, but if at any time other than the First Closing Date shall not be earlier than three nor later than five full business days after delivery of such notice of exercise. The number of Optional Capital Securities to be purchased by each Underwriter shall be determined by multiplying the number of Optional Capital Securities to be sold by the Company pursuant to such notice of exercise by a fraction, the numerator of which is the number of Firm Capital Securities to be purchased by such Underwriter as set forth opposite its name in Schedule A and the denominator of which is 2,000,000 (subject to such adjustments to eliminate any fractional share purchases as the Representative in its discretion may make). The manner of payment for and delivery of the Capital Securities shall be the same as for the Firm Capital Securities purchased from the Company as specified in the three preceding paragraphs. At any time before lapse of the option, you may cancel such option by giving written notice of such cancellation to the Company. If the option is cancelled or expires unexercised in whole or in part, the Company will deregister under the 1933 Act the number of Optional Capital Securities as to which the option has not been exercised.
(e) As compensation to the Underwriters for their commitments hereunder and in view of the fact that the proceeds of the sale of the Capital Securities will be used to purchase Subordinated Debentures of the Company, the Company hereby agrees to pay at the First Closing Date or the relevant Date of DeliverySecond Closing Date, as the case may be, to Wheat First in New Yorkimmediately available funds, New York. If authorized for the accounts of the several Underwriters, $____ per Capital Security to be delivered by the applicable Terms Agreement, Trust hereunder at the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company First Closing Date or the Operating PartnershipSecond Closing Date, as the case may be, pursuant to delayed delivery contracts .
(“Delayed Delivery Contracts”f) substantially The Underwriter will comply with all material applicable laws and rules in connection with the form sale of Exhibit B hereto with such changes therein the Securities and the Underwriters are not acting as the Company or the Operating Partnership, as the case may be, may approve. As compensation for arranging Delayed Delivery Contracts, the Company or the Operating Partnership, as the case may be, will pay to the Representatives at Closing Time, an agent for the respective accounts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors of the types described in the Prospectus. At the applicable Closing Time, the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery ContractsCompany.
Appears in 1 contract
Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on the basis of the representations and warranties herein contained and shall be subject to the terms and conditions set forth herein or in the applicable Terms Agreement.
(b) In addition, on On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company or the Operating Partnershipagrees to sell to each Underwriter, as the case may be, may grant, if so provided in the applicable Terms Agreement relating to the Initial Underwritten Securities, an option to the Underwriters named in such Terms Agreementand each Underwriter agrees, severally and not jointly, to purchase up to from the number Company, at the purchase price specified in Schedule B hereto, the amount of Option Securities set forth therein at opposite the same price per Option Security as is applicable name of such Underwriter in Schedule A plus any additional principal amount of Securities such Underwriter may become obligated to purchase pursuant to the Initial Underwritten Securities, less an amount equal to any dividends or distributions declared by the provisions of Section 11 hereof. The Company and paid or payable on the Initial Underwritten Securities but not payable on the Option Securities. Such option, if granted, will expire 30 days (or such lesser number of days as may be specified in the applicable Terms Agreement) after the Representation Date relating to the Initial Underwritten Securities, and may be exercised in whole or in part from time to time upon notice by the Representatives to the Company or the Operating Partnership, as the case may be, setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time, date and place of payment and delivery for such Option Securities. Any such time, date and place of delivery (a “Date of Delivery”) shall be determined by the Representatives, but shall not be later than seven full business days nor earlier than two full business days after the exercise of said option, nor in obligated to deliver any event prior to the Closing Time, unless otherwise agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be. If the option is exercised as to all or any portion of the Option Securities, each of Securities except upon payment for all the Underwriters, acting severally and not jointly, will purchase Securities to be purchased as provided herein. It is understood that proportion of you propose to offer the total number of Option Securities then being purchased which the number of Initial Underwritten Securities each such Underwriter has severally agreed to purchase for sale as set forth in the applicable Terms Agreement bears to Disclosure Package and the total number of Initial Underwritten Securities (except as otherwise provided in the applicable Terms Agreement), subject to such adjustments as the Representatives in their discretion shall make to eliminate any sales or purchases of fractional Underwritten SecuritiesProspectus.
(cb) Payment of the purchase price for, and delivery of the certificates for, the Initial Underwritten Securities to be purchased by the Underwriters shall be made at the offices office of Xxxxxxx Xxxxxxx & Xxxxxxxx Chance US LLP, 00 Xxxx 00xx 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may beCompany, at 10:00 A.M. 9:30 a.m. (New York City time) on the fourth business day (or the third business day if required under Rule 15c6-1 of after the 1934 Act, or date hereof (unless postponed in accordance with the provisions of Section 10) following the date of the applicable Terms Agreement 11), or at such other time not later than ten business days after such date as shall be agreed upon by the Representatives and the Company (such time and date of payment and delivery being herein called the “Closing Time”). In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates for, such Option Securities shall be made at the above-mentioned offices of Xxxxxxxx Chance US LLP, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, on each Date of Delivery as specified in the notice from the Representatives to the Company. .
(c) Payment for the Underwritten Securities shall be made to the Company or the Operating Partnership, as the case may be, by wire transfer of immediately available funds to a bank account designated by the Company or the Operating Partnership, as the case may beCompany, against book-entry delivery through the facilities of The Depository Trust Company (“DTC”) to the Representatives for the respective accounts of the Underwriters of the Underwritten Securities to be purchased by them. Certificates for the Underwritten Securities and the Option Securities, if any, shall be in such denominations and registered in such names as the Representatives may request in writing at least two business days before the Closing Time or the relevant Date of Delivery, as the case may be. It is understood that each Underwriter has authorized the Representatives, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Underwritten Securities and the Option Securities, if any, which it has agreed to purchase. The RepresentativesEach of Citigroup Global Markets Inc., Deutsche Bank Securities Inc., Xxxxxxx, Sachs & Co. and X.X. Xxxxxx Securities LLC, individually and not as representatives representative of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Underwritten Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have not been received by the Closing Time or the relevant Date of Delivery, as the case may beTime, but any such payment shall not relieve such Underwriter from its obligations hereunder. .
(d) The certificates for the Initial Securities and the Option Securities, if any, will to be made available for examination and packaging by the Representatives not later than 10:00 A.M. on the last business day prior to the Closing Time or the relevant Date of Delivery, as the case may be, in New York, New York. If authorized by the applicable Terms Agreement, the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company or the Operating Partnership, as the case may be, so delivered pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially this Agreement shall be issued in the form of Exhibit B hereto one or more global securities which shall be deposited with, or in accordance with such changes therein as the Company or the Operating Partnershipinstructions of, as the case may be, may approve. As compensation for arranging Delayed Delivery Contracts, the Company or the Operating Partnership, as the case may be, will pay to the Representatives at Closing Time, for the respective accounts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified DTC and registered in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors name of the types described in the Prospectus. At the applicable Closing Timeits nominee, the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery Contracts.Cede & Co.
Appears in 1 contract
Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on On the basis of the representations and warranties herein contained and shall be subject to the terms and conditions herein set forth, the Company hereby agrees to sell to the Underwriters, severally and not jointly, the respective numbers of Initial Securities set forth herein opposite the name of the Company in Exhibit B hereto, and each Underwriter, severally and not jointly, agrees to purchase the respective number of Initial Securities set forth opposite the name of such Underwriter on Exhibit A hereto, plus any additional number of Initial Securities which such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereof, subject to such adjustments among the Underwriters as the Representatives in their sole discretion shall make to eliminate any sales or purchases of fractional Securities, in each case at a purchase price of $16.93 per share (the applicable Terms Agreement"Purchase Price").
(b) In addition, on the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company or the Operating Partnership, as the case may be, may grant, if so provided in the applicable Terms Agreement relating to the Initial Underwritten Securities, hereby grants an option to the Underwriters named in such Terms AgreementUnderwriters, severally and not jointly, to purchase up to the number of 900,000 Option Securities set forth therein at the same a price per Option Security as is applicable share equal to the Initial Underwritten Securities, less Purchase Price referred to in Section 2(a) above; provided that the price per share for any Option Securities shall be reduced by an amount per share equal to any dividends or distributions declared paid by the Company and paid or payable on the Initial Underwritten Securities but not payable on the such Option Securities. Such option, if granted, The option hereby granted will expire 30 days at 11:59 P.M. (or such lesser number of days as may be specified in New York City time) on the applicable Terms Agreement) 30th day after the Representation Date relating to the Initial Underwritten Securities, date hereof and may be exercised on up to three occasions in whole or in part from time to time only for the purpose of covering over-allotments which may be made in connection with the offering and distribution of the Initial Securities upon notice by the Representatives to the Company or the Operating Partnership, as the case may be, setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time, time and date and place of payment and delivery for such Option Securities. Any such time, time and date and place of delivery (a “Date of Delivery”an "Option Closing Date") shall be determined by the Representatives, but shall not be later than seven full business days nor earlier than two full business days after the exercise of said option, nor in any event prior to the Closing Time, unless otherwise agreed upon by the Representatives and the Company or the Operating Partnership, as the case may beDate. If the option is exercised as to all or any portion of the Option Securities, the Company will sell to the Underwriters that proportion of the total number of Option Securities then being purchased which the number of Option Securities set forth in Section 2(b), and each of the Underwriters, acting severally and not jointly, will purchase that proportion of the total number of Option Securities then being purchased which the number of Initial Underwritten Securities each such Underwriter has severally agreed to purchase as set forth in Exhibit A opposite the applicable Terms Agreement name of such Underwriter, plus any additional number of Initial Securities which such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereof, bears to the total number of Initial Underwritten Securities (except as otherwise provided in the applicable Terms Agreement)Securities, subject in each case to such adjustments as the Representatives in their discretion shall make to eliminate any sales or purchases of fractional Underwritten Securitiesshares.
(c) Payment of the purchase price for, and delivery of certificates for, the Initial Underwritten Securities to be purchased by the Underwriters shall be made at the offices of Xxxxxxxx Cxxxxxxx Chance US LLP, 00 30 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may beCompany, at 10:00 A.M. (New York City time) on the fourth business day May 10, 2013 (or the third business day if required under Rule 15c6-1 of the 1934 Act, or unless postponed in accordance with the provisions of Section 10) following the date of the applicable Terms Agreement ), or at such other time not later than ten business days after such date as shall be agreed upon by the Representatives and the Company (such time and date of payment and delivery being herein called the “"Closing Time”Date"). In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates for, such Option Securities shall be made at 10:00 A.M. (New York City time) at the above-mentioned offices of Xxxxxxxx Chance US LLPoffices, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may beCompany, on each Option Closing Date of Delivery as specified in the notice from the Representatives to the Company. Payment for the Underwritten Securities shall be made to the Company or the Operating Partnership, as the case may be, by wire transfer of immediately available funds to a single bank account designated by the Company or the Operating Partnership, as the case may be, against delivery to the Representatives for the respective accounts of the Underwriters of the Underwritten Securities to be purchased by them. Certificates for the Underwritten Securities and the Option Securities, if any, shall be in such denominations and registered in such names as the Representatives may request in writing at least two business days before the Closing Time or the relevant Date of Delivery, as the case may be. It is understood that each Underwriter has authorized the Representatives, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Underwritten Initial Securities and the Option Securities, if any, which it has agreed to purchase. The Each of the Representatives, individually and not as representatives representative of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Underwritten Initial Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have not been received by the Closing Time Date or the relevant Date of DeliveryOption Closing Date, as the case may be, but any such payment shall not relieve such Underwriter from its obligations hereunder.
(d) Certificates for the Initial Securities and the Option Securities, if any, shall be in such denominations and registered in such names as the Representatives may request in writing at least one full business day before the Closing Date or the relevant Option Closing Date, as the case may be. The certificates for the Initial Securities and the Option Securities, if any, will be made available for examination and packaging by the Representatives in The City of New York not later than 10:00 A.M. noon (New York time) on the last business day prior to the Closing Time Date or the relevant Date of DeliveryOption Closing Date, as the case may be, in New York, New York. If authorized by the applicable Terms Agreement, the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company or the Operating Partnership, as the case may be, pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially in the form of Exhibit B hereto with such changes therein as the Company or the Operating Partnership, as the case may be, may approve. As compensation for arranging Delayed Delivery Contracts, the Company or the Operating Partnership, as the case may be, will pay to the Representatives at Closing Time, for the respective accounts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors of the types described in the Prospectus. At the applicable Closing Time, the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery Contracts.
Appears in 1 contract
Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on On the basis of the representations and warranties herein contained and shall be subject to the terms and conditions herein set forth, the Selling Stockholders severally and not jointly agree to sell the number of Initial Securities set forth herein or in Schedule B opposite the name of each Selling Stockholder to each Underwriter, severally and not jointly, and each Underwriter, severally and not jointly, agrees to purchase from the Selling Stockholders, at the price per share set forth in the applicable Terms Pricing Agreement, the number of Initial Securities set forth in Schedule A opposite the name of such Underwriter (except as otherwise provided in the Pricing Agreement), plus any additional number of Initial Securities which such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereof.
(b) In addition, on the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company or the Operating Partnership, as the case may be, may grant, if so provided in the applicable Terms Agreement relating to the Initial Underwritten Securities, two Selling Stockholders identified on Schedule B hereby severally and not jointly grant an option to the Underwriters named in such Terms Agreement, severally and not jointly, to purchase up to all of the number of Option Securities set forth therein in Schedule B opposite the name of each such Selling Stockholder at the same purchase price per Option Security as is applicable to share set forth in the Initial Underwritten Securities, less an amount equal to any dividends or distributions declared by the Company and paid or payable on the Initial Underwritten Securities but not payable on the Option SecuritiesPricing Agreement. Such option, if granted, The option granted will expire 30 days (or such lesser number of days as may be specified in the applicable Terms Agreement) after the Representation Date relating to the Initial Underwritten Securities, and may be exercised in whole or in part from time to time only for the purpose of covering over-allotments which may be made in connection with the offering and distribution of the Initial Securities upon notice by the Representatives to the Company or and the Operating Partnership, as the case may be, Selling Stockholders setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time, time and date and place of payment and delivery for such Option Securities. Any such time, time and date and place of delivery (a “"Date of Delivery”") shall be determined by the Representatives, but shall not be later than seven full business days nor earlier than two full business days after the exercise of said option, nor in any event prior to the Closing Time, as hereinafter defined, unless otherwise agreed upon by the Representatives Representatives, the Company and the Company or the Operating Partnership, as the case may beSelling Stockholders. If the option is exercised as to all or any portion of the Option Securities, each of the Underwriters, acting severally and not jointly, will purchase that proportion of the total number of Option Securities then being purchased which the number of Initial Underwritten Securities each such Underwriter has severally agreed to purchase as set forth in Schedule A opposite the applicable Terms Agreement name of such Underwriter bears to the total number of Initial Underwritten Securities (except as otherwise provided in the applicable Terms Pricing Agreement), subject in each case to such adjustments as the Representatives in their Merrxxx Xxxcx xx its discretion shall make to eliminate any sales or purchases of fractional Underwritten interests, plus any additional number of Option Securities which such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereof. If the option is exercised as to all or any portion of the Option Security, each Selling Stockholder, granting such option acting severally and not jointly, will sell that proportion of the total number of Option Securities then being purchased which is the ratio of the number of Option Securities set forth opposite the name of such Selling Stockholder on Schedule B bears to the total number of Option Securities.
(c) Payment of the purchase price for, and delivery of certificates for, for the Initial Underwritten Securities to be purchased by the Underwriters shall be made at the offices office of Xxxxxxxx Chance US LLPSkadden, 00 Xxxx 00xx Arps, Slate, Meagxxx & Xlom, 000 Xxxxx Xxxxx Xxxxxx, Xxx XxxxXxxxxxx, Xxx Xxxx 00000Xxxxxxxxxx, or xx at such other place as shall be agreed upon by the Representatives Representatives, the Selling Stockhold- 12 13 ers and the Company or the Operating Partnership, as the case may beCompany, at 10:00 7:00 A.M. California time on the fourth business day (or the third business day if required under Rule 15c6-1 of the 1934 Act, or (unless postponed in accordance with the provisions of Section 10) following the date after execution of the applicable Terms Agreement Pricing Agreement, or at such other time not later than ten business days after such date as shall be agreed upon by the Representatives Representatives, the Selling Stockholders and the Company (such time and date of payment and delivery being herein called the “"Closing Time”"). Payment shall be made to the respective Selling Stockholders by certified or official bank check or checks drawn in New York Clearing House funds or similar next day funds payable to the order of the respective Selling Stockholders, against delivery to the Representatives at Merrxxx Xxxxx'x Xxxld Headquarters, Nortx Xxxxx, Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, xxr the respective accounts of the Underwriters of certificates for the Securities to be purchased by them. Certificates, if any, for the Securities shall be in such denominations and registered in such names as the Representatives may request in writing, of the Custodian on behalf of the Selling Stockholders, at least two business days before the Closing Time. It is understood that each Underwriter has authorized the Representatives, for their account, to accept delivery of, receipt for, and make payment of the purchase price for, the Securities which it has agreed to purchase. Merrxxx Xxxcx, xxdividually and not as representative of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Securities to be purchased by any Underwriter whose check has not been received by the Closing Time, but such payment shall not relieve such Underwriter from its obligations hereunder. The certificates, if any, for the Securities will be made available, by the Custodian on behalf of the Selling Stockholders, for examination and packaging by the Representatives not later than 10:00 A.M. on the last business day prior to the Closing Time at Merrxxx Xxxxx'x Xxxld Headquarters, Nortx Xxxxx, Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
(d) In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates for, for such Option Securities shall be made at the above-mentioned offices of Xxxxxxxx Chance US LLPSkadden, or Arps, Slate, Meagxxx & Xlom, xx at such other place as shall be agreed upon by the Representatives Representatives, the Selling Stockholders granting the option for the Option Securities and the Company or the Operating Partnership, as the case may beCompany, on each Date of Delivery as specified in the notice from the Representatives to the CompanyCompany and the Selling Stockholders granting the option for the Option Securities. Payment for the Underwritten Securities shall be made to the Company respective Selling Stockholders by certified or official bank check or checks drawn in New York Clearing House funds or similar next day funds payable to the Operating Partnership, as the case may be, by wire transfer order of immediately available funds to a bank account designated by the Company or the Operating Partnership, as the case may besuch Selling Stockholders, against delivery to the Representatives for at the respective above mentioned offices of Merrxxx Xxxcx xxx such accounts of the Underwriters of certificates for the Underwritten Option Securities to be purchased by them. Certificates for the Underwritten Securities and the Option Securities, if any, shall be in such denominations and registered in such names as the Representatives may request in writing of the Custodian at least two business days before the Closing Time or the relevant Date of Delivery, as the case may be. It is understood that each Underwriter has authorized the Representatives, for its accounttheir accounts, to accept delivery of, receipt for, and make payment of the purchase price for, the Underwritten Securities and for the Option Securities, if any, which it has agreed to purchase. The RepresentativesMerrxxx Xxxcx, individually xxdividually and not as representatives representative of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Underwritten Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have not been received by the Closing Time or the relevant Date of Delivery, as the case may be, but any such payment shall not relieve such Underwriter from its obligations hereunder. The certificates for the Initial Securities and the Option Securities, if any, will be made available for examination and packaging by the Representatives not later than 10:00 A.M. on the last business day prior to the Closing Time or the relevant Date of Delivery, as the case may be, in New York, New York. If authorized by the applicable Terms Agreement, the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company or the Operating Partnership, as the case may be, pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially in the form of Exhibit B hereto with such changes therein as the Company or the Operating Partnership, as the case may be, may approve. As compensation for arranging Delayed Delivery Contracts, the Company or the Operating Partnership, as the case may be, will pay to the Representatives at Closing Time, for the respective accounts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors of the types described in the Prospectus. At the applicable Closing Time, the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery Contracts.the
Appears in 1 contract
Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on On the basis of the representations and warranties herein contained contained, and shall be subject to the terms and conditions herein set forth, the Trust agrees to sell to each Underwriter, severally and not jointly, and each Underwriter, severally and not jointly, agrees to purchase from the Trust, at the price of $50.00 per Preferred Security, the number of Preferred Securities set forth herein or in Schedule A opposite the applicable Terms Agreementname of such Underwriter, plus any additional number of Preferred Securities which such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereof.
(b) In addition, on the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company or the Operating Partnership, as the case may be, may grant, if so provided in the applicable Terms Agreement relating to the Initial Underwritten Securities, Trust hereby grants an option to the Underwriters named in such Terms AgreementUnderwriters, severally and not jointly, to purchase up to the number of Option an additional 300,000 Preferred Securities set forth therein at the same price of $50.00 per Option Security as is applicable to the Initial Underwritten SecuritiesPreferred Security, less an amount per Preferred Security equal to any dividends or distributions declared by the Company and paid or payable on the Initial Underwritten Preferred Securities but not payable on the Option Preferred Securities. Such option, if granted, The option hereby granted will expire 30 days (or such lesser number of days as may be specified in the applicable Terms Agreement) after the Representation Date relating to the Initial Underwritten Securities, date hereof and may be exercised in whole or in part from time to time only for the purpose of covering over-allotments which may be made in connection with the offering and distribution of the Initial Preferred Securities upon notice by the Representatives to the Company or the Operating Partnership, as the case may be, Offerors setting forth the number of Option Preferred Securities as to which the several Underwriters are then exercising the option and the time, time and date and place of payment and delivery for such Option Preferred Securities. Any such time, time and date and place of delivery (a “"Date of Delivery”") shall be determined by the Representatives, but shall not be later than seven full business days nor earlier than two full business days after the exercise of said option, nor in any event prior to the Closing Time, Time (as hereinafter defined) unless otherwise agreed upon by the Representatives and the Company or the Operating Partnership, as the case may beOfferors. If the option is exercised as to all or any portion of the Option Preferred Securities, each of the Underwriters, acting severally and not jointly, will purchase that proportion of the total number of Option Preferred Securities then being purchased which the number of Initial Underwritten Preferred Securities each such Underwriter has severally agreed to purchase as set forth in Schedule A opposite the applicable Terms Agreement name of such Underwriter bears to the total number of Initial Underwritten Securities (except as otherwise provided in the applicable Terms Agreement)Preferred Securities, subject in each case to such adjustments as the Representatives in their discretion shall make to eliminate any sales or purchases of fractional Underwritten Securitiesshares.
(c) Payment of the purchase price for, and delivery of the certificates forevidencing, the Initial Underwritten Preferred Securities to be purchased by the Underwriters shall be made at the offices office of Xxxxxxxx Chance US LLPthe Company in Phoenix, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000Arizona, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may beOfferors, at 10:00 A.M. 9:00 a.m. (Eastern time) on the fourth third (or fourth, if the pricing occurs after 4:30 p.m. (Eastern time) on any given day) business day after the date hereof (or the third business day if required under Rule 15c6-1 of the 1934 Act, or unless postponed in accordance with the provisions of Section 10) following the date of the applicable Terms Agreement 10 hereof), or at such other time not later than ten business days after such date as shall be agreed upon by the Representatives and the Company Offerors (such time and date of payment and delivery being herein called the “"Closing Time”"). In addition, in the event that any or all of the Option Preferred Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates for, such Option Securities shall be made at the above-mentioned offices of Xxxxxxxx Chance US LLP, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, on each Date of Delivery as specified in the notice from the Representatives to the Company. Payment for the Underwritten Securities shall be made to the Company or the Operating Partnership, as the case may be, by wire transfer of immediately available funds to a bank account designated by the Company or the Operating Partnership, as the case may be, against delivery to the Representatives for the respective accounts of the Underwriters of the Underwritten Securities to be purchased by them. Certificates for the Underwritten Securities and the Option Securities, if any, shall be in such denominations and registered in such names as the Representatives may request in writing at least two business days before the Closing Time or the relevant Date of Delivery, as the case may be. It is understood that each Underwriter has authorized the Representatives, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Underwritten Securities and the Option Securities, if any, which it has agreed to purchase. The Representatives, individually and not as representatives of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Underwritten Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have not been received by the Closing Time or the relevant Date of Delivery, as the case may be, but any such payment shall not relieve such Underwriter from its obligations hereunder. The certificates for the Initial Securities and the Option Securities, if any, will be made available for examination and packaging by the Representatives not later than 10:00 A.M. on the last business day prior to the Closing Time or the relevant Date of Delivery, as the case may be, in New York, New York. If authorized by the applicable Terms Agreement, the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company or the Operating Partnership, as the case may be, pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially in the form of Exhibit B hereto with such changes therein as the Company or the Operating Partnership, as the case may be, may approve. As compensation for arranging Delayed Delivery Contracts, the Company or the Operating Partnership, as the case may be, will pay to the Representatives at Closing Time, for the respective accounts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors of the types described in the Prospectus. At the applicable Closing Time, the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery Contracts.the
Appears in 1 contract
Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on On the basis of the representations and warranties herein contained and shall be subject to the terms and conditions herein set forth, the Company agrees to sell to each Underwriter, severally and not jointly, and each Underwriter, severally and not jointly, agrees to purchase from the Company, at the price per share set forth herein or in Schedule II, the applicable Terms Agreementnumber of Initial Securities set forth in Schedule I opposite the name of such Underwriter, plus any additional number of Initial Securities which such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereof.
(b) In addition, on the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company or the Operating Partnership, as the case may be, may grant, if so provided in the applicable Terms Agreement relating to the Initial Underwritten Securities, hereby grants an option to the Underwriters named in such Terms AgreementUnderwriters, severally and not jointly, to purchase up to an additional 300,000 Preferred Shares at the number of Option Securities price per share set forth therein at the same price per Option Security as is applicable to the Initial Underwritten Securities, less an amount equal to any dividends or distributions declared by the Company and paid or payable on the Initial Underwritten Securities but not payable on the Option Securitiesin Schedule II. Such option, if granted, The option hereby granted will expire 30 days (or such lesser number of days as may be specified in the applicable Terms Agreement) after the Representation Date relating to the Initial Underwritten Securitiesdate hereof, and may be exercised in whole or in part from time to time only for the purpose of covering over-allotments that may be made in connection with the offering and distribution of the Initial Securities upon notice by the Representatives to the Company or the Operating Partnership, as the case may be, setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time, date and place of payment and delivery for such Option Securities. Any such time, time and date of payment and place of delivery (each, a “"Date of Delivery”") shall be determined by the Representatives, but shall not be later than seven full business days nor earlier than two full business days after the exercise of said option, nor in any event prior to the Closing Time, unless otherwise agreed upon by the Representatives and the Company or the Operating Partnership, as the case may beCompany. If the option is exercised as to all or any portion of the Option Securities, each of the Underwriters, acting severally and not jointly, will purchase that proportion of the total number of Option Securities then being purchased which that the number of Initial Underwritten Securities each such Underwriter has severally agreed to purchase as set forth in Schedule I opposite the applicable Terms Agreement name of such Underwriter bears to the total number of Initial Underwritten Securities (except as otherwise provided in the applicable Terms Agreement)Securities, subject to such adjustments as the Representatives in their discretion shall make to eliminate any sales or purchases of a fractional Underwritten number of Option Securities.
(c) Payment of the purchase price for, and delivery of certificates forof, the Initial Underwritten Securities to be purchased by the Underwriters shall be made at the offices of Xxxxxxxx Chance US LLPXxxxx, 00 Xxxx 00xx Brown & Xxxxx, 000 Xxxxx XxXxxxx Xxxxxx, Xxx XxxxXxxxx 0000, Xxx Xxxx Xxxxxxx, Xxxxxxxx 00000-0000, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may beCompany, at 10:00 9:00 A.M. (Eastern time) on the fourth third (fourth, if the pricing occurs after 4:30 P.M. (Eastern time) on any given day) business day after the date hereof (or the third business day if required under Rule 15c6-1 of the 1934 Act, or unless postponed in accordance with the provisions of Section 10) following the date of the applicable Terms Agreement 10 hereof), or at such other time not later than ten business days after such date as shall be agreed upon by the Representatives and the Company (such time and date of payment and delivery being herein called the “"Closing Time”"). In addition, in the event that the Underwriters have exercised their option, if any, to purchase any or all of the Option Securities are purchased by the UnderwritersSecurities, payment of the purchase price for, and delivery of certificates for, such Option Securities shall be made at the above-mentioned offices of Xxxxxxxx Chance US LLPXxxxx, Brown & Xxxxx, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may beCompany, on each the relevant Date of Delivery as specified in the notice from the Representatives to the Company. Payment for the Underwritten Securities shall be made to the Company or the Operating Partnership, as the case may be, by wire transfer of immediately available funds to a bank account designated by the Company or the Operating Partnership, as the case may beCompany, against delivery to the Representatives for the respective accounts of the Underwriters of the Underwritten Securities to be purchased by them. Certificates for the Underwritten Securities and the Option Securities, if any, shall be in such denominations and registered in such names as the Representatives may request in writing at least two business days before the Closing Time or the relevant Date of Delivery, as the case may be. It is understood that each Underwriter has authorized the RepresentativesXxxxxxx Xxxxx, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Underwritten Securities and the Option Securities, if any, which that it has severally agreed to purchase. The RepresentativesXxxxxxx Xxxxx, individually and not as representatives representative of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Underwritten Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have not been received by the Closing Time or the relevant Date of Delivery, as the case may be, but any such payment shall not relieve such Underwriter from its obligations hereunder. .
(d) The Securities or certificates for the Initial Securities and the Option Securities, if anyas applicable, will shall be made available for examination in such denominations and packaging by registered in such names as the Representatives not later than 10:00 A.M. on the last may request in writing at least one full business day prior to the Closing Time or the relevant Date of Delivery, as the case may be. The Securities or certificates for the Securities, in New Yorkas applicable, New York. If authorized will be made available for examination and packaging by the applicable Terms Agreement, Representatives in The City of New York not later than 10:00 A.M. (Eastern time) on the Underwriters named therein may solicit offers business day prior to purchase Underwritten Securities from the Company Closing Time or the Operating Partnershiprelevant Date of Delivery, as the case may be, pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially in the form of Exhibit B hereto with such changes therein as the Company or the Operating Partnership, as the case may be, may approve. As compensation for arranging Delayed Delivery Contracts, the Company or the Operating Partnership, as the case may be, will pay to the Representatives at Closing Time, for the respective accounts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors of the types described in the Prospectus. At the applicable Closing Time, the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery Contracts.
Appears in 1 contract
Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on the basis of the representations and warranties herein contained and shall be subject to the terms and conditions set forth herein or in the applicable Terms Agreement.
(b) In addition, on On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company or the Operating Partnership, as the case may be, may grant, if so provided in the applicable Terms Agreement relating Trust agrees to the Initial Underwritten Securities, an option sell to the Underwriters named in such Terms Agreementeach Underwriter, severally and not jointly, to purchase up to the number of Option Securities set forth therein at the same price per Option Security as is applicable to the Initial Underwritten Securitiesand each Underwriter, less an amount equal to any dividends or distributions declared by the Company and paid or payable on the Initial Underwritten Securities but not payable on the Option Securities. Such option, if granted, will expire 30 days (or such lesser number of days as may be specified in the applicable Terms Agreement) after the Representation Date relating to the Initial Underwritten Securities, and may be exercised in whole or in part from time to time upon notice by the Representatives to the Company or the Operating Partnership, as the case may be, setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time, date and place of payment and delivery for such Option Securities. Any such time, date and place of delivery (a “Date of Delivery”) shall be determined by the Representatives, but shall not be later than seven full business days nor earlier than two full business days after the exercise of said option, nor in any event prior to the Closing Time, unless otherwise agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be. If the option is exercised as to all or any portion of the Option Securities, each of the Underwriters, acting severally and not jointly, will purchase that proportion of the total number of Option Securities then being purchased which the number of Initial Underwritten Securities each such Underwriter has severally agreed agrees to purchase as from the Trust, at the price per security set forth in the applicable Terms Agreement bears to Schedule B, the total number of Initial Underwritten Capital Securities set forth in Schedule A opposite the name of such Underwriter (except as otherwise provided in the applicable Terms AgreementSchedule B), subject plus any additional number of Capital Securities that such Underwriter may become obligated to such adjustments as purchase pursuant to the provisions of Section 9 hereof. The purchase price per security to be paid by the several Underwriters for the Capital Securities shall be an amount equal to the initial public offering price. The initial public offering price per Capital Security shall be a fixed price to be determined by agreement between the Underwriter and the Offerors. The initial public offering price and the purchase price are set forth in Schedule B. As compensation to the Underwriters for their commitments hereunder and in view of the fact that the proceeds of the sale of the Capital Securities will be used to purchase the Junior Subordinated Notes of the Company, the Company hereby agrees to pay at Closing Time directly to the Underwriters, a commission per Capital Security determined by agreement between the Representatives and the Company for the Capital Securities to be delivered by the Trust hereunder at Closing Time. The commission is set forth in their discretion shall make to eliminate any sales or purchases of fractional Underwritten Securities.Schedule B.
(cb) Payment of the purchase price for, and delivery of certificates for, the Initial Underwritten Capital Securities to be purchased by the Underwriters shall be made at the offices office of Xxxxxxxx Chance US Stroock & Stroock & Xxxxx LLP, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as shall be agreed upon by the Representatives Representatives, the Company and the Company or the Operating Partnership, as the case may beTrust, at 10:00 A.M. New York time on the fourth business day (or the third business day if required under Rule 15c6-1 of the 1934 Actday, or (unless postponed in accordance with the provisions of Section 10) following 8) after the date of the applicable Terms Agreement hereof, or at such other time not later than ten business days after such date as shall be agreed upon by the Representatives Representatives, the Trust and the Company (such time and date of payment and delivery being herein called the “"Closing Time”"). In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates for, such Option Securities shall be made at the above-mentioned offices of Xxxxxxxx Chance US LLP, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, on each Date of Delivery as specified in the notice from the Representatives to the Company. Payment for the Underwritten Securities shall be made to the Company or the Operating Partnership, as the case may be, Trust by wire transfer or certified or official bank check or similar same day funds payable to the order of immediately available funds the Trust to a bank an account designated by the Company or the Operating Partnership, as the case may beTrust, against delivery to the Representatives for the respective accounts of the Underwriters of certificates for the Underwritten Capital Securities to be purchased by them. Certificates Unless otherwise agreed, certificates for the Underwritten Capital Securities and the Option Securities, if any, shall be in the form set forth in the Declaration, and such denominations certificates shall be deposited with a custodian (the "Custodian") for The Depository Trust Company ("DTC") and registered in such names as the Representatives may request in writing at least two business days before the Closing Time or the relevant Date name of DeliveryCede & Co., as the case may be. It is understood that each Underwriter has authorized the Representatives, nominee for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Underwritten Securities and the Option Securities, if any, which it has agreed to purchase. The Representatives, individually and not as representatives of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Underwritten Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have not been received by the Closing Time or the relevant Date of Delivery, as the case may be, but any such payment shall not relieve such Underwriter from its obligations hereunder. The certificates for the Initial Securities and the Option Securities, if any, will be made available for examination and packaging by the Representatives not later than 10:00 A.M. on the last business day prior to the Closing Time or the relevant Date of Delivery, as the case may be, in New York, New York. If authorized by the applicable Terms Agreement, the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company or the Operating Partnership, as the case may be, pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially in the form of Exhibit B hereto with such changes therein as the Company or the Operating Partnership, as the case may be, may approve. As compensation for arranging Delayed Delivery Contracts, the Company or the Operating Partnership, as the case may be, will pay to the Representatives at Closing Time, for the respective accounts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors of the types described in the ProspectusDTC. At the applicable Closing Time, the Company will pay, or cause to be paid, the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by commission payable at such time to the Underwriters and previously approved under this Section 2 hereof by the Company wire transfer or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity certified or performance of Delayed Delivery Contracts. The Representatives shall submit official bank check or checks payable to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery Contractssame day funds.
Appears in 1 contract
Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on the basis of the representations and warranties herein contained and shall be subject to the terms and conditions set forth herein or in the applicable Terms Agreement.
(b) In addition, on On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company or the Operating Partnershipagrees to sell to each Underwriter, as the case may be, may grant, if so provided in the applicable Terms Agreement relating to the Initial Underwritten Securities, an option to the Underwriters named in such Terms Agreementand each Underwriter agrees, severally and not jointly, to purchase up to from the number Company, at the purchase price specified in Schedule B hereto, the amount of Option Securities set forth therein at opposite the same price per Option Security as is applicable name of such Underwriter in Schedule A plus any additional principal amount of Securities such Underwriter may become obligated to purchase pursuant to the Initial Underwritten Securities, less an amount equal to any dividends or distributions declared by the provisions of Section 11 hereof. The Company and paid or payable on the Initial Underwritten Securities but not payable on the Option Securities. Such option, if granted, will expire 30 days (or such lesser number of days as may be specified in the applicable Terms Agreement) after the Representation Date relating to the Initial Underwritten Securities, and may be exercised in whole or in part from time to time upon notice by the Representatives to the Company or the Operating Partnership, as the case may be, setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time, date and place of payment and delivery for such Option Securities. Any such time, date and place of delivery (a “Date of Delivery”) shall be determined by the Representatives, but shall not be later than seven full business days nor earlier than two full business days after the exercise of said option, nor in obligated to deliver any event prior to the Closing Time, unless otherwise agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be. If the option is exercised as to all or any portion of the Option Securities, each of Securities except upon payment for all the Underwriters, acting severally and not jointly, will purchase Securities to be purchased as provided herein. It is understood that proportion of you propose to offer the total number of Option Securities then being purchased which the number of Initial Underwritten Securities each such Underwriter has severally agreed to purchase for sale as set forth in the applicable Terms Agreement bears to Disclosure Package and the total number of Initial Underwritten Securities (except as otherwise provided in the applicable Terms Agreement), subject to such adjustments as the Representatives in their discretion shall make to eliminate any sales or purchases of fractional Underwritten SecuritiesProspectus.
(cb) Payment of the purchase price for, and delivery of the certificates for, the Initial Underwritten Securities to be purchased by the Underwriters shall be made at the offices office of Xxxxxxx Xxxxxxx & Xxxxxxxx Chance US LLP, 00 Xxxx 00xx 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may beCompany, at 10:00 A.M. 9:30 a.m. (New York City time) on the fourth second business day after the date hereof (or the third business day if required under Rule 15c6-1 of the 1934 Act, or unless postponed in accordance with the provisions of Section 10) following the date of the applicable Terms Agreement 11), or at such other time not later than ten business days after such date as shall be agreed upon by the Representatives and the Company (such time and date of payment and delivery being herein called the “Closing Time”). In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates for, such Option Securities shall be made at the above-mentioned offices of Xxxxxxxx Chance US LLP, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, on each Date of Delivery as specified in the notice from the Representatives to the Company. .
(c) Payment for the Underwritten Securities shall be made to the Company or the Operating Partnership, as the case may be, by wire transfer of immediately available funds to a bank account designated by the Company or the Operating Partnership, as the case may beCompany, against book-entry delivery through the facilities of The Depository Trust Company (“DTC”) to the Representatives for the respective accounts of the Underwriters of the Underwritten Securities to be purchased by them. Certificates for the Underwritten Securities and the Option Securities, if any, shall be in such denominations and registered in such names as the Representatives may request in writing at least two business days before the Closing Time or the relevant Date of Delivery, as the case may be. It is understood that each Underwriter has authorized the Representatives, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Underwritten Securities and the Option Securities, if any, which it has agreed to purchase. The RepresentativesEach of Deutsche Bank Securities Inc., X.X. Xxxxxx Securities LLC, Scotia Capital (USA) Inc. and Xxxxx Fargo Securities, LLC, individually and not as representatives representative of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Underwritten Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have not been received by the Closing Time or the relevant Date of Delivery, as the case may beTime, but any such payment shall not relieve such Underwriter from its obligations hereunder. .
(d) The certificates for the Initial Securities and the Option Securities, if any, will to be made available for examination and packaging by the Representatives not later than 10:00 A.M. on the last business day prior to the Closing Time or the relevant Date of Delivery, as the case may be, in New York, New York. If authorized by the applicable Terms Agreement, the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company or the Operating Partnership, as the case may be, so delivered pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially this Agreement shall be issued in the form of Exhibit B hereto one or more global securities which shall be deposited with, or in accordance with such changes therein as the Company or the Operating Partnershipinstructions of, as the case may be, may approve. As compensation for arranging Delayed Delivery Contracts, the Company or the Operating Partnership, as the case may be, will pay to the Representatives at Closing Time, for the respective accounts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified DTC and registered in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors name of the types described in the Prospectus. At the applicable Closing Timeits nominee, the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery Contracts.Cede & Co.
Appears in 1 contract
Samples: Underwriting Agreement (Fedex Corp)
Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on the basis of the representations and warranties herein contained and shall be subject to the terms and conditions set forth herein or in the applicable Terms Agreement.
(b) In addition, on On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company or the Operating Partnership, as the case may be, may grant, if so provided in the applicable Terms Agreement relating Seller agrees to the Initial Underwritten Securities, an option sell to the Underwriters named in such Terms Agreementeach Underwriter and each Underwriter agrees, severally and not jointly, to purchase up to from the number of Option Securities Seller, the Underwritten Notes set forth therein opposite its name in the Pricing Agreement at the same price per Option Security as is applicable respective prices to the Initial Underwritten Securities, less an amount equal to any dividends or distributions declared by the Company and paid or payable on the Initial Underwritten Securities but not payable on the Option Securities. Such option, if granted, will expire 30 days (or such lesser number of days as may be specified in the applicable Terms Agreement) after the Representation Date relating to the Initial Underwritten Securities, and may be exercised in whole or in part from time to time upon notice by the Representatives to the Company or the Operating Partnership, as the case may be, setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time, date and place of payment and delivery for such Option Securities. Any such time, date and place of delivery (a “Date of Delivery”) shall be determined by agreement between the RepresentativesSeller and you, but which prices shall be set forth in the Pricing Agreement. In the event that such prices have not be later than seven full been agreed upon and the Pricing Agreement has not been executed and delivered by all parties thereto by the close of business days nor earlier than two full on the fourth business days after day following the exercise date of said optionthis Agreement, nor in this Agreement shall terminate forthwith, without liability of any event prior party to the Closing Timeany other party, unless otherwise agreed upon to by the Representatives Seller and the Company or the Operating Partnership, as the case may be. If the option is exercised as to all or any portion of the Option Securities, each of the Underwriters, acting severally and not jointly, will purchase that proportion of the total number of Option Securities then being purchased which the number of Initial Underwritten Securities each such Underwriter has severally agreed to purchase as set forth in the applicable Terms Agreement bears to the total number of Initial Underwritten Securities (except as otherwise provided in the applicable Terms Agreement), subject to such adjustments as the Representatives in their discretion shall make to eliminate any sales or purchases of fractional Underwritten Securitiesyou.
(cb) Payment of the purchase price for, and delivery of certificates forof, the Initial Underwritten Securities to be purchased by the Underwriters Notes shall be made at the offices office of Xxxxxxxx Chance US Shearman & Sterling LLP, 00 Xxxx 00xx 500 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, Seller at 10:00 A.M. on the fourth business day (or the third business day if required under Rule 15c6-1 of the 1934 Act______ __, 20XX, or unless postponed in accordance with the provisions of Section 10) following the date of the applicable Terms Agreement or at such other time as shall be agreed upon by the Representatives and the Company Seller (such time and date of payment and delivery being herein called “Closing Time” and such date of delivery being called the “Closing TimeDate”). In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates for, such Option Securities Payment shall be made at the above-mentioned offices of Xxxxxxxx Chance US LLP, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, on each Date of Delivery as specified in the notice from the Representatives to the Company. Payment for the Underwritten Securities shall be made to the Company or the Operating Partnership, as the case may be, by wire transfer of immediately available Seller in same day funds to a bank account designated by the Company or the Operating Partnership, as the case may be, against delivery to the Representatives for the respective accounts of the Underwriters of the Underwritten Securities to be purchased by themNotes to, or at the direction of, the Representatives. Certificates for the The Underwritten Securities and the Option Securities, if any, Notes shall be in such denominations and registered in such names as the Representatives may request in writing at least two business days before the Closing Time or the relevant Date of Delivery, as the case may beTime. It is understood that each Underwriter has authorized the Representatives, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the The Underwritten Securities and the Option Securities, if anyNotes, which it has agreed to purchase. The Representatives, individually and not as representatives of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Underwritten Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have not been received by the Closing Time or the relevant Date of Delivery, as the case may be, but any such payment shall not relieve such Underwriter from its obligations hereunder. The certificates for the Initial Securities and the Option Securities, if anyin temporary form, will be made available for examination and packaging by the Representatives not later than 10:00 A.M. on the last business day prior to Closing Time. The Underwritten Notes will be represented initially by Underwritten Notes registered in the Closing Time or the relevant Date name of Delivery, as the case may be, in New York, New York. If authorized by the applicable Terms AgreementCede & Co., the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company or the Operating Partnership, as the case may be, pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially in the form nominee of Exhibit B hereto with such changes therein as the Company or the Operating Partnership, as the case may be, may approve. As compensation for arranging Delayed Delivery Contracts, the Company or the Operating Partnership, as the case may be, will pay to the Representatives at Closing Time, for the respective accounts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors of the types described in the Prospectus. At the applicable Closing Time, the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery ContractsDepository Trust Company.
Appears in 1 contract
Samples: Underwriting Agreement (John Deere Receivables, Inc.)
Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on the basis of the representations and warranties herein contained and shall be subject to the terms and conditions set forth herein or in the applicable Terms Agreement.
(b) In addition, on On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company or the Operating Partnershipagrees to sell to each Underwriter, as the case may be, may grant, if so provided in the applicable Terms Agreement relating to the Initial Underwritten Securities, an option to the Underwriters named in such Terms Agreementand each Underwriter agrees, severally and not jointly, to purchase up to from the number Company, at the purchase price specified in Schedule B hereto, the amount of Option Securities set forth therein at opposite the same price per Option Security as is applicable name of such Underwriter in Schedule A plus any additional principal amount of Securities such Underwriter may become obligated to purchase pursuant to the Initial Underwritten Securities, less an amount equal to any dividends or distributions declared by the provisions of Section 11 hereof. The Company and paid or payable on the Initial Underwritten Securities but not payable on the Option Securities. Such option, if granted, will expire 30 days (or such lesser number of days as may be specified in the applicable Terms Agreement) after the Representation Date relating to the Initial Underwritten Securities, and may be exercised in whole or in part from time to time upon notice by the Representatives to the Company or the Operating Partnership, as the case may be, setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time, date and place of payment and delivery for such Option Securities. Any such time, date and place of delivery (a “Date of Delivery”) shall be determined by the Representatives, but shall not be later than seven full business days nor earlier than two full business days after the exercise of said option, nor in obligated to deliver any event prior to the Closing Time, unless otherwise agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be. If the option is exercised as to all or any portion of the Option Securities, each of Securities except upon payment for all the Underwriters, acting severally and not jointly, will purchase Securities to be purchased as provided herein. It is understood that proportion of you propose to offer the total number of Option Securities then being purchased which the number of Initial Underwritten Securities each such Underwriter has severally agreed to purchase for sale as set forth in the applicable Terms Agreement bears to Disclosure Package and the total number of Initial Underwritten Securities (except as otherwise provided in the applicable Terms Agreement), subject to such adjustments as the Representatives in their discretion shall make to eliminate any sales or purchases of fractional Underwritten SecuritiesProspectus.
(cb) Payment of the purchase price for, and delivery of the certificates for, the Initial Underwritten Securities to be purchased by the Underwriters shall be made at the offices office of Xxxxxxx Xxxxxxx & Xxxxxxxx Chance US LLP, 00 Xxxx 00xx 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may beCompany, at 10:00 A.M. 9:30 a.m. (New York City time) on the fourth business day (or the third business day if required under Rule 15c6-1 of after the 1934 Act, or date hereof (unless postponed in accordance with the provisions of Section 10) following the date of the applicable Terms Agreement 11), or at such other time not later than ten business days after such date as shall be agreed upon by the Representatives and the Company (such time and date of payment and delivery being herein called the “Closing Time”). In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates for, such Option Securities shall be made at the above-mentioned offices of Xxxxxxxx Chance US LLP, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, on each Date of Delivery as specified in the notice from the Representatives to the Company. .
(c) Payment for the Underwritten Securities shall be made to the Company or the Operating Partnership, as the case may be, by wire transfer of immediately available funds to a bank account designated by the Company or the Operating Partnership, as the case may beCompany, against book-entry delivery through the facilities of The Depository Trust Company to the Representatives for the respective accounts of the Underwriters of the Underwritten Securities to be purchased by them. Certificates for the Underwritten Securities and the Option Securities, if any, shall be in such denominations and registered in such names as the Representatives may request in writing at least two business days before the Closing Time or the relevant Date of Delivery, as the case may be. It is understood that each Underwriter has authorized the Representatives, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Underwritten Securities and the Option Securities, if any, which it has agreed to purchase. The RepresentativesSunTrust, individually and not as representatives representative of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Underwritten Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have not been received by the Closing Time or the relevant Date of Delivery, as the case may beTime, but any such payment shall not relieve such Underwriter from its obligations hereunder. .
(d) The certificates for the Initial Securities and the Option Securities, if any, will to be made available for examination and packaging by the Representatives not later than 10:00 A.M. on the last business day prior to the Closing Time or the relevant Date of Delivery, as the case may be, in New York, New York. If authorized by the applicable Terms Agreement, the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company or the Operating Partnership, as the case may be, so delivered pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially this Agreement shall be issued in the form of Exhibit B hereto one or more global securities which shall be deposited with, or in accordance with such changes therein as the instructions of, The Depository Trust Company or the Operating Partnership, as the case may be, may approve. As compensation for arranging Delayed Delivery Contracts, the Company or the Operating Partnership, as the case may be, will pay to the Representatives at Closing Time, for the respective accounts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified and registered in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors name of the types described in the Prospectus. At the applicable Closing Timeits nominee, the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery Contracts.Cede & Co.
Appears in 1 contract
Samples: Underwriting Agreement (Fedex Corp)
Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on On the basis of the representations and warranties herein contained and shall be subject to the terms and conditions herein set forth, the Company hereby agrees to sell to the Underwriters, severally and not jointly, the respective numbers of Initial Securities set forth herein opposite the name of the Company in Exhibit B hereto, and each Underwriter, severally and not jointly, agrees to purchase the respective number of Initial Securities set forth opposite the name of such Underwriter on Exhibit A hereto, plus any additional number of Initial Securities which such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereof, subject to such adjustments among the Underwriters as the Representatives in their sole discretion shall make to eliminate any sales or purchases of fractional Securities, in each case at a purchase price of $_________ per share (the applicable Terms Agreement"Purchase Price").
(b) In addition, on the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company or the Operating Partnership, as the case may be, may grant, if so provided in the applicable Terms Agreement relating to the Initial Underwritten Securities, hereby grants an option to the Underwriters named in such Terms AgreementUnderwriters, severally and not jointly, to purchase up to the number of ________ Option Securities set forth therein at the same a price per Option Security as is applicable share equal to the Initial Underwritten Securities, less Purchase Price referred to in Section 2(a) above; provided that the price per share for any Option Securities shall be reduced by an amount per share equal to any dividends or distributions declared paid by the Company and paid or payable on the Initial Underwritten Securities but not payable on the such Option Securities. Such option, if granted, The option hereby granted will expire 30 days at 11:59 P.M. (or such lesser number of days as may be specified in New York City time) on the applicable Terms Agreement) 30th day after the Representation Date relating to the Initial Underwritten Securities, date hereof and may be exercised on up to three occasions in whole or in part from time to time only for the purpose of covering over-allotments which may be made in connection with the offering and distribution of the Initial Securities upon notice by the Representatives to the Company or the Operating Partnership, as the case may be, setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time, time and date and place of payment and delivery for such Option Securities. Any such time, time and date and place of delivery (a “Date of Delivery”an "Option Closing Date") shall be determined by the Representatives, but shall not be later than seven full business days nor earlier than two full business days after the exercise of said option, nor in any event prior to the Closing Time, unless otherwise agreed upon by the Representatives and the Company or the Operating Partnership, as the case may beDate. If the option is exercised as to all or any portion of the Option Securities, the Company will sell to the Underwriters that proportion of the total number of Option Securities then being purchased which the number of Option Securities set forth in Section 2(b), and each of the Underwriters, acting severally and not jointly, will purchase that proportion of the total number of Option Securities then being purchased which the number of Initial Underwritten Securities each such Underwriter has severally agreed to purchase as set forth in Exhibit A opposite the applicable Terms Agreement name of such Underwriter, plus any additional number of Initial Securities which such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereof, bears to the total number of Initial Underwritten Securities (except as otherwise provided in the applicable Terms Agreement)Securities, subject in each case to such adjustments as the Representatives in their discretion shall make to eliminate any sales or purchases of fractional Underwritten Securitiesshares.
(c) Payment of the purchase price for, and delivery of certificates for, the Initial Underwritten Securities to be purchased by the Underwriters shall be made at the offices of Xxxxxxxx Cxxxxxxx Chance US LLP, 00 30 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may beCompany, at 10:00 A.M. (New York City time) on the fourth business day ____________, 2010 (or the third business day if required under Rule 15c6-1 of the 1934 Act, or unless postponed in accordance with the provisions of Section 10) following the date of the applicable Terms Agreement ), or at such other time not later than ten business days after such date as shall be agreed upon by the Representatives and the Company (such time and date of payment and delivery being herein called the “"Closing Time”Date"). In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates for, such Option Securities shall be made at 10:00 A.M. (New York City time) at the above-mentioned offices of Xxxxxxxx Chance US LLPoffices, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may beCompany, on each Option Closing Date of Delivery as specified in the notice from the Representatives to the Company. Payment for the Underwritten Securities shall be made to the Company or the Operating Partnership, as the case may be, by wire transfer of immediately available funds to a single bank account designated by the Company or the Operating Partnership, as the case may be, against delivery to the Representatives for the respective accounts of the Underwriters of the Underwritten Securities to be purchased by them. Certificates for the Underwritten Securities and the Option Securities, if any, shall be in such denominations and registered in such names as the Representatives may request in writing at least two business days before the Closing Time or the relevant Date of Delivery, as the case may be. It is understood that each Underwriter has authorized the Representatives, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Underwritten Initial Securities and the Option Securities, if any, which it has agreed to purchase. The Each of the Representatives, individually and not as representatives representative of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Underwritten Initial Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have not been received by the Closing Time Date or the relevant Date of DeliveryOption Closing Date, as the case may be, but any such payment shall not relieve such Underwriter from its obligations hereunder.
(d) Certificates for the Initial Securities and the Option Securities, if any, shall be in such denominations and registered in such names as the Representatives may request in writing at least one full business day before the Closing Date or the relevant Option Closing Date, as the case may be. The certificates for the Initial Securities and the Option Securities, if any, will be made available for examination and packaging by the Representatives in The City of New York not later than 10:00 A.M. noon (New York time) on the last business day prior to the Closing Time Date or the relevant Date of DeliveryOption Closing Date, as the case may be, in New York, New York. If authorized by the applicable Terms Agreement, the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company or the Operating Partnership, as the case may be, pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially in the form of Exhibit B hereto with such changes therein as the Company or the Operating Partnership, as the case may be, may approve. As compensation for arranging Delayed Delivery Contracts, the Company or the Operating Partnership, as the case may be, will pay to the Representatives at Closing Time, for the respective accounts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors of the types described in the Prospectus. At the applicable Closing Time, the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery Contracts.
Appears in 1 contract
Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on the basis of the representations and warranties herein contained and shall be subject to the terms and conditions set forth herein or in the applicable Terms Agreement.
(b) In addition, on On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company or the Operating PartnershipTrust agrees to sell to each Underwriter, as the case may be, may grant, if so provided in the applicable Terms Agreement relating to the Initial Underwritten Securities, an option to the Underwriters named in such Terms Agreementand each Underwriter agrees, severally and not jointly, to purchase up to from the number of Option Securities set forth therein Trust, at the same price of $25 per Option Security as is applicable to the Initial Underwritten SecuritiesPreferred Security, less an amount equal to any dividends or distributions declared by the Company and paid or payable on the Initial Underwritten Securities but not payable on the Option Securities. Such option, if granted, will expire 30 days (or such lesser number aggregate of days as may be specified in the applicable Terms Agreement) after the Representation Date relating to the Initial Underwritten Securities, and may be exercised in whole or in part from time to time upon notice by the Representatives to the Company or the Operating Partnership, as the case may be, setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time, date and place of payment and delivery for such Option Securities. Any such time, date and place of delivery (a “Date of Delivery”) shall be determined by the Representatives, but shall not be later than seven full business days nor earlier than two full business days after the exercise of said option, nor in any event prior to the Closing Time, unless otherwise agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be. If the option is exercised as to all or any portion of the Option Securities, each of the Underwriters, acting severally and not jointly, will purchase that proportion of the total number of Option Securities then being purchased which the number of Initial Underwritten Securities each such Underwriter has severally agreed to purchase as set forth in the applicable Terms Agreement bears to the total number of Initial Underwritten 3,000,000 Preferred Securities (except as otherwise provided herein, to be allocated to the several Underwriters in the applicable Terms Agreementnumber of Preferred Securities set forth in Schedule A opposite the name of each such Underwriter).
(b) As compensation to the Underwriters for their commitments hereunder and in view of the fact that the proceeds of the sale of the Preferred Securities will be used to purchase the Subordinated Debt Securities of the Company, subject the Company hereby agrees to pay at Closing Time to the Representatives, for the accounts of the several Underwriters, a commission of $_____ per Preferred Security purchased by the Underwriters by wire transfer of immediately available funds to a bank account designated by the Representatives; provided that such adjustments as commission for sales of ____ or more Preferred Securities to a single purchaser will be $____ per Preferred Security purchased by the Representatives in their discretion shall make to eliminate any sales or purchases of fractional Underwritten SecuritiesUnderwriters.
(c) Payment of the purchase price for, and delivery of certificates for, the Initial Underwritten Preferred Securities to be purchased by the Underwriters shall be made at the offices office of Xxxxxxxx Chance US LLPXxxxxxx Xxxxxxx & Xxxxxxxx, 00 Xxxx 00xx 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may beOfferors, at 10:00 A.M. New York time on the fourth business day (or the third business day if required under Rule 15c6-1 of the 1934 ActApril ___, 1997, or unless postponed in accordance with the provisions of Section 10) following the such later time and date of the applicable Terms Agreement or at not more than two business days after such other time date as shall be agreed upon by the Representatives and the Company Offerors (such time and date of payment and delivery being herein called the “"Closing Time”"). In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates for, such Option Securities shall be made at the above-mentioned offices of Xxxxxxxx Chance US LLP, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, on each Date of Delivery as specified in the notice from the Representatives to the Company. Payment for the Underwritten Preferred Securities purchased by the Underwriters shall be made to the Company or the Operating Partnership, as the case may be, Trust by wire transfer of immediately available funds to a bank account designated by the Company or the Operating Partnership, as the case may beTrust, against delivery to the Representatives for the respective accounts of the Underwriters of certificates for the Underwritten Preferred Securities to be purchased by them. Certificates .
(d) Subject to the terms and provisions of the Declaration, certificates for the Underwritten Preferred Securities and to be purchased by the Option Securities, if any, Underwriters shall be in such denominations and registered in such names as the Representatives Underwriters may request in writing at least two business days before the Closing Time or the relevant Date of Delivery, as the case may be. Time.
(e) It is understood that each Underwriter has authorized the RepresentativesXxxxxxx Xxxxx, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Underwritten Preferred Securities and the Option Securities, if any, which that it has agreed to purchase. The RepresentativesXxxxxxx Xxxxx, individually and not as representatives Representative of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Underwritten Securities or the Option Preferred Securities, if any, to be purchased by any Underwriter whose funds have not been received by the Closing Time or the relevant Date of Delivery, as the case may beTime, but any such payment shall not relieve such Underwriter from its obligations hereunder. The certificates for the Initial Securities and the Option Securities, if any, will be made available for examination and packaging by the Representatives not later than 10:00 A.M. on the last business day prior to the Closing Time or the relevant Date of Delivery, as the case may be, in New York, New York. If authorized by the applicable Terms Agreement, the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company or the Operating Partnership, as the case may be, pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially in the form of Exhibit B hereto with such changes therein as the Company or the Operating Partnership, as the case may be, may approve. As compensation for arranging Delayed Delivery Contracts, the Company or the Operating Partnership, as the case may be, will pay to the Representatives at Closing Time, for the respective accounts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors of the types described in the Prospectus. At the applicable Closing Time, the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery Contracts.
Appears in 1 contract
Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on the basis of the representations and warranties herein contained and shall be subject to the terms and conditions set forth herein or in the applicable Terms Agreement.
(b) In addition, on the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company or the Operating Partnership, as the case may be, may grant, if so provided in the applicable Terms Agreement relating to the Initial Underwritten Securities, an option to the Underwriters named in such Terms Agreement, severally and not jointly, to purchase up to the number of Option Securities set forth therein at the same price per Option Security as is applicable to the Initial Underwritten Securities, less an amount equal to any dividends or distributions declared by the Company and paid or payable on the Initial Underwritten Securities but not payable on the Option Securities. Such option, if granted, will expire 30 days (or such lesser number of days as may be specified in the applicable Terms Agreement) after the Representation Date relating to the Initial Underwritten Securities, and may be exercised in whole or in part from time to time only for the purpose of covering over-allotments which may be made in connection with the offering and distribution of the Initial Securities upon notice by the Representatives to the Company or the Operating Partnership, as the case may be, setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time, date and place of payment and delivery for such Option Securities. Any such time, date and place of delivery (a “"Date of Delivery”") shall be determined by the Representatives, but shall not be later than seven full business days nor earlier than two full business days after the exercise of said option, nor in any event prior to the Closing Time, unless otherwise agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be. If the option is exercised as to all or any portion of the Option Securities, each of the Underwriters, acting severally and not jointly, will purchase that proportion of the total number of Option Securities then being purchased which the number of Initial Underwritten Securities each such Underwriter has severally agreed to purchase as set forth in the applicable Terms Agreement bears to the total number of Initial Underwritten Securities (except as otherwise provided in the applicable Terms Agreement), subject to such adjustments as the Representatives in their discretion shall make to eliminate any sales or purchases of fractional Underwritten Securities.
(c) Payment of the purchase price for, and delivery of certificates for, the Initial Underwritten Securities to be purchased by the Underwriters shall be made at the offices of Xxxxxxxx Chance US LLP& Xxxxxxxx, 00 Xxxx 00xx 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, at 10:00 A.M. on the fourth business day (or the third business day if required under Rule 15c6-1 of the 1934 Act, or unless postponed in accordance with the provisions of Section 10) following the date of the applicable Terms Agreement or at such other time as shall be agreed upon by the Representatives and the Company (such time and date of payment and delivery being herein called the “"Closing Time”"). In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates for, such Option Securities shall be made at the above-mentioned offices of Xxxxxxxx Chance US LLP& Xxxxxxxx, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, on each Date of Delivery as specified in the notice from the Representatives to the Company. Payment for the Underwritten Securities shall be made to the Company or the Operating Partnership, as the case may be, by wire transfer of immediately available funds to a bank account designated by the Company or the Operating Partnership, as the case may be, against delivery to the Representatives for the respective accounts of the Underwriters of the Underwritten Securities to be purchased by them. Certificates for the Underwritten Securities and the Option Securities, if any, shall be in such denominations and registered in such names as the Representatives may request in writing at least two business days before the Closing Time or the relevant Date of Delivery, as the case may be. It is understood that each Underwriter has authorized the Representatives, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Underwritten Securities and the Option Securities, if any, which it has agreed to purchase. The Representatives, individually and not as representatives of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Underwritten Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have not been received by the Closing Time or the relevant Date of Delivery, as the case may be, but any such payment shall not relieve such Underwriter from its obligations hereunder. The certificates for the Initial Securities and the Option Securities, if any, will be made available for examination and packaging by the Representatives not later than 10:00 A.M. on the last business day prior to the Closing Time or the relevant Date of Delivery, as the case may be, in New York, New York. If authorized by the applicable Terms Agreement, the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company or the Operating Partnership, as the case may be, pursuant to delayed delivery contracts (“"Delayed Delivery Contracts”") substantially in the form of Exhibit B hereto with such changes therein as the Company or the Operating Partnership, as the case may be, may approve. As compensation for arranging Delayed Delivery Contracts, the Company or the Operating Partnership, as the case may be, will pay to the Representatives at Closing Time, for the respective accounts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors of the types described in the Prospectus. At the applicable Closing Time, the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery Contracts.
Appears in 1 contract
Samples: Underwriting Agreement (Duke Realty Limited Partnership)
Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on On the basis of the representations and warranties herein contained and shall be subject to the terms and conditions herein set forth, the Company agrees to sell to each Underwriter, severally and not jointly, and each Underwriter, severally and not jointly, agrees to purchase from the Company, at a purchase price of $31.68 per share, the number of Initial Securities set forth herein or in Schedule A opposite the applicable Terms Agreementname of such Underwriter, plus any additional number of Initial Securities which such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereof.
(b) In addition, on the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company or the Operating Partnership, as the case may be, may grant, if so provided in the applicable Terms Agreement relating to the Initial Underwritten Securities, hereby grants an option to the Underwriters named in such Terms Agreementeach Underwriter, severally and not jointly, to purchase up to an additional 2,025,000 shares of Common Stock at the number of price set forth in paragraph (a) above; provided that the purchase price for any Option Securities set forth therein at the same price per Option Security as is applicable to the Initial Underwritten Securities, less shall be reduced by an amount per share equal to any dividends or distributions declared by the Company and paid or payable on the Initial Underwritten Securities but not payable on the such Option Securities. Such option, if granted, will expire 30 days The number of Option Securities to be purchased by each Underwriter shall be the number of Option Securities which bears the same ratio to the aggregate number of Option Securities being purchased as the number of Initial Securities set forth opposite the name of such Underwriter in Schedule A hereto (or such lesser number increased as set forth in Section 10 hereof) bears to the aggregate number of days Initial Securities being purchased from the Company by the several Underwriters, subject, however, to such adjustments to eliminate any fractional Shares as the Representative in its sole discretion shall make. The option hereby granted may be specified in exercised through and including the applicable Terms Agreement) 30th day after the Representation Date relating to the Initial Underwritten Securities, date hereof and may be exercised in whole or in part from time to time upon notice by the Representatives Representative to the Company or the Operating Partnership, as the case may be, setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time, time and date and place of payment and delivery for such Option Securities. Any such time, time and date and place of delivery (a “Date of Delivery”) shall be determined by the RepresentativesRepresentative, but shall not be later than seven full business days nor earlier than two full business days after the exercise of said option, nor in any event prior to the Closing Time, unless otherwise agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be. If the option is exercised as to all or any portion of the Option Securities, each of the Underwriters, acting severally and not jointly, will purchase that proportion of the total number of Option Securities then being purchased which the number of Initial Underwritten Securities each such Underwriter has severally agreed to purchase as set forth in the applicable Terms Agreement bears to the total number of Initial Underwritten Securities (except as otherwise provided in the applicable Terms Agreement), subject to such adjustments as the Representatives in their discretion shall make to eliminate any sales or purchases of fractional Underwritten Securities.
(c) Payment of the purchase price for, and delivery of certificates for, the Initial Underwritten Securities to be purchased by the Underwriters shall be made at the offices office of Xxxxxxxx Chance US & Xxxxxxxx LLP, 00 0000 Xxxxxxx Xxxx 00xx XxxxxxXxxx, Xxxxx 0000, Xxx XxxxXxxxxxx, Xxx Xxxx Xxxxxxxxxx 00000, -0000 or at such other place as shall be agreed upon by the Representatives you and the Company or the Operating Partnership, as the case may beCompany, at 10:00 A.M. 7:00 a.m., California time, on the fourth business day (or the third business day if required under Rule 15c6-1 of the 1934 ActJune 23, 2010, or unless postponed in accordance with the provisions of Section 10) following the date of the applicable Terms Agreement or at such other time not later than ten business days after such date as shall be agreed upon by the Representatives Representative and the Company (such time and date of payment and delivery being herein called the “Closing Time”). In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates for, such Option Securities shall be made at the above-mentioned offices of Xxxxxxxx Chance US LLPoffices, or at such other place as shall be agreed upon by the Representatives Representative and the Company or the Operating Partnership, as the case may beCompany, on each Date of Delivery as specified in the notice from the Representatives Representative to the Company. Payment for the Underwritten Securities shall be made to the Company or the Operating Partnership, as the case may be, by wire transfer of immediately available funds to a bank account designated by the Company or the Operating Partnership, as the case may be, against delivery to the Representatives Representative for the respective accounts of the Underwriters of certificates for the Underwritten Securities to be purchased by them. Certificates for the Underwritten Securities and the Option Securities, if any, shall be in such denominations and registered in such names as the Representatives Representative may request in writing at least two one business days day before the Closing Time or the relevant Date of Delivery, as the case may be. It is understood that each Underwriter has authorized the RepresentativesRepresentative, for its their account, to accept delivery of, receipt for, and make payment of the purchase price for, the Underwritten Securities and the Option Securities, if any, which it such Underwriter has agreed to purchase. The RepresentativesXxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, individually and not as representatives the representative of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Underwritten Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have check has not been received by the Closing Time or the relevant Date of Delivery, as the case may beTime, but any such payment shall not relieve release such Underwriter from its obligations hereunder. The certificates for the Initial Securities and the Option Securities, if any, will be made available for examination and packaging by the Representatives Representative not later than 10:00 A.M. a.m. on the last business day prior to the Closing Time or on the relevant Date of Delivery, as the case may be, in New York, New York. If authorized by the applicable Terms Agreement, the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company or the Operating Partnership, as the case may be, pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially in the form of Exhibit B hereto with such changes therein as the Company or the Operating Partnership, as the case may be, may approve. As compensation for arranging Delayed Delivery Contracts, the Company or the Operating Partnership, as the case may be, will pay to the Representatives at Closing Time, for the respective accounts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors of the types described in the Prospectus. At the applicable Closing Time, the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery Contracts.
Appears in 1 contract
Samples: Underwriting Agreement (Hcp, Inc.)
Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on the basis of the representations and warranties herein contained and shall be subject to the terms and conditions set forth herein or in the applicable Terms Agreement.
(b) In addition, on On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, (i) the Company or the Operating Partnership, as the case may be, may grant, if so provided in the applicable Terms Agreement relating agrees to the Initial Underwritten Securities, an option sell to the Underwriters named in such Terms Agreementeach Underwriter, severally and not jointly, to purchase up to the number of Option Securities set forth therein at the same price per Option Security as is applicable to the Initial Underwritten Securitiesand each Underwriter, less an amount equal to any dividends or distributions declared by the Company and paid or payable on the Initial Underwritten Securities but not payable on the Option Securities. Such option, if granted, will expire 30 days (or such lesser number of days as may be specified in the applicable Terms Agreement) after the Representation Date relating to the Initial Underwritten Securities, and may be exercised in whole or in part from time to time upon notice by the Representatives to the Company or the Operating Partnership, as the case may be, setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time, date and place of payment and delivery for such Option Securities. Any such time, date and place of delivery (a “Date of Delivery”) shall be determined by the Representatives, but shall not be later than seven full business days nor earlier than two full business days after the exercise of said option, nor in any event prior to the Closing Time, unless otherwise agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be. If the option is exercised as to all or any portion of the Option Securities, each of the Underwriters, acting severally and not jointly, will agrees to purchase that proportion of from the total number of Option Securities then being purchased which Company, the number of Initial Underwritten Securities each such Underwriter has severally agreed to purchase as shares of Preference Stock set forth in Schedule I to this Agreement opposite the applicable Terms Agreement bears name of such Underwriter (plus any additional shares of the Preference Stock that such Underwriter may become obligated to purchase pursuant to the total number provisions of Initial Underwritten Securities Section 10 hereof) at a price equal to $100.00 per share of Preference Stock and (except ii) the Company agrees to pay each Underwriter as otherwise provided in the applicable Terms Agreement), subject compensation hereunder a commission equal to $1.75 per share of Preference Stock purchased by such adjustments as the Representatives in their discretion shall make to eliminate any sales or purchases of fractional Underwritten SecuritiesUnderwriter.
(cb) Payment of the purchase price for, for and delivery of certificates for, for the Initial Underwritten Securities to be purchased by the Underwriters Preference Stock shall be made at the offices of Xxxxxxxx Chance US Xxxxxxx LLP, 00 Xxxx 00xx 000 Xxxxxxxxx Xxxxxx, Xxx XxxxXX, Xxx Xxxx 00000Xxxxx 0000, Xxxxxxx, Xxxxxxx at 10:00 A.M., New York City time, on November 17, 2005 or at such other time, place or date as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, at 10:00 A.M. on the fourth business day (or the third business day if required under Rule 15c6-1 of the 1934 Act, or unless postponed in accordance with the provisions of Section 10) following the date of the applicable Terms Agreement or at such other time as shall be agreed upon by the Representatives Representative and the Company (such time and date of payment and delivery being herein called the “Closing TimeDate”). In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates for, such Option Securities shall be made at the above-mentioned offices of Xxxxxxxx Chance US LLP, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, on each Date of Delivery as specified in the notice from the Representatives to the Company. Payment for the Underwritten Securities shall be made to the Company or the Operating Partnership, as the case may be, by wire transfer of immediately available in federal funds to a bank account designated by at the Company or the Operating Partnership, as the case may be, Closing Date against delivery of certificates for the shares of Preference Stock to the Representatives for the respective accounts of the Underwriters of the Underwritten Securities to be purchased by them. Certificates for the Underwritten Securities and the Option Securities, if any, shall be in such denominations and registered in such names as the Representatives may request in writing at least two business days before the Closing Time or the relevant Date of Delivery, as the case may beRepresentative. It is understood that each Underwriter has authorized the RepresentativesRepresentative, for its such Underwriter’s account, to accept delivery of, receipt for, for and make payment of the purchase price for, for the Underwritten Securities and shares of the Option Securities, if any, Preference Stock which it each Underwriter has agreed to purchase. The RepresentativesRepresentative, individually and not as representatives representative of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Underwritten Securities or the Option Securities, if any, shares of Preference Stock to be purchased by any Underwriter whose funds have payment has not been received by the Closing Time or the relevant Date of Delivery, as the case may beDate, but any such payment shall not relieve such Underwriter from its obligations hereunder. The certificates delivery of the Preference Stock shall be made in fully registered form, registered in the name of CEDE & CO., to the offices of The Depository Trust Company in New York, New York or its designee, and the Representative shall accept such delivery. The certificate(s) for the Initial Securities and the Option Securities, if any, shares of Preference Stock will be made available for examination and packaging by the Representatives Representative not later than 10:00 A.M. 12:00 Noon, New York City time, on the last business day prior to the Closing Time or Date. On the relevant Date of Delivery, as the case may be, in New York, New York. If authorized by the applicable Terms Agreement, the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company or the Operating Partnership, as the case may be, pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially in the form of Exhibit B hereto with such changes therein as the Company or the Operating Partnership, as the case may be, may approve. As compensation for arranging Delayed Delivery ContractsClosing Date, the Company or the Operating Partnership, as the case may be, will pay the commission payable to the Representatives at Closing Time, for the respective accounts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors of the types described in the Prospectus. At the applicable Closing Time, the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced paragraph (a) of this Section 2 by wire transfer in federal funds against receipt therefor by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery ContractsUnderwriters.
Appears in 1 contract
Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on the basis of the representations and warranties herein contained and shall be subject to the terms and conditions set forth herein or in the applicable Terms Agreement.
(b) In addition, on On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company or the Operating PartnershipTrust agrees to sell to each Underwriter, as the case may be, may grant, if so provided in the applicable Terms Agreement relating to the Initial Underwritten Securities, an option to the Underwriters named in such Terms Agreementand each Underwriter, severally and not jointly, agrees to purchase up to from the number of Option Securities set forth therein Trust, at the same price per Option Security as is applicable to the Initial Underwritten Securities, less an amount equal to any dividends or distributions declared by the Company and paid or payable on the Initial Underwritten Securities but not payable on the Option Securities. Such option, if granted, will expire 30 days (or such lesser number of days as may be specified in the applicable Terms Agreement) after the Representation Date relating to the Initial Underwritten Securities, and may be exercised in whole or in part from time to time upon notice by the Representatives to the Company or the Operating Partnership, as the case may be, setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time, date and place of payment and delivery for such Option Securities. Any such time, date and place of delivery (a “Date of Delivery”) shall be determined by the Representatives, but shall not be later than seven full business days nor earlier than two full business days after the exercise of said option, nor in any event prior to the Closing Time, unless otherwise agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be. If the option is exercised as to all or any portion of the Option Securities, each of the Underwriters, acting severally and not jointly, will purchase that proportion of the total number of Option Securities then being purchased which the number of Initial Underwritten Securities each such Underwriter has severally agreed to purchase as security set forth in the applicable Terms Agreement bears Pricing Agreement, the number of Preferred Securities set forth in Schedule A hereto opposite the name of such Underwriter, plus any additional number of Preferred Securities which such Underwriter may become obligated to purchase pursuant to the total number provisions of Initial Underwritten Section 10 hereof.
(b) As compensation to the Underwriters for their commitments hereunder and in view of the fact that the proceeds of the sale of the Securities (except will be used to purchase the Subordinated Debt Securities of the Company, the Company hereby agrees to pay to the Representatives, for the accounts of the several Underwriters, a commission per security set forth in Schedule B as otherwise provided in compensation to the applicable Terms Underwriters for their commitments under this Agreement), subject to such adjustments as the Representatives in their discretion shall make to eliminate any sales or purchases of fractional Underwritten Securities.
(c) Payment of the purchase price for, and delivery Delivery of certificates for, for the Initial Underwritten Securities to be purchased by the Underwriters shall be made at the offices of Xxxxxxxx Chance US LLPthe Underwriters in New York, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and payment of the purchase price for the Securities shall be made at the offices of the Company or at such other place as shall be agreed upon by the Representatives Underwriters and the Company or the Operating Partnership, as the case may beOfferors, at 10:00 A.M. a.m. (New York time) on the fourth business day (or the third business day if required under Rule 15c6-1 after execution of the 1934 ActPricing Agreement (or, if pricing of the Securities occurs after 4:30 p.m. Eastern time, on the fourth full business day thereafter)), or unless postponed in accordance with the provisions of Section 10) following the date of the applicable Terms Agreement or at such other time not later than ten business days after such date as shall be agreed upon by the Representatives Underwriters and the Company Offerors (such time and date of payment and delivery being herein called the “"Closing Time”"). In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates for, such Option Securities shall be made at the above-mentioned offices of Xxxxxxxx Chance US LLP, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, on each Date of Delivery as specified in the notice from the Representatives to the Company. Payment for the Underwritten Preferred Securities purchased by the Underwriters shall be made to the Company or the Operating Partnership, as the case may be, Trust by wire transfer of immediately available funds funds, payable to a bank account designated by the Company or the Operating Partnership, as the case may beTrust, against delivery to the Representatives for the respective accounts of the Underwriters of certificates for the Underwritten Preferred Securities to be purchased by themit. Certificates for the Underwritten Preferred Securities and the Option Securities, if any, shall be in such denominations and registered in such names as the Representatives Underwriters may request in writing at least two full business days before the Closing Time or the relevant Date of Delivery, as the case may beTime. It is understood that each Underwriter has authorized the Representatives, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Underwritten Securities and the Option Securities, if any, which it has agreed to purchase. The RepresentativesXxxxxxx Xxxxx, individually and not as representatives representative of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Underwritten Securities or the Option Preferred Securities, if any, to be purchased by any Underwriter whose funds have not been received by the Closing Time or the relevant Date of Delivery, as the case may beTime, but any such payment shall not relieve such Underwriter from its obligations hereunder. At the Closing Time, the Company will pay, or cause to be paid, the commission payable at such time to the Underwriters under Section 2(b) hereof by wire transfer of immediately available funds to a bank account designated by Xxxxxxx Xxxxx. The certificates for the Initial Preferred Securities and the Option Securities, if any, will be made available for examination and packaging by the Representatives not Underwriters no later than 10:00 A.M. a.m. (New York City time) on the last business day prior to the Closing Time or the relevant Date of Delivery, as the case may be, in New York, New York. If authorized by the applicable Terms Agreement, the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company or the Operating Partnership, as the case may be, pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially in the form of Exhibit B hereto with such changes therein as the Company or the Operating Partnership, as the case may be, may approve. As compensation for arranging Delayed Delivery Contracts, the Company or the Operating Partnership, as the case may be, will pay to the Representatives at Closing Time, for the respective accounts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors of the types described in the Prospectus. At the applicable Closing Time, the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery Contracts.
Appears in 1 contract
Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on the basis of the representations and warranties herein contained and shall be subject to the terms and conditions set forth herein or in the applicable Terms Agreement.
(b) In addition, on On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company or the Operating Partnership, as the case may be, may grant, if so provided in the applicable Terms Agreement relating agrees to the Initial Underwritten Securities, an option sell to the Underwriters named in such Terms Agreementeach Underwriter, severally and not jointly, to purchase up to the number of Option Securities set forth therein at the same price per Option Security as is applicable to the Initial Underwritten Securitiesand each Underwriter, less an amount equal to any dividends or distributions declared by the Company and paid or payable on the Initial Underwritten Securities but not payable on the Option Securities. Such option, if granted, will expire 30 days (or such lesser number of days as may be specified in the applicable Terms Agreement) after the Representation Date relating to the Initial Underwritten Securities, and may be exercised in whole or in part from time to time upon notice by the Representatives to the Company or the Operating Partnership, as the case may be, setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time, date and place of payment and delivery for such Option Securities. Any such time, date and place of delivery (a “Date of Delivery”) shall be determined by the Representatives, but shall not be later than seven full business days nor earlier than two full business days after the exercise of said option, nor in any event prior to the Closing Time, unless otherwise agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be. If the option is exercised as to all or any portion of the Option Securities, each of the Underwriters, acting severally and not jointly, will purchase that proportion of the total number of Option Securities then being purchased which the number of Initial Underwritten Securities each such Underwriter has severally agreed agrees to purchase as from the Company, at the price set forth in Schedule B, the applicable Terms Agreement bears aggregate amount of Securities set forth in Schedule A opposite the name of such Underwriter, plus any additional principal amount of Securities which such Underwriter may become obligated to purchase pursuant to the total number provisions of Initial Underwritten Securities (except as otherwise provided in the applicable Terms Agreement), subject to such adjustments as the Representatives in their discretion shall make to eliminate any sales or purchases of fractional Underwritten SecuritiesSection 11 hereof.
(cb) Payment of the purchase price for, and delivery of the certificates for, the Initial Underwritten Securities to be purchased by the Underwriters shall be made at the offices of Xxxxxxxx Chance US O’Melveny & Xxxxx LLP, 00 Xxxx 00xx Xxxxxx7 Times Square, Times Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, 00000 or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may beCompany, at 10:00 A.M. a.m., New York time, on the fourth business day May 18, 2006 (or the third business day if required under Rule 15c6-1 of the 1934 Act, or unless postponed in accordance with the provisions of Section 10) following the date of the applicable Terms Agreement 11 hereof), or at such other time not later than ten business days after such date as shall be agreed upon by the Representatives and the Company (such time and date of payment and delivery being herein called the “Closing Time”). In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates for, such Option Securities shall be made at the above-mentioned offices of Xxxxxxxx Chance US LLP, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, on each Date of Delivery as specified in the notice from the Representatives to the Company. Payment for the Underwritten Securities shall be made to the Company or the Operating Partnership, as the case may be, by wire transfer of immediately available funds to a bank account designated by the Company or the Operating Partnership, as the case may beCompany, against delivery to the Representatives for the respective accounts of the Underwriters of certificates for the Underwritten Securities to be purchased by them. Certificates for the Underwritten Securities and the Option Securities, if any, shall be in such minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof and registered in such names as the Representatives Underwriters may request in writing at least two business days before the Closing Time or the relevant Date of Delivery, as the case may beTime. It is understood that each Underwriter has authorized the Representatives, for its accounttheir respective accounts, to accept delivery of, receipt for, and make payment of the purchase price for, the Underwritten Securities and the Option Securities, if any, which it has agreed to purchase. The Each of the Representatives, individually and not as representatives representative of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Underwritten Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have not been received by the Closing Time or the relevant Date of Delivery, as the case may beTime, but any such payment shall not relieve such Underwriter from its obligations hereunder. The certificates for the Initial Securities and the Option Securities, if any, will be made available for examination and packaging by the Representatives not later than 10:00 A.M. a.m. New York Time on the last business day prior to the Closing Time or the relevant Date of Delivery, as the case may be, in New York, New York. If authorized by the applicable Terms Agreement, the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company or the Operating Partnership, as the case may be, pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially in the form of Exhibit B hereto with such changes therein as the Company or the Operating Partnership, as the case may be, may approve. As compensation for arranging Delayed Delivery Contracts, the Company or the Operating Partnership, as the case may be, will pay to the Representatives at Closing Time, for the respective accounts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors offices of the types described in the Prospectus. At the applicable Closing Time, the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery ContractsJPMorgan Chase Bank.
Appears in 1 contract
Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on On the basis of the representations and warranties herein contained and shall be subject to the terms and conditions herein set forth, the Trust agrees to sell to each Underwriter, severally and not jointly, and each Underwriter, severally and not jointly, agrees to purchase from the Trust, at the price per security set forth herein or in the applicable Terms Pricing Agreement, the number of [Initial] Securities set forth in Schedule A opposite the name of such Underwriter (except as otherwise provided in the Pricing Agreement), plus any additional number of [Initial] Securities that such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereof. The purchase price per security to be paid by the several Underwriters for the [Designated] Securities shall be an amount equal to the initial public offering price. The initial public offering price per Preferred Security shall be a fixed price to be determined by agreement between the Representative and the Offerors. The initial public offering price and the purchase price, when so determined, shall be set forth in the Pricing Agreement. In the event that such prices have not been agreed upon and the Pricing Agreement has not been executed and delivered by all parties thereto by the close of business on the fourth business day following the date of this Agreement, this Agreement shall terminate forthwith, without liability of any party to any other party, unless otherwise agreed to by the Offerors and the Representative. As compensation to the Underwriters for their commitments hereunder and in view of the fact that the proceeds of the sale of the Preferred Securities will be used to purchase the Subordinated Debt Securities of the Company, the Company hereby agrees to pay at Closing Time (as defined below) to the Representative, for the accounts of the several Underwriters, a commission per Preferred Security determined by agreement between the Representative and the Company for the Preferred Securities to be delivered by the Trust hereunder at Closing Time or relevant Date of Delivery (as defined below), as the case may be. The commission, when so determined, shall be set forth in the Pricing Agreement.
(b) In addition, on the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company or the Operating Partnership, as the case may be, may grant, if so provided in the applicable Terms Agreement relating to the Initial Underwritten Securities, Trust hereby grants an option to the Underwriters named in such Terms AgreementUnderwriters, severally and not jointly, to purchase up to an additional ______ Preferred Stock at the number of Option Securities price per share set forth therein at in the same price per Option Security as is applicable to the Initial Underwritten SecuritiesPricing Agreement, less an amount per share equal to any dividends or distributions declared by the Company and paid or payable on the Initial Underwritten [Initial] Securities but not payable on the Option Securities. Such option, if granted, The option hereby granted will expire 30 days (or such lesser number of days as may be specified in the applicable Terms Agreement) after the Representation Date relating to the Initial Underwritten Securities, and may be exercised in whole or in part from time to time only for the purpose of covering over- allotments which may be made in connection with the offering and distribution of the [Initial] Securities upon notice by the Representatives Representative to the Company or the Operating Partnership, as the case may be, Trust setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time, time and date and place of payment and delivery for such Option Securities. Any such time, time and date and place of delivery (a “"Date of Delivery”") shall be determined by the RepresentativesRepresentative, but shall not be later than seven full business days nor earlier than two full business days after the exercise of said option, nor in any event prior to the Closing Time, as hereinafter defined, unless otherwise agreed upon by the Representatives Representative and the Company or the Operating Partnership, as the case may beTrust. If the option is exercised as to all or any portion of the Option Securities, each of the Underwriters, acting severally and not jointly, will purchase that proportion of the total number of Option Securities then being purchased which the number of Initial Underwritten [Initial] Securities each such Underwriter has severally agreed to purchase as set forth in Schedule A opposite the applicable Terms Agreement name of such Underwriter bears to the total number of Initial Underwritten [Initial] Securities (except as otherwise provided in the applicable Terms Pricing Agreement), subject in each case to such adjustments as the Representatives Representative in their its discretion shall make to eliminate any sales or purchases of fractional Underwritten Securitiessecurities.]
(c) Payment of the purchase price for, and delivery of certificates for, the Initial Underwritten [Initial] Securities to be purchased by the Underwriters shall be made at the offices office of Xxxxxxxx Chance US LLP, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000_______________, or at such other place as shall be agreed upon by the Representatives Representative and the Company or the Operating Partnership, as the case may beTrust, at 10:00 A.M. New York time on the fourth fifth business day (or the third business day if required under Rule 15c6-1 of the 1934 Act, or unless postponed in accordance with the provisions of Section 10) following the date fifth business day after execution of the applicable Terms Agreement Pricing Agreement, or at such other time not later than ten business days after such date as shall be agreed upon by the Representatives Representative, the Trust and the Company (such time and date of payment and delivery being herein called the “"Closing Time”"). [In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates for, such Option Securities shall be made at the above-mentioned offices of Xxxxxxxx Chance US LLP_______________, or at such other place as shall be agreed upon by the Representatives Representative and the Company or the Operating Partnership, as the case may beTrust, on each Date of Delivery as specified in the notice from the Representatives Representative to the Company. Trust.] Payment for the Underwritten Securities shall be made to the Company by certified or official bank check or checks drawn in New York Clearing House funds or similar next day funds payable to the Operating Partnership, as order of the case may be, by wire transfer of immediately available funds Trust to a bank an account designated by the Company or the Operating Partnership, as the case may beTrust, against delivery to the Representatives Representative for the respective accounts of the Underwriters of certificates for the Underwritten [Designated] Securities to be purchased by them. Certificates for the Underwritten [Initial] Securities [and the Option Securities, if any, ,] shall be in such denominations and registered in such names as the Representatives Representative may request in writing at least two business days before the Closing Time or the relevant Date of Delivery, as the case may be. It is understood that each Underwriter has authorized the RepresentativesRepresentative, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Underwritten [Initial] Securities [and the Option Securities, if any, ,] which it has agreed to purchase. The Representatives[Representative], individually and not as representatives representative of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Underwritten [Initial] Securities [or the Option Securities, if any, ,] to be purchased by any Underwriter whose funds have check has not been received by the Closing Time or the relevant Date of Delivery, as the case may be, but any such payment shall not relieve such Underwriter from its obligations hereunder. The certificates for the Initial [Initial] Securities [and the Option Securities, if any, ,] will be made available for examination and packaging by the Representatives Representative not later than 10:00 A.M. on the last business day prior to the Closing Time or the relevant Date of Delivery, as the case may be, in New York, New York. If authorized by At the applicable Terms Agreement, the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company Closing Time or the Operating Partnershipeach Date of Delivery, as the case may be, pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially in the form of Exhibit B hereto with such changes therein as the Company will pay, or the Operating Partnership, as the case may be, may approve. As compensation for arranging Delayed Delivery Contractscause to be paid, the Company or the Operating Partnership, as the case may be, will pay commission payable at such time to the Representatives at Closing Time, for the respective accounts of the Underwriters, a fee equal Underwriters under Section 2 hereof by certified or official bank check or checks payable to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified [Representative] in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors of the types described in the Prospectus. At the applicable Closing Time, the Company New York Clearing House funds or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery Contractsother similar next day funds.
Appears in 1 contract
Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on the basis of the representations and warranties herein contained and shall be subject to the terms and conditions set forth herein or in the applicable Terms Agreement.
(b) In addition, on On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company or the Operating Partnership, as the case may be, may grant, if so provided in the applicable Terms Agreement relating Trust agrees to the Initial Underwritten Securities, an option sell to the Underwriters named in such Terms Agreementeach Underwriter, severally and not jointly, to purchase up to the number of Option Securities set forth therein at the same price per Option Security as is applicable to the Initial Underwritten Securitiesand each Underwriter, less an amount equal to any dividends or distributions declared by the Company and paid or payable on the Initial Underwritten Securities but not payable on the Option Securities. Such option, if granted, will expire 30 days (or such lesser number of days as may be specified in the applicable Terms Agreement) after the Representation Date relating to the Initial Underwritten Securities, and may be exercised in whole or in part from time to time upon notice by the Representatives to the Company or the Operating Partnership, as the case may be, setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time, date and place of payment and delivery for such Option Securities. Any such time, date and place of delivery (a “Date of Delivery”) shall be determined by the Representatives, but shall not be later than seven full business days nor earlier than two full business days after the exercise of said option, nor in any event prior to the Closing Time, unless otherwise agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be. If the option is exercised as to all or any portion of the Option Securities, each of the Underwriters, acting severally and not jointly, will purchase that proportion of the total number of Option Securities then being purchased which the number of Initial Underwritten Securities each such Underwriter has severally agreed agrees to purchase as from the Trust, at the price per security set forth in the applicable Terms Agreement bears Pricing Agreement, the number of Preferred Securities set forth in Schedule A hereto opposite the name of such Underwriter, plus any additional number of Preferred Securities which such Underwriter may become obligated to purchase pursuant to the total number provisions of Initial Underwritten Securities (except as otherwise provided in the applicable Terms Agreement), subject to such adjustments as the Representatives in their discretion shall make to eliminate any sales or purchases of fractional Underwritten SecuritiesSection 10 hereof.
(c1) Payment If the Offerors have elected not to rely upon Rule 430A of the 1933 Act Regulations, the initial public offering price per Security and the purchase price forper Security -16- B3 265040.8 51200 00722 11/14/96 8:37 pm to be paid by the several Underwriters for the Securities have each been determined and set forth in the Pricing Agreement, dated the date hereof, and delivery any necessary amendments to the Registration Statement and the Prospectus will be filed before the Registration Statement becomes effective.
(2) If the Offerors have elected to rely upon Rule 430A of the 1933 Act Regulations, the purchase price per Security to be paid by the several Underwriters shall be an amount equal to the initial public offering price per Preferred Security, less an amount per Preferred Security to be determined by agreement between the Underwriters and the Offerors. The initial public offering price per Preferred Security shall be a fixed price to be determined by agreement between the Underwriters and the Offerors. The initial public offering price and the purchase price, when so determined, shall be set forth in the Pricing Agreement. In the event that such prices have not been agreed upon and the Pricing Agreement has not been executed and delivered by all parties thereto by the close of business on the fourth business day following the date of this Agreement, this Agreement shall terminate forthwith, without liability of any party to any other party, unless otherwise agreed to by the Offerors and the Underwriters.
(b) Delivery of certificates for, for the Initial Underwritten Securities to be purchased by the Underwriters shall be made at the offices of Xxxxxxxx Chance US LLPthe Underwriters in New York, 00 and payment of the purchase price for the Securities shall be made at the offices of LeBoeuf, Lamb, Xxxxxx & XxxXxx, L.L.P., 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, 00000 or at such other place as shall be agreed upon by the Representatives Underwriters and the Company or the Operating Partnership, as the case may beOfferors, at 10:00 A.M. a.m. (New York time) on the fourth business day (or the third business day after the date the Registration Statement becomes effective (or, if required under the Offerors have elected to rely upon Rule 15c6-1 430A, the third full business day after execution of the 1934 ActPricing Agreement (or, if pricing of the Securities occurs after 4:30 p.m. Eastern time, on the fourth full business day thereafter)), or unless postponed in accordance with the provisions of Section 10) following the date of the applicable Terms Agreement or at such other time not later than ten business days after such date as shall be agreed upon by the Representatives Underwriters and the Company Offerors (such time and date of payment and delivery being herein called the “"Closing Time”"). In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates for, such Option Securities shall be made at the above-mentioned offices of Xxxxxxxx Chance US LLP, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, on each Date of Delivery as specified in the notice from the Representatives to the Company. Payment for the Underwritten Preferred Securities purchased by the Underwriters shall be made to the Company or the Operating Partnership, as the case may be, Trust by wire transfer of immediately available funds funds, payable to a bank account designated by the Company or order of the Operating Partnership, as the case may beTrust, against delivery to the Representatives for the respective accounts of the Underwriters of certificates for the Underwritten Preferred Securities to be purchased by themit. Certificates for the Underwritten Preferred Securities and the Option Securities, if any, shall be in such denominations and registered in such names as the Representatives Underwriters may request in writing at least two full business days before the Closing Time or the relevant Date of Delivery, as the case may beTime. It is understood that each Underwriter has authorized the Representatives, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Underwritten Securities and the Option Securities, if any, which it has agreed to purchase. The RepresentativesXxxxxxx Xxxxx, individually and not as representatives representative of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Underwritten Securities or the Option Preferred Securities, if any, to be purchased by any Underwriter whose funds have check has not been received by the Closing Time or the relevant Date of Delivery, as the case may beTime, but any such payment shall not relieve such Underwriter from its obligations hereunder. The certificates for the Initial Preferred Securities and the Option Securities, if any, will be -17- B3 265040.8 51200 00722 11/14/96 8:37 pm made available for examination and packaging by the Representatives not Underwriters no later than 10:00 A.M. a.m. (New York City time) on the last business day prior to the Closing Time or the relevant Date of Delivery, as the case may be, in New York, New York. If authorized by the applicable Terms Agreement, the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company or the Operating Partnership, as the case may be, pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially in the form of Exhibit B hereto with such changes therein as the Company or the Operating Partnership, as the case may be, may approve. As compensation for arranging Delayed Delivery Contracts, the Company or the Operating Partnership, as the case may be, will pay to the Representatives at Closing Time, for the respective accounts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors of the types described in the Prospectus. At the applicable Closing Time, the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery Contracts.
Appears in 1 contract
Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on the basis of the representations and warranties herein contained and shall be subject to the terms and conditions set forth herein or in the applicable Terms Agreement.
(b) In addition, on On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company or the Operating Partnershipagrees to sell to each Underwriter, as the case may be, may grant, if so provided in the applicable Terms Agreement relating to the Initial Underwritten Securities, an option to the Underwriters named in such Terms Agreementand each Underwriter agrees, severally and not jointly, to purchase up to from the number Company, at the purchase price specified in Schedule B hereto, the amount of Option Securities set forth therein at opposite the same price per Option Security as is applicable name of such Underwriter in Schedule A plus any additional principal amount of Securities such Underwriter may become obligated to purchase pursuant to the Initial Underwritten Securities, less an amount equal to any dividends or distributions declared by the provisions of Section 11 hereof. The Company and paid or payable on the Initial Underwritten Securities but not payable on the Option Securities. Such option, if granted, will expire 30 days (or such lesser number of days as may be specified in the applicable Terms Agreement) after the Representation Date relating to the Initial Underwritten Securities, and may be exercised in whole or in part from time to time upon notice by the Representatives to the Company or the Operating Partnership, as the case may be, setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time, date and place of payment and delivery for such Option Securities. Any such time, date and place of delivery (a “Date of Delivery”) shall be determined by the Representatives, but shall not be later than seven full business days nor earlier than two full business days after the exercise of said option, nor in obligated to deliver any event prior to the Closing Time, unless otherwise agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be. If the option is exercised as to all or any portion of the Option Securities, each of Securities except upon payment for all the Underwriters, acting severally and not jointly, will purchase Securities to be purchased as provided herein. It is understood that proportion of you propose to offer the total number of Option Securities then being purchased which the number of Initial Underwritten Securities each such Underwriter has severally agreed to purchase for sale as set forth in the applicable Terms Agreement bears to Disclosure Package and the total number of Initial Underwritten Securities (except as otherwise provided in the applicable Terms Agreement), subject to such adjustments as the Representatives in their discretion shall make to eliminate any sales or purchases of fractional Underwritten SecuritiesProspectus.
(cb) Payment of the purchase price for, and delivery of the certificates for, the Initial Underwritten Securities to be purchased by the Underwriters shall be made at the offices office of Xxxxxxxx Chance US Sxxxxxx Xxxxxxx & Bxxxxxxx LLP, 00 Xxxx 00xx 400 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may beCompany, at 10:00 A.M. 9:30 a.m. (New York City time) on the fourth second business day after the date hereof (or the third business day if required under Rule 15c6-1 of the 1934 Act, or unless postponed in accordance with the provisions of Section 10) following the date of the applicable Terms Agreement 11), or at such other time not later than ten business days after such date as shall be agreed upon by the Representatives and the Company (such time and date of payment and delivery being herein called the “Closing Time”). In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates for, such Option Securities shall be made at the above-mentioned offices of Xxxxxxxx Chance US LLP, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, on each Date of Delivery as specified in the notice from the Representatives to the Company. .
(c) Payment for the Underwritten Securities shall be made to the Company or the Operating Partnership, as the case may be, by wire transfer of immediately available funds to a bank account designated by the Company or the Operating Partnership, as the case may beCompany, against book-entry delivery through the facilities of The Depository Trust Company (“DTC”) to the Representatives for the respective accounts of the Underwriters of the Underwritten Securities to be purchased by them. Certificates for the Underwritten Securities and the Option Securities, if any, shall be in such denominations and registered in such names as the Representatives may request in writing at least two business days before the Closing Time or the relevant Date of Delivery, as the case may be. It is understood that each Underwriter has authorized the Representatives, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Underwritten Securities and the Option Securities, if any, which it has agreed to purchase. The RepresentativesEach of BofA Securities, Inc., Gxxxxxx Sachs & Co. LLC, J.X. Xxxxxx Securities LLC and Wxxxx Fargo Securities, LLC, individually and not as representatives representative of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Underwritten Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have not been received by the Closing Time or the relevant Date of Delivery, as the case may beTime, but any such payment shall not relieve such Underwriter from its obligations hereunder. .
(d) The certificates for the Initial Securities and the Option Securities, if any, will to be made available for examination and packaging by the Representatives not later than 10:00 A.M. on the last business day prior to the Closing Time or the relevant Date of Delivery, as the case may be, in New York, New York. If authorized by the applicable Terms Agreement, the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company or the Operating Partnership, as the case may be, so delivered pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially this Agreement shall be issued in the form of Exhibit B hereto one or more global securities which shall be deposited with, or in accordance with such changes therein as the Company or the Operating Partnershipinstructions of, as the case may be, may approve. As compensation for arranging Delayed Delivery Contracts, the Company or the Operating Partnership, as the case may be, will pay to the Representatives at Closing Time, for the respective accounts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified DTC and registered in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors name of the types described in the Prospectus. At the applicable Closing Timeits nominee, the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery Contracts.Cede & Co.
Appears in 1 contract
Samples: Underwriting Agreement (Fedex Corp)
Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on the basis of the representations and warranties herein contained and shall be subject to the terms and conditions set forth herein or in the applicable Terms Agreement.
(b) In addition, on On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company or the Operating Partnershipagrees to sell to each Underwriter, as the case may be, may grant, if so provided in the applicable Terms Agreement relating to the Initial Underwritten Securities, an option to the Underwriters named in such Terms Agreementand each Underwriter, severally and not jointly, agrees to purchase up to from the number Company, at 99% of Option the principal amount thereof, the aggregate principal amount of Securities set forth therein at in Schedule A opposite the same price per Option Security as is applicable name of such Underwriter, plus any additional aggregate principal amount of Securities which such Underwriter may become obligated to purchase pursuant to the Initial Underwritten Securities, less an amount equal to any dividends or distributions declared by the Company and paid or payable on the Initial Underwritten Securities but not payable on the Option Securities. Such option, if granted, will expire 30 days (or such lesser number provisions of days as may be specified in the applicable Terms Agreement) after the Representation Date relating to the Initial Underwritten Securities, and may be exercised in whole or in part from time to time upon notice by the Representatives to the Company or the Operating Partnership, as the case may be, setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time, date and place of payment and delivery for such Option Securities. Any such time, date and place of delivery (a “Date of Delivery”) shall be determined by the Representatives, but shall not be later than seven full business days nor earlier than two full business days after the exercise of said option, nor in any event prior to the Closing Time, unless otherwise agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be. If the option is exercised as to all or any portion of the Option Securities, each of the Underwriters, acting severally and not jointly, will purchase that proportion of the total number of Option Securities then being purchased which the number of Initial Underwritten Securities each such Underwriter has severally agreed to purchase as set forth in the applicable Terms Agreement bears to the total number of Initial Underwritten Securities (except as otherwise provided in the applicable Terms Agreement), subject to such adjustments as the Representatives in their discretion shall make to eliminate any sales or purchases of fractional Underwritten SecuritiesSection 10 hereof.
(cb) Payment of the purchase price for, and delivery of certificates for, for the Initial Underwritten Securities to be purchased by the Underwriters shall be made at the offices of the Company, 10990 Xxxxxxxx Chance US LLP, 00 Xxxx 00xx XxxxxxXxxxxxxxx, Xxx XxxxXxxxxxx, Xxx Xxxx 00000Xxxxxxxxxx, or xx at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may beCompany, at 10:00 A.M. 7:00 a.m., California time, on the fourth business day (or the third business day if required under Rule 15c6-1 of the 1934 ActFebruary 8, 2001, or unless postponed in accordance with the provisions of Section 10) following the date of the applicable Terms Agreement or at such other time not later than ten business days after such date as shall be agreed upon by the Representatives and the Company (such time and date of payment and delivery of the Securities being herein called the “"Closing Time”"). In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates for, such Option Securities shall be made at the above-mentioned offices of Xxxxxxxx Chance US LLP, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, on each Date of Delivery as specified in the notice from the Representatives to the Company. Payment for the Underwritten Securities shall be made to the Company or the Operating Partnership, as the case may be, by wire transfer of immediately available funds to a bank account designated by the Company or the Operating Partnership, as the case may beCompany, against delivery to the Representatives for the respective accounts of the several Underwriters of certificates for the Underwritten Securities to be purchased by them. Certificates for the Underwritten Securities and the Option Securities, if any, shall be in such denominations and registered in such names as the Representatives may request in writing at least two one full business days day before the Closing Time or the relevant Date of Delivery, as the case may beTime. It is understood that each Underwriter has authorized the Representatives, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Underwritten Securities and the Option Securities, if any, which it has agreed to purchase. The RepresentativesBanc of America Securities LLC, individually and not as representatives a representative of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Underwritten any Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have payment therefor has not been received by the Closing Time or the relevant Date of Delivery, as the case may beTime, but any such payment shall not relieve such Underwriter from its obligations hereunder. The certificates for the Initial Securities and the Option Securities, if any, will be made available for examination and packaging by the Representatives not later than 10:00 A.M. a.m. (new York City time) on the last business day prior to the Closing Time or the relevant Date of Delivery, as the case may be, in New York, New York. If authorized by the applicable Terms Agreement, the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company or the Operating Partnership, as the case may be, pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially in the form of Exhibit B hereto with such changes therein as the Company or the Operating Partnership, as the case may be, may approve. As compensation for arranging Delayed Delivery Contracts, the Company or the Operating Partnership, as the case may be, will pay to the Representatives at Closing Time, for the respective accounts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors of the types described in the Prospectus. At the applicable Closing Time, the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery Contracts.
Appears in 1 contract
Samples: Underwriting Agreement (Kb Home)
Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on the basis of the representations and warranties herein contained and shall be subject to the terms and conditions set forth herein or in the applicable Terms Agreement.
(b) In addition, on On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company or the Operating Partnership, as the case may be, may grant, if so provided in the applicable Terms Agreement relating Seller agrees to the Initial Underwritten Securities, an option sell to the Underwriters named in such Terms Agreementeach Underwriter and each Underwriter agrees, severally and not jointly, to purchase up to from the number of Option Securities Seller, the Underwritten Notes set forth therein opposite its name in the Pricing Agreement at the same price per Option Security as is applicable respective prices to the Initial Underwritten Securities, less an amount equal to any dividends or distributions declared by the Company and paid or payable on the Initial Underwritten Securities but not payable on the Option Securities. Such option, if granted, will expire 30 days (or such lesser number of days as may be specified in the applicable Terms Agreement) after the Representation Date relating to the Initial Underwritten Securities, and may be exercised in whole or in part from time to time upon notice by the Representatives to the Company or the Operating Partnership, as the case may be, setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time, date and place of payment and delivery for such Option Securities. Any such time, date and place of delivery (a “Date of Delivery”) shall be determined by agreement between the RepresentativesSeller and you, but which prices shall be set forth in the Pricing Agreement. In the event that such prices have not be later than seven full been agreed upon and the Pricing Agreement has not been executed and delivered by all parties thereto by the close of business days nor earlier than two full on the fourth business days after day following the exercise date of said optionthis Agreement, nor in this Agreement shall terminate forthwith, without liability of any event prior party to the Closing Timeany other party, unless otherwise agreed upon to by the Representatives Seller and the Company or the Operating Partnership, as the case may be. If the option is exercised as to all or any portion of the Option Securities, each of the Underwriters, acting severally and not jointly, will purchase that proportion of the total number of Option Securities then being purchased which the number of Initial Underwritten Securities each such Underwriter has severally agreed to purchase as set forth in the applicable Terms Agreement bears to the total number of Initial Underwritten Securities (except as otherwise provided in the applicable Terms Agreement), subject to such adjustments as the Representatives in their discretion shall make to eliminate any sales or purchases of fractional Underwritten Securitiesyou.
(cb) Payment of the purchase price for, and delivery of certificates forof, the Initial Underwritten Securities to be purchased by the Underwriters Notes shall be made at the offices office of Xxxxxxxx Chance US Shearman & Sterling LLP, 00 Xxxx 00xx 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, Seller at 10:00 A.M. on the fourth business day (or the third business day if required under Rule 15c6-1 of the 1934 ActSeptember 4, 2013, or unless postponed in accordance with the provisions of Section 10) following the date of the applicable Terms Agreement or at such other time as shall be agreed upon by the Representatives and the Company Seller (such time and date of payment and delivery being herein called the “Closing Time” and such date of delivery being called the “Closing Date”). In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates for, such Option Securities Payment shall be made at the above-mentioned offices of Xxxxxxxx Chance US LLP, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, on each Date of Delivery as specified in the notice from the Representatives to the Company. Payment for the Underwritten Securities shall be made to the Company or the Operating Partnership, as the case may be, by wire transfer of immediately available Seller in same day funds to a bank account designated by the Company or the Operating Partnership, as the case may be, against delivery to the Representatives for the respective accounts of the Underwriters of the Underwritten Securities to be purchased by themNotes to, or at the direction of, the Representatives. Certificates for the The Underwritten Securities and the Option Securities, if any, Notes shall be in such denominations and registered in such names as the Representatives may request in writing at least two business days before the Closing Time or the relevant Date of Delivery, as the case may beTime. It is understood that each Underwriter has authorized the Representatives, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the The Underwritten Securities and the Option Securities, if anyNotes, which it has agreed to purchase. The Representatives, individually and not as representatives of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Underwritten Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have not been received by the Closing Time or the relevant Date of Delivery, as the case may be, but any such payment shall not relieve such Underwriter from its obligations hereunder. The certificates for the Initial Securities and the Option Securities, if anyin temporary form, will be made available for examination and packaging by the Representatives not later than 10:00 A.M. on the last business day prior to Closing Time. The Underwritten Notes will be represented initially by Underwritten Notes registered in the Closing Time or the relevant Date name of Delivery, as the case may be, in New York, New York. If authorized by the applicable Terms AgreementCede & Co., the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company or the Operating Partnership, as the case may be, pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially in the form nominee of Exhibit B hereto with such changes therein as the Company or the Operating Partnership, as the case may be, may approve. As compensation for arranging Delayed Delivery Contracts, the Company or the Operating Partnership, as the case may be, will pay to the Representatives at Closing Time, for the respective accounts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors of the types described in the Prospectus. At the applicable Closing Time, the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery ContractsDepository Trust Company.
Appears in 1 contract
Samples: Underwriting Agreement (John Deere Owner Trust 2013-B)
Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on the basis of the representations and warranties herein contained and shall be subject to the terms and conditions set forth herein or in the applicable Terms Agreement.
(b) In addition, on On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company or the Operating Partnership, as the case may be, may grant, if so provided in the applicable Terms Agreement relating agrees to the Initial Underwritten Securities, an option sell to the Underwriters named in such Terms Agreementeach Underwriter, severally and not jointly, to purchase up to the number of Option Securities set forth therein at the same price per Option Security as is applicable to the Initial Underwritten Securitiesand each Underwriter, less an amount equal to any dividends or distributions declared by the Company and paid or payable on the Initial Underwritten Securities but not payable on the Option Securities. Such option, if granted, will expire 30 days (or such lesser number of days as may be specified in the applicable Terms Agreement) after the Representation Date relating to the Initial Underwritten Securities, and may be exercised in whole or in part from time to time upon notice by the Representatives to the Company or the Operating Partnership, as the case may be, setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time, date and place of payment and delivery for such Option Securities. Any such time, date and place of delivery (a “Date of Delivery”) shall be determined by the Representatives, but shall not be later than seven full business days nor earlier than two full business days after the exercise of said option, nor in any event prior to the Closing Time, unless otherwise agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be. If the option is exercised as to all or any portion of the Option Securities, each of the Underwriters, acting severally and not jointly, will purchase that proportion of the total number of Option Securities then being purchased which the number of Initial Underwritten Securities each such Underwriter has severally agreed agrees to purchase as from the Company, at the price set forth in Schedule B, the applicable Terms Agreement bears aggregate amount of Securities set forth in Schedule A opposite the name of such Underwriter, plus any additional principal amount of Securities which such Underwriter may become obligated to purchase pursuant to the total number provisions of Initial Underwritten Securities (except as otherwise provided in the applicable Terms Agreement), subject to such adjustments as the Representatives in their discretion shall make to eliminate any sales or purchases of fractional Underwritten SecuritiesSection 10 hereof.
(cb) Payment of the purchase price for, and delivery of the certificates for, the Initial Underwritten Securities to be purchased by the Underwriters shall be made at the offices of Xxxxxxxx Chance US O'Melveny & Xxxxx LLP, 00 000 Xxxxx Xxxx 00xx Xxxxxx, Xxx XxxxXxxxxxx, Xxx Xxxx 00000, Xxxxxxxxxx 00000 or at such other place as shall be agreed upon by the Representatives Representative and the Company or the Operating Partnership, as the case may beCompany, at 10:00 A.M. 8:00 a.m., Los Angeles time, on the fourth business day December 14, 1998 (or the third business day if required under Rule 15c6-1 of the 1934 Act, or unless postponed in accordance with the provisions of Section 10) following the date of the applicable Terms Agreement 10 hereof), or at such other time not later than ten business days after such date as shall be agreed upon by the Representatives Representative and the Company (such time and date of payment and delivery being herein called the “"Closing Time”"). In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates for, such Option Securities shall be made at the above-mentioned offices of Xxxxxxxx Chance US LLP, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, on each Date of Delivery as specified in the notice from the Representatives to the Company. .
(c) Payment for the Underwritten Securities shall be made to the Company or the Operating Partnership, as the case may be, by wire transfer of immediately available funds to a bank account designated by the Company or the Operating Partnership, as the case may beCompany, against delivery to the Representatives Representative for the respective accounts of the Underwriters of certificates for the Underwritten Securities to be purchased by them. Certificates for the Underwritten Securities and the Option Securities, if any, shall be in such denominations ($1,000 or integral multiples thereof) and registered in such names as the Representatives Underwriters may request in writing at least two business days before the Closing Time or the relevant Date of Delivery, as the case may beTime. It is understood that each Underwriter has authorized the RepresentativesRepresentative, for its accounttheir respective accounts, to accept delivery of, receipt for, and make payment of the purchase price for, the Underwritten Securities and the Option Securities, if any, which it has agreed to purchase. The RepresentativesRepresentative, individually and not as representatives representative of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Underwritten Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have not been received by the Closing Time or the relevant Date of Delivery, as the case may beTime, but any such payment shall not relieve such Underwriter from its obligations hereunder. The certificates for the Initial Securities and the Option Securities, if any, will be made available for examination and packaging by the Representatives Representative not later than 10:00 A.M. a.m. on the last business day prior to the Closing Time or the relevant Date of Delivery, as the case may be, in New York, New York. If authorized by the applicable Terms Agreement, the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company or the Operating Partnership, as the case may be, pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially in the form of Exhibit B hereto with such changes therein as the Company or the Operating Partnership, as the case may be, may approve. As compensation for arranging Delayed Delivery Contracts, the Company or the Operating Partnership, as the case may be, will pay to the Representatives at Closing Time, for the respective accounts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors offices of the types described in the Prospectus. At the applicable Closing Time, the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery ContractsChase Manhattan Bank.
Appears in 1 contract
Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on On the basis of the representations and warranties herein contained and shall be subject to the terms and conditions herein set forth, the Company agrees to sell to each Underwriter, severally and not jointly, and each Underwriter, severally and not jointly, agrees to purchase from the Company, at $______ per share, the number of Initial Securities set forth herein or in Schedule A opposite the applicable Terms Agreement.
(b) name of such Underwriter plus any additional number of Initial Securities which such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereof. In addition, on the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company or the Operating Partnership, as the case may be, may grant, if so provided in the applicable Terms Agreement relating to the Initial Underwritten Securities, hereby grants an option to the Underwriters named in such Terms AgreementUnderwriters, severally and not jointly, to purchase up to an additional 525,000 shares of Common Stock at the number of Option Securities price per share set forth therein at the same price per Option Security as is applicable to the Initial Underwritten Securities, less an amount equal to any dividends or distributions declared by the Company and paid or payable on the Initial Underwritten Securities but not payable on the Option Securitiesin paragraph (a) above. Such option, if granted, The option hereby granted will expire 30 days (or such lesser number of days as may be specified in the applicable Terms Agreement) after the Representation Date relating to the Initial Underwritten SecuritiesDate, and may be exercised in whole or in part from time to time only for the purpose of covering over-allotments which may be made in connection with the offering and distribution of the Initial Securities upon notice by the Representatives Representative to the Company or the Operating Partnership, as the case may be, setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time, time and date and place of payment and delivery for such Option Securities. Any such time, time and date and place of delivery (a “"Date of Delivery”") shall be determined by the RepresentativesRepresentative, but shall not be later than seven full business days nor earlier than two full business days after the exercise of said option, nor in any event prior to the Closing Time, as hereinafter defined, unless otherwise agreed upon by the Representatives Representative and the Company or the Operating Partnership, as the case may beCompany. . If the option is exercised as to all or any portion of the Option Securities, each of the Underwriters, acting severally and not jointly, will purchase that proportion of the total number of Option Securities then being purchased which the number of Initial Underwritten Securities each such Underwriter has severally agreed to purchase as set forth in Schedule A opposite the applicable Terms Agreement name of such Underwriter bears to the total number of Initial Underwritten Securities (except as otherwise provided in the applicable Terms Pricing Agreement), subject in each case to such adjustments as the Representatives Representative in their its discretion shall make to eliminate any sales or purchases of fractional Underwritten Securitiesshares.
(cb) Payment of the purchase price for, and delivery of certificates for, the Initial Underwritten Securities to be purchased by the Underwriters shall be made at the offices office of Xxxxxxxx Chance US LLPXxxxxx & Xxxxxxx, 00 000 Xxxx 00xx Xxxxx Xxxxxx, Xxx XxxxXxxxx 0000, Xxx Xxxx Xxxxxxx, Xxxxxxxxxx 00000-0000, or at such other place as shall be agreed upon by the Representatives Representative and the Company or the Operating Partnership, as the case may beCompany, at 10:00 A.M. 7:00 A.M., Los Angeles time, on the fourth business day (or the third business day if required under Rule 15c6-1 of the 1934 ActMay 14, 2001, or unless postponed in accordance with the provisions of Section 10) following the date of the applicable Terms Agreement or at such other time not later than ten business days after such date as shall be agreed upon by the Representatives Representative and the Company (such time and date of payment and delivery being herein called the “"Closing Time”"). In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, for and delivery of certificates for, for such Option Securities shall be made at the above-mentioned offices office of Xxxxxxxx Chance US LLPXxxxxx & Xxxxxxx, or at such other place as shall be mutually agreed upon by the Representatives Representative and the Company or the Operating Partnership, as the case may beCompany, on each Date of Delivery as specified in the notice from the Representatives Representative to the Company. Payment for the Underwritten Securities shall be made to the Company or the Operating Partnership, as the case may be, by wire transfer of immediately available funds to a bank account designated by the Company or the Operating Partnership, as the case may be, against delivery to the Representatives Representative for the respective accounts of the Underwriters of certificates for the Underwritten Securities to be purchased by them. Certificates for the Underwritten Initial Securities and the Option Securities, if any, shall be in such denominations and registered in such names as the Representatives Representative may request in writing at least two one business days day before the Closing Time or the relevant Date of Delivery, as the case may be. It is understood that each Underwriter has authorized the RepresentativesRepresentative, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Underwritten Initial Securities and the Option Securities, if any, which it has agreed to purchase. The RepresentativesXxxxxxx Xxxxx, individually and not as representatives representative of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Underwritten Initial Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have check has not been received by the Closing Time or the relevant Date of Delivery, as the case may beTime, but any such payment shall not relieve such Underwriter from its obligations hereunder. The certificates for the Initial Securities and the Option Securities, if any, will be made available for examination and packaging by the Representatives Representative not later than 10:00 A.M. on the last business day prior to the Closing Time or the relevant Date of Delivery, as the case may be, be in New York, New York. If authorized by the applicable Terms Agreement, the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company or the Operating Partnership, as the case may be, pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially in the form of Exhibit B hereto with such changes therein as the Company or the Operating Partnership, as the case may be, may approve. As compensation for arranging Delayed Delivery Contracts, the Company or the Operating Partnership, as the case may be, will pay to the Representatives at Closing Time, for the respective accounts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors of the types described in the Prospectus. At the applicable Closing Time, the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery Contracts.
Appears in 1 contract
Samples: Purchase Agreement (Health Care Property Investors Inc)
Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on the basis of the representations and warranties herein contained and shall be subject to the terms and conditions set forth herein or in the applicable Terms Agreement.
(b) In addition, on On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company or the Operating Partnership, as the case may be, may grant, if so provided in the applicable Terms Agreement relating agrees to the Initial Underwritten Securities, an option sell to the Underwriters named in such Terms Agreementeach Underwriter, severally and not jointly, to purchase up to the number of Option Securities set forth therein at the same price per Option Security as is applicable to the Initial Underwritten Securitiesand each Underwriter, less an amount equal to any dividends or distributions declared by the Company and paid or payable on the Initial Underwritten Securities but not payable on the Option Securities. Such option, if granted, will expire 30 days (or such lesser number of days as may be specified in the applicable Terms Agreement) after the Representation Date relating to the Initial Underwritten Securities, and may be exercised in whole or in part from time to time upon notice by the Representatives to the Company or the Operating Partnership, as the case may be, setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time, date and place of payment and delivery for such Option Securities. Any such time, date and place of delivery (a “Date of Delivery”) shall be determined by the Representatives, but shall not be later than seven full business days nor earlier than two full business days after the exercise of said option, nor in any event prior to the Closing Time, unless otherwise agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be. If the option is exercised as to all or any portion of the Option Securities, each of the Underwriters, acting severally and not jointly, will agrees to purchase that proportion from the Company, the aggregate principal amount of Securities set forth opposite their names on Schedule A at a purchase price of 98.890% of the total number principal amount thereof, plus any additional principal amount of Option Securities then being purchased which the number of Initial Underwritten Securities each such Underwriter has severally agreed may become obligated to purchase as set forth in the applicable Terms Agreement bears pursuant to the total number provisions of Initial Underwritten Securities (except as otherwise provided in the applicable Terms Agreement), subject to such adjustments as the Representatives in their discretion shall make to eliminate any sales or purchases of fractional Underwritten SecuritiesSection 10 hereof.
(cb) Payment of the purchase price for, and delivery of certificates for, the Initial Underwritten Securities to be purchased by the Underwriters shall be made at the offices office of Xxxxxxxx Chance US Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, 00 Xxxx 00xx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, 00000 or at such other place as shall be agreed upon by the Representatives you and the Company or the Operating Partnership, as the case may beCompany, at 10:00 A.M. 7:00 a.m., California time, on the fourth business day (or the third business day if required under Rule 15c6-1 of the 1934 ActNovember 12, 2013, or unless postponed in accordance with the provisions of Section 10) following the date of the applicable Terms Agreement or at such other time not later than ten business days after such date as shall be agreed upon by the Representatives and the Company (such time and date of payment and delivery being herein called the “Closing Time”). In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates for, such Option Securities shall be made at the above-mentioned offices of Xxxxxxxx Chance US LLP, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, on each Date of Delivery as specified in the notice from the Representatives to the Company. Payment for the Underwritten Securities shall be made to the Company or the Operating Partnership, as the case may be, by wire transfer of immediately available funds to a bank account designated by the Company or the Operating Partnership, as the case may be, against delivery to the Representatives for the respective accounts of the Underwriters of certificates for the Underwritten Securities to be purchased by them. Certificates for the Underwritten Securities and the Option Securities, if any, shall be in such denominations and registered in such names as the Representatives may request in writing at least two one business days day before the Closing Time or the relevant Date of Delivery, as the case may beTime. It is understood that each Underwriter has authorized the Representatives, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Underwritten Securities and the Option Securities, if any, which it such Underwriter has agreed to purchase. The RepresentativesCitigroup Global Markets Inc., individually and not as representatives representative of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Underwritten Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have check has not been received by the Closing Time or the relevant Date of Delivery, as the case may beTime, but any such payment shall not relieve release such Underwriter from its obligations hereunder. The certificates for the Initial Securities and the Option Securities, if any, will be made available for examination and packaging by the Representatives not later than 10:00 A.M. a.m. on the last business day prior to the Closing Time or the relevant Date of Delivery, as the case may be, in New York, New York. If authorized by the applicable Terms Agreement, the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company or the Operating Partnership, as the case may be, pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially in the form of Exhibit B hereto with such changes therein as the Company or the Operating Partnership, as the case may be, may approve. As compensation for arranging Delayed Delivery Contracts, the Company or the Operating Partnership, as the case may be, will pay to the Representatives at Closing Time, for the respective accounts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors of the types described in the Prospectus. At the applicable Closing Time, the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery Contracts.
Appears in 1 contract
Samples: Underwriting Agreement (Hcp, Inc.)
Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on the basis of the representations and warranties herein contained and shall be subject to the terms and conditions set forth herein or in the applicable Terms Agreement.
(b) In addition, on On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company or the Operating Partnershipagrees to sell to each Underwriter, as the case may be, may grant, if so provided in the applicable Terms Agreement relating to the Initial Underwritten Securities, an option to the Underwriters named in such Terms Agreementand each Underwriter agrees, severally and not jointly, to purchase up to from the number Company, at the purchase price specified in Schedule B hereto, the amount of Option Securities set forth therein at opposite the same price per Option Security as is applicable name of such Underwriter in Schedule A plus any additional principal amount of Securities such Underwriter may become obligated to purchase pursuant to the Initial Underwritten Securities, less an amount equal to any dividends or distributions declared by the provisions of Section 11 hereof. The Company and paid or payable on the Initial Underwritten Securities but not payable on the Option Securities. Such option, if granted, will expire 30 days (or such lesser number of days as may be specified in the applicable Terms Agreement) after the Representation Date relating to the Initial Underwritten Securities, and may be exercised in whole or in part from time to time upon notice by the Representatives to the Company or the Operating Partnership, as the case may be, setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time, date and place of payment and delivery for such Option Securities. Any such time, date and place of delivery (a “Date of Delivery”) shall be determined by the Representatives, but shall not be later than seven full business days nor earlier than two full business days after the exercise of said option, nor in obligated to deliver any event prior to the Closing Time, unless otherwise agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be. If the option is exercised as to all or any portion of the Option Securities, each of Securities except upon payment for all the Underwriters, acting severally and not jointly, will purchase Securities to be purchased as provided herein. It is understood that proportion of you propose to offer the total number of Option Securities then being purchased which the number of Initial Underwritten Securities each such Underwriter has severally agreed to purchase for sale as set forth in the applicable Terms Agreement bears to Disclosure Package and the total number of Initial Underwritten Securities (except as otherwise provided in the applicable Terms Agreement), subject to such adjustments as the Representatives in their discretion shall make to eliminate any sales or purchases of fractional Underwritten SecuritiesProspectus.
(cb) Payment of the purchase price for, and delivery of the certificates for, the Initial Underwritten Securities to be purchased by the Underwriters shall be made at the offices office of Xxxxxxx Xxxxxxx & Xxxxxxxx Chance US LLP, 00 Xxxx 00xx 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may beCompany, at 10:00 A.M. 9:30 a.m. (New York City time) on the fourth business day (or the third business day if required under Rule 15c6-1 of after the 1934 Act, or date hereof (unless postponed in accordance with the provisions of Section 10) following the date of the applicable Terms Agreement 11), or at such other time not later than ten business days after such date as shall be agreed upon by the Representatives and the Company (such time and date of payment and delivery being herein called the “Closing Time”). In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates for, such Option Securities shall be made at the above-mentioned offices of Xxxxxxxx Chance US LLP, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, on each Date of Delivery as specified in the notice from the Representatives to the Company. .
(c) Payment for the Underwritten Securities shall be made to the Company or the Operating Partnership, as the case may be, by wire transfer of immediately available funds to a bank account designated by the Company or the Operating Partnership, as the case may beCompany, against book-entry delivery through the facilities of The Depository Trust Company to the Representatives for the respective accounts of the Underwriters of the Underwritten Securities to be purchased by them. Certificates for the Underwritten Securities and the Option Securities, if any, shall be in such denominations and registered in such names as the Representatives may request in writing at least two business days before the Closing Time or the relevant Date of Delivery, as the case may be. It is understood that each Underwriter has authorized the Representatives, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Underwritten Securities and the Option Securities, if any, which it has agreed to purchase. The RepresentativesX.X. Xxxxxx Securities LLC, individually and not as representatives representative of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Underwritten Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have not been received by the Closing Time or the relevant Date of Delivery, as the case may beTime, but any such payment shall not relieve such Underwriter from its obligations hereunder. .
(d) The certificates for the Initial Securities and the Option Securities, if any, will to be made available for examination and packaging by the Representatives not later than 10:00 A.M. on the last business day prior to the Closing Time or the relevant Date of Delivery, as the case may be, in New York, New York. If authorized by the applicable Terms Agreement, the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company or the Operating Partnership, as the case may be, so delivered pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially this Agreement shall be issued in the form of Exhibit B hereto one or more global securities which shall be deposited with, or in accordance with such changes therein as the instructions of, The Depository Trust Company or the Operating Partnership, as the case may be, may approve. As compensation for arranging Delayed Delivery Contracts, the Company or the Operating Partnership, as the case may be, will pay to the Representatives at Closing Time, for the respective accounts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified and registered in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors name of the types described in the Prospectus. At the applicable Closing Timeits nominee, the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery Contracts.Cede & Co.
Appears in 1 contract
Samples: Underwriting Agreement (Fedex Corp)
Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on the basis of the representations and warranties herein contained and shall be subject to the terms and conditions set forth herein or in the applicable Terms Agreement.
(b) In addition, on On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company or the Operating Partnershipagrees to sell to each Underwriter, as the case may be, may grant, if so provided in the applicable Terms Agreement relating to the Initial Underwritten Securities, an option to the Underwriters named in such Terms Agreementand each Underwriter agrees, severally and not jointly, to purchase up to from the number Company, at the purchase price specified in Schedule B hereto, the amount of Option Securities set forth therein at opposite the same price per Option Security as is applicable name of such Underwriter in Schedule A plus any additional principal amount of Securities such Underwriter may become obligated to purchase pursuant to the Initial Underwritten Securities, less an amount equal to any dividends or distributions declared by the provisions of Section 11 hereof. The Company and paid or payable on the Initial Underwritten Securities but not payable on the Option Securities. Such option, if granted, will expire 30 days (or such lesser number of days as may be specified in the applicable Terms Agreement) after the Representation Date relating to the Initial Underwritten Securities, and may be exercised in whole or in part from time to time upon notice by the Representatives to the Company or the Operating Partnership, as the case may be, setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time, date and place of payment and delivery for such Option Securities. Any such time, date and place of delivery (a “Date of Delivery”) shall be determined by the Representatives, but shall not be later than seven full business days nor earlier than two full business days after the exercise of said option, nor in obligated to deliver any event prior to the Closing Time, unless otherwise agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be. If the option is exercised as to all or any portion of the Option Securities, each of Securities except upon payment for all the Underwriters, acting severally and not jointly, will purchase Securities to be purchased as provided herein. It is understood that proportion of you propose to offer the total number of Option Securities then being purchased which the number of Initial Underwritten Securities each such Underwriter has severally agreed to purchase for sale as set forth in the applicable Terms Agreement bears to Disclosure Package and the total number of Initial Underwritten Securities (except as otherwise provided in the applicable Terms Agreement), subject to such adjustments as the Representatives in their discretion shall make to eliminate any sales or purchases of fractional Underwritten SecuritiesProspectus.
(cb) Payment of the purchase price for, and delivery of the certificates for, the Initial Underwritten Securities to be purchased by the Underwriters shall be made at the offices office of Xxxxxxx Xxxxxxx & Xxxxxxxx Chance US LLP, 00 Xxxx 00xx 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may beCompany, at 10:00 A.M. 9:30 a.m. (New York City time) on the fourth second business day after the date hereof (or the third business day if required under Rule 15c6-1 of the 1934 Act, or unless postponed in accordance with the provisions of Section 10) following the date of the applicable Terms Agreement 11), or at such other time not later than ten business days after such date as shall be agreed upon by the Representatives and the Company (such time and date of payment and delivery being herein called the “Closing Time”). In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates for, such Option Securities shall be made at the above-mentioned offices of Xxxxxxxx Chance US LLP, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, on each Date of Delivery as specified in the notice from the Representatives to the Company. .
(c) Payment for the Underwritten Securities shall be made to the Company or the Operating Partnership, as the case may be, by wire transfer of immediately available funds to a bank account designated by the Company or the Operating Partnership, as the case may beCompany, against book-entry delivery through the facilities of The Depository Trust Company (“DTC”) to the Representatives for the respective accounts of the Underwriters of the Underwritten Securities to be purchased by them. Certificates for the Underwritten Securities and the Option Securities, if any, shall be in such denominations and registered in such names as the Representatives may request in writing at least two business days before the Closing Time or the relevant Date of Delivery, as the case may be. It is understood that each Underwriter has authorized the Representatives, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Underwritten Securities and the Option Securities, if any, which it has agreed to purchase. The RepresentativesEach of Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Xxxxxxx Sachs & Co. LLC, HSBC Securities (USA) Inc. and Mizuho Securities USA LLC, individually and not as representatives representative of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Underwritten Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have not been received by the Closing Time or the relevant Date of Delivery, as the case may beTime, but any such payment shall not relieve such Underwriter from its obligations hereunder. .
(d) The certificates for the Initial Securities and the Option Securities, if any, will to be made available for examination and packaging by the Representatives not later than 10:00 A.M. on the last business day prior to the Closing Time or the relevant Date of Delivery, as the case may be, in New York, New York. If authorized by the applicable Terms Agreement, the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company or the Operating Partnership, as the case may be, so delivered pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially this Agreement shall be issued in the form of Exhibit B hereto one or more global securities which shall be deposited with, or in accordance with such changes therein as the Company or the Operating Partnershipinstructions of, as the case may be, may approve. As compensation for arranging Delayed Delivery Contracts, the Company or the Operating Partnership, as the case may be, will pay to the Representatives at Closing Time, for the respective accounts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified DTC and registered in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors name of the types described in the Prospectus. At the applicable Closing Timeits nominee, the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery Contracts.Cede & Co.
Appears in 1 contract
Samples: Underwriting Agreement (Fedex Corp)
Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities Shares pursuant to the applicable Terms Pricing Agreement shall be deemed to have been made on the basis of the representations and warranties herein contained and shall be subject to the terms and conditions set forth herein or in the applicable Terms Pricing Agreement.
(b) In addition, on the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company or the Operating Partnership, as the case may be, may grant, if so provided in the applicable Terms Agreement relating to the Initial Underwritten Securities, does hereby grant an option to the Underwriters named in such Terms the Pricing Agreement, severally and not jointly, to purchase up to the number of 420,000 Option Securities set forth therein Shares at the same a price per Option Security as is applicable Share equal to the price per Initial Underwritten SecuritiesShare, less an amount equal to any dividends or distributions declared by the Company or the Property Partnerships and paid or payable on the Initial Underwritten Securities Shares but not payable on the Option SecuritiesShares. Such option, if granted, option will expire 30 days (or such lesser number of days as may be specified in the applicable Terms Agreement) after the Representation Date relating to the Initial Underwritten SecuritiesShares, and may be exercised in whole or in part from time to time only for the purpose of covering over-allotments which may be made in connection with the offering and distribution of the Initial Shares upon notice by the Representatives to the Company or the Operating Partnership, as the case may be, setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time, date and place of payment and delivery for such Option Securities. Any such time, date and place of delivery (a “Date of Delivery”) shall be determined by the Representatives, but shall not be later than seven full business days nor earlier than two full business days after the exercise of said option, nor in any event prior to the Closing Time, unless otherwise agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be. If the option is exercised as to all or any portion of the Option Securities, each of the Underwriters, acting severally and not jointly, will purchase that proportion of the total number of Option Securities then being purchased which the number of Initial Underwritten Securities each such Underwriter has severally agreed to purchase as set forth in the applicable Terms Agreement bears to the total number of Initial Underwritten Securities (except as otherwise provided in the applicable Terms Agreement), subject to such adjustments as the Representatives in their discretion shall make to eliminate any sales or purchases of fractional Underwritten Securities.by
(c) Payment of the purchase price for, and delivery of certificates forof, the Initial Underwritten Securities Shares to be purchased by the Underwriters shall be made at the offices of Xxxxxxxx Chance US LLPBear, 00 Steaxxx & Xo. Inc., 245 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or xx at such other place as shall be agreed upon by the Representatives you and the Company or the Operating Partnership, as the case may beCompany, at 10:00 A.M. a.m. (Eastern time) on the fourth third business day (or the third fourth business day if required under Rule 15c6-1 of the 1934 Actpricing occurs after 4:30 p.m. (New York City time) on any given business day, or unless postponed in accordance with the provisions of Section 10) following the date of the applicable Terms Agreement Pricing Agreement, or at such other time as shall be agreed upon by the Representatives you and the Company (each such time and date of payment and delivery being herein called the “a "Closing Time”"). In addition, in the event that the Underwriters have exercised their option to purchase any or all of the Option Securities are purchased by the UnderwritersShares, payment of the purchase price for, and delivery of certificates for, such Option Securities Shares, shall be made at the above-mentioned offices of Xxxxxxxx Chance US LLPBear, Steaxxx & Xo., Inc., or at such other place as shall be agreed upon by the Representatives you and the Company or the Operating Partnership, as the case may beCompany, on each the relevant Date of Delivery as specified in the notice from the Representatives you to the Company. Payment for the Underwritten Securities shall be made to the Company or the Operating Partnership, as the case may be, by wire transfer of immediately available funds payable to a bank account designated by the order of the Company or the Operating Partnership, as the case may be, against delivery to the Representatives you for the respective accounts of the Underwriters of the Underwritten Securities Shares to be purchased by them. Certificates for the Underwritten Securities and the Option Securities, if any, shall be in such denominations and registered in such names as the Representatives may request in writing at least two business days before the Closing Time or the relevant Date of Delivery, as the case may be. It is understood that each Underwriter has authorized the Representativesyou, for its account, to accept delivery of, receipt for, and make payment of the purchase price forprice, for the Underwritten Securities and the Option Securities, if any, Shares which it has severally agreed to purchase. The RepresentativesYou, individually and not as representatives of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Underwritten Securities or the Option Securities, if any, Shares to be purchased by any Underwriter whose funds have check has not been received by the Closing Time or the relevant Date of Delivery, as the case may be, but any such payment shall not relieve such Underwriter from its obligations hereunder. .
(d) The certificates for the Initial Securities Shares shall be in such authorized denominations and the Option Securities, if any, will be made available for examination and packaging by the Representatives not later than 10:00 A.M. on the last business day prior to the Closing Time or the relevant Date of Delivery, registered in such names as the case you may be, request in New York, New York. If authorized by the applicable Terms Agreement, the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company or the Operating Partnership, as the case may be, pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially in the form of Exhibit B hereto with such changes therein as the Company or the Operating Partnership, as the case may be, may approve. As compensation for arranging Delayed Delivery Contracts, the Company or the Operating Partnership, as the case may be, will pay to the Representatives at Closing Time, for the respective accounts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors of the types described in the Prospectus. At the applicable Closing Time, the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives writing at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery Contracts.full business
Appears in 1 contract
Samples: Purchase Agreement (Lexington Corporate Properties Inc)
Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on the basis of the representations and warranties herein contained and shall be subject to the terms and conditions set forth herein or in the applicable Terms Agreement.
(b) In addition, on On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company or the Operating Partnership, as the case may be, may grant, if so provided in the applicable Terms Agreement relating Trust agrees to the Initial Underwritten Securities, an option sell to the Underwriters named in such Terms Agreementeach Underwriter, severally and not jointly, to purchase up to the number of Option Securities set forth therein at the same price per Option Security as is applicable to the Initial Underwritten Securitiesand each Underwriter, less an amount equal to any dividends or distributions declared by the Company and paid or payable on the Initial Underwritten Securities but not payable on the Option Securities. Such option, if granted, will expire 30 days (or such lesser number of days as may be specified in the applicable Terms Agreement) after the Representation Date relating to the Initial Underwritten Securities, and may be exercised in whole or in part from time to time upon notice by the Representatives to the Company or the Operating Partnership, as the case may be, setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time, date and place of payment and delivery for such Option Securities. Any such time, date and place of delivery (a “Date of Delivery”) shall be determined by the Representatives, but shall not be later than seven full business days nor earlier than two full business days after the exercise of said option, nor in any event prior to the Closing Time, unless otherwise agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be. If the option is exercised as to all or any portion of the Option Securities, each of the Underwriters, acting severally and not jointly, will agrees to purchase that proportion of from the total number of Option Securities then being purchased which Trust, at the price per security set forth in Schedule II hereto, the number of Initial Underwritten Preferred Securities each set forth in Schedule I opposite the name of such Underwriter, plus any additional number of Preferred Securities that such Underwriter has severally agreed may become obligated to purchase pursuant to the provisions of Section 10 hereof. The purchase price per security to be paid by the several Underwriters for the Preferred Securities shall be an amount equal to the initial public offering price set forth on Schedule II, which is a fixed price determined by agreement between the Representative and the Offerors. As compensation to the Underwriters for their commitments hereunder and in view of the fact that the proceeds of the sale of the Preferred Securities will be used to purchase the Junior Subordinated Notes of the Company, the Company hereby agrees to pay on the Closing Date (as defined below) to the Representative, for the accounts of the several Underwriters, a commission per Preferred Security as set forth in on Schedule II for the applicable Terms Agreement bears Preferred Securities to be delivered by the total number of Initial Underwritten Securities (except as otherwise provided in Trust hereunder on the applicable Terms Agreement), subject to such adjustments as the Representatives in their discretion shall make to eliminate any sales or purchases of fractional Underwritten SecuritiesClosing Date.
(cb) Payment of the purchase price for, and delivery of certificates for, the Initial Underwritten Preferred Securities to be purchased by the Underwriters shall be made at the offices of Xxxxxxxx Chance US Dewey Ballantine LLP, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, at 10:00 A.M. on the fourth business day (or the third business day if required under Rule 15c6-1 1301 Avenue of the 1934 ActAmericas, or unless postponed New York, New York 00000 xx 00:00 X.M., Nxx Xxxx xxxx, xx Xxxxxxxx 00, 0000 (xxxxxx xxxxxxxxx in accordance with the provisions of Section 10) following the date of the applicable Terms Agreement or at such other time time, place or date as shall be agreed upon by the Representatives Representative, the Trust and the Company (such time and date of payment and delivery being herein called the “"Closing Time”Date"). In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates for, such Option Securities shall be made at the above-mentioned offices of Xxxxxxxx Chance US LLP, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, on each Date of Delivery as specified in the notice from the Representatives to the Company. Payment for the Underwritten Securities shall be made to the Company or the Operating Partnership, as the case may be, Trust by wire transfer of immediately available in federal funds to a bank account designated by at the Company or the Operating Partnership, as the case may beClosing Date, against delivery to the Representatives Representative for the respective accounts of the Underwriters of certificates for the Underwritten Preferred Securities to be purchased by them. Certificates for the Underwritten Preferred Securities and the Option Securities, if any, shall be in such denominations and registered in such names as the Representatives Representative may request in writing at least two business days before the Closing Time or the relevant Date of Delivery, as the case may beDate. It is understood that each Underwriter has authorized the RepresentativesRepresentative, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Underwritten Preferred Securities and the Option Securities, if any, which it has agreed to purchase. The RepresentativesMorgan Stanley & Co. Incorporated, individually and not as representatives of the UnderwritersRepresentatxxx xx xxx Xxxerwriters, may (but shall not be obligated to) make payment of the purchase price for the Underwritten Preferred Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have check has not been received by the Closing Time or the relevant Date of Delivery, as the case may beDate, but any such payment shall not relieve such Underwriter from its obligations hereunder. The certificates certificate(s) for the Initial Preferred Securities and the Option Securities, if any, will be made available for examination and packaging by the Representatives Representative not later than 10:00 A.M. 12:00 Noon, New York time, on the last business day prior to the Closing Time or Date. On the relevant Date of Delivery, as the case may be, in New York, New York. If authorized by the applicable Terms Agreement, the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company or the Operating Partnership, as the case may be, pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially in the form of Exhibit B hereto with such changes therein as the Company or the Operating Partnership, as the case may be, may approve. As compensation for arranging Delayed Delivery ContractsClosing Date, the Company will pay, or cause to be paid, the Operating Partnership, as the case may be, will pay commission payable at such time to the Representatives at Closing Time, for the respective accounts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors of the types described in the Prospectus. At the applicable Closing Time, the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms AgreementUnderwriters under Section 2(a) with all purchasers proposed hereof by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit wire transfer payable to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth Representative in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery Contractsfederal funds.
Appears in 1 contract
Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on the basis of the representations and warranties herein contained and shall be subject to the terms and conditions set forth herein or in the applicable Terms Agreement.
(b) In addition, on On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company or the Operating Partnership, as the case may be, may grant, if so provided in the applicable Terms Agreement relating agrees to the Initial Underwritten Securities, an option sell to the Underwriters named in such Terms Agreementeach Underwriter, severally and not jointly, to purchase up to the number of Option Securities set forth therein at the same price per Option Security as is applicable to the Initial Underwritten Securitiesand each Underwriter, less an amount equal to any dividends or distributions declared by the Company and paid or payable on the Initial Underwritten Securities but not payable on the Option Securities. Such option, if granted, will expire 30 days (or such lesser number of days as may be specified in the applicable Terms Agreement) after the Representation Date relating to the Initial Underwritten Securities, and may be exercised in whole or in part from time to time upon notice by the Representatives to the Company or the Operating Partnership, as the case may be, setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time, date and place of payment and delivery for such Option Securities. Any such time, date and place of delivery (a “Date of Delivery”) shall be determined by the Representatives, but shall not be later than seven full business days nor earlier than two full business days after the exercise of said option, nor in any event prior to the Closing Time, unless otherwise agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be. If the option is exercised as to all or any portion of the Option Securities, each of the Underwriters, acting severally and not jointly, will agrees to purchase that proportion from the Company, at a purchase price of the total number of Option Securities then being purchased which $32.6817 per share, the number of Initial Underwritten Securities each such Underwriter has severally agreed to purchase as set forth in Schedule A opposite the applicable Terms Agreement bears name of such Underwriter, plus any additional number of Securities which such Underwriter may become obligated to purchase pursuant to the total number provisions of Initial Underwritten Securities (except as otherwise provided in the applicable Terms Agreement), subject to such adjustments as the Representatives in their discretion shall make to eliminate any sales or purchases of fractional Underwritten SecuritiesSection 10 hereof.
(cb) Payment of the purchase price for, and delivery of certificates for, the Initial Underwritten Securities to be purchased by the Underwriters shall be made at the offices office of Xxxxxxxx Chance US & Xxxxxxxx LLP, 00 0000 Xxxxxxx Xxxx 00xx XxxxxxXxxx, Xxxxx 0000, Xxx XxxxXxxxxxx, Xxx Xxxx Xxxxxxxxxx 00000, -0000 or at such other place as shall be agreed upon by the Representatives you and the Company or the Operating Partnership, as the case may beCompany, at 10:00 A.M. 7:00 a.m., California time, on the fourth business day (or the third business day if required under Rule 15c6-1 of the 1934 ActApril 2, 2008, or unless postponed in accordance with the provisions of Section 10) following the date of the applicable Terms Agreement or at such other time not later than ten business days after such date as shall be agreed upon by the Representatives Representative and the Company (such time and date of payment and delivery being herein called the “Closing Time”). In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates for, such Option Securities shall be made at the above-mentioned offices of Xxxxxxxx Chance US LLP, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, on each Date of Delivery as specified in the notice from the Representatives to the Company. Payment for the Underwritten Securities shall be made to the Company or the Operating Partnership, as the case may be, by wire transfer of immediately available funds to a bank account designated by the Company or the Operating Partnership, as the case may be, against delivery to the Representatives Representative for the respective accounts of the Underwriters of certificates for the Underwritten Securities to be purchased by them. Certificates for the Underwritten Securities and the Option Securities, if any, shall be in such denominations and registered in such names as the Representatives Representative may request in writing at least two one business days day before the Closing Time or the relevant Date of Delivery, as the case may beTime. It is understood that each Underwriter has authorized the RepresentativesRepresentative, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Underwritten Securities and the Option Securities, if any, which it has agreed to purchase. The RepresentativesXxxxxxx Sachs, individually and not as representatives the representative of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Underwritten Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have check has not been received by the Closing Time or the relevant Date of Delivery, as the case may beTime, but any such payment shall not relieve release such Underwriter from its obligations hereunder. The certificates for the Initial Securities and the Option Securities, if any, will be made available for examination and packaging by the Representatives Representative not later than 10:00 A.M. a.m. on the last business day prior to the Closing Time or the relevant Date of Delivery, as the case may be, in New York, New York. If authorized by the applicable Terms Agreement, the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company or the Operating Partnership, as the case may be, pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially in the form of Exhibit B hereto with such changes therein as the Company or the Operating Partnership, as the case may be, may approve. As compensation for arranging Delayed Delivery Contracts, the Company or the Operating Partnership, as the case may be, will pay to the Representatives at Closing Time, for the respective accounts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors of the types described in the Prospectus. At the applicable Closing Time, the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery Contracts.
Appears in 1 contract
Samples: Underwriting Agreement (Hcp, Inc.)
Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on the basis of the representations and warranties herein contained and shall be subject to the terms and conditions set forth herein or in the applicable Terms Agreement.
(b) In addition, on On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company or the Operating Partnership, as the case may be, may grant, if so provided in the applicable Terms Agreement relating agrees to the Initial Underwritten Securities, an option sell to the Underwriters named in such Terms Agreementeach Underwriter, severally and not jointly, to purchase up to the number of Option Securities set forth therein at the same price per Option Security as is applicable to the Initial Underwritten Securitiesand each Underwriter, less an amount equal to any dividends or distributions declared by the Company and paid or payable on the Initial Underwritten Securities but not payable on the Option Securities. Such option, if granted, will expire 30 days (or such lesser number of days as may be specified in the applicable Terms Agreement) after the Representation Date relating to the Initial Underwritten Securities, and may be exercised in whole or in part from time to time upon notice by the Representatives to the Company or the Operating Partnership, as the case may be, setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time, date and place of payment and delivery for such Option Securities. Any such time, date and place of delivery (a “Date of Delivery”) shall be determined by the Representatives, but shall not be later than seven full business days nor earlier than two full business days after the exercise of said option, nor in any event prior to the Closing Time, unless otherwise agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be. If the option is exercised as to all or any portion of the Option Securities, each of the Underwriters, acting severally and not jointly, will agrees to purchase that proportion from the Company, the aggregate principal amount of the total number Securities set forth opposite their names on Schedule A at a purchase price of Option 99.233% of the principal amount thereof, plus any additional principal amount of Securities then being purchased which the number of Initial Underwritten Securities each such Underwriter has severally agreed may become obligated to purchase as set forth in the applicable Terms Agreement bears pursuant to the total number provisions of Initial Underwritten Securities (except as otherwise provided in the applicable Terms Agreement), subject to such adjustments as the Representatives in their discretion shall make to eliminate any sales or purchases of fractional Underwritten SecuritiesSection 10 hereof.
(cb) Payment of the purchase price for, and delivery of certificates for, the Initial Underwritten Securities to be purchased by the Underwriters shall be made at the offices office of Xxxxxxxx Chance US Xxxxxx & Xxxxxxx LLP, 00 Xxxx 00xx Xxxxxx00000 Xxxxxxxxxxxxx Xxxx., Xxx Xxxxx 0000, Xxxxxxx Xxxx, Xxx Xxxx Xxxxxxxxxx 00000, or at such other place as shall be agreed upon by the Representatives you and the Company or the Operating Partnership, as the case may beCompany, at 10:00 A.M. 7:00 A.M., California time, on the fourth business day (or the third business day if required under Rule 15c6-1 of the 1934 ActJanuary 17, 2023, or unless postponed in accordance with the provisions of Section 10) following the date of the applicable Terms Agreement or at such other time not later than ten business days after such date as shall be agreed upon by the Representatives and the Company (such time and date of payment and delivery being herein called the “Closing Time”). In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates for, such Option Securities shall be made at the above-mentioned offices of Xxxxxxxx Chance US LLP, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, on each Date of Delivery as specified in the notice from the Representatives to the Company. Payment for the Underwritten Securities shall be made to the Company or the Operating Partnership, as the case may be, by wire transfer of immediately available funds to a bank account designated by the Company or the Operating Partnership, as the case may be, against delivery to the Representatives for the respective accounts of the Underwriters of certificates for the Underwritten Securities to be purchased by them. Certificates for the Underwritten Securities and the Option Securities, if any, shall be in such denominations and registered in such names as the Representatives may request in writing at least two one business days day before the Closing Time or the relevant Date of Delivery, as the case may beTime. It is understood that each Underwriter has authorized the Representatives, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Underwritten Securities and the Option Securities, if any, which it such Underwriter has agreed to purchase. The RepresentativesXxxxx Fargo Securities, LLC, individually and not as representatives representative of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Underwritten Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have check has not been received by the Closing Time or the relevant Date of Delivery, as the case may beTime, but any such payment shall not relieve release such Underwriter from its obligations hereunder. The certificates for the Initial Securities and the Option Securities, if any, will be made available for examination and packaging by the Representatives not later than 10:00 A.M. on the last business day prior to the Closing Time or the relevant Date of Delivery, as the case may be, in New York, New York. If authorized by the applicable Terms Agreement, the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company or the Operating Partnership, as the case may be, pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially in the form of Exhibit B hereto with such changes therein as the Company or the Operating Partnership, as the case may be, may approve. As compensation for arranging Delayed Delivery Contracts, the Company or the Operating Partnership, as the case may be, will pay to the Representatives at Closing Time, for the respective accounts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors of the types described in the Prospectus. At the applicable Closing Time, the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery Contracts.
Appears in 1 contract
Samples: Underwriting Agreement (Healthpeak Properties, Inc.)
Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on the basis of the representations and warranties herein contained and shall be subject to the terms and conditions set forth herein or in the applicable Terms Agreement.
(b) In addition, on On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company or the Operating Partnershipagrees to sell to each Underwriter, as the case may be, may grant, if so provided in the applicable Terms Agreement relating to the Initial Underwritten Securities, an option to the Underwriters named in such Terms Agreementand each Underwriter agrees, severally and not jointly, to purchase up to from the number Company, at the purchase price specified in Schedule B hereto, the amount of Option Securities set forth therein at opposite the same price per Option Security as is applicable name of such Underwriter in Schedule A plus any additional principal amount of Securities such Underwriter may become obligated to purchase pursuant to the Initial Underwritten Securities, less an amount equal to any dividends or distributions declared by the provisions of Section 11 hereof. The Company and paid or payable on the Initial Underwritten Securities but not payable on the Option Securities. Such option, if granted, will expire 30 days (or such lesser number of days as may be specified in the applicable Terms Agreement) after the Representation Date relating to the Initial Underwritten Securities, and may be exercised in whole or in part from time to time upon notice by the Representatives to the Company or the Operating Partnership, as the case may be, setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time, date and place of payment and delivery for such Option Securities. Any such time, date and place of delivery (a “Date of Delivery”) shall be determined by the Representatives, but shall not be later than seven full business days nor earlier than two full business days after the exercise of said option, nor in obligated to deliver any event prior to the Closing Time, unless otherwise agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be. If the option is exercised as to all or any portion of the Option Securities, each of Securities except upon payment for all the Underwriters, acting severally and not jointly, will purchase Securities to be purchased as provided herein. It is understood that proportion of you propose to offer the total number of Option Securities then being purchased which the number of Initial Underwritten Securities each such Underwriter has severally agreed to purchase for sale as set forth in the applicable Terms Agreement bears to Disclosure Package and the total number of Initial Underwritten Securities (except as otherwise provided in the applicable Terms Agreement), subject to such adjustments as the Representatives in their discretion shall make to eliminate any sales or purchases of fractional Underwritten SecuritiesProspectus.
(cb) Payment of the purchase price for, and delivery of the certificates for, the Initial Underwritten Securities to be purchased by the Underwriters shall be made at the offices office of Xxxxxxx Xxxxxxx & Xxxxxxxx Chance US LLP, 00 Xxxx 00xx 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may beCompany, at 10:00 A.M. 9:30 a.m. (New York City time) on the fourth business day (or the third business day if required under Rule 15c6-1 of after the 1934 Act, or date hereof (unless postponed in accordance with the provisions of Section 10) following the date of the applicable Terms Agreement 11), or at such other time not later than ten business days after such date as shall be agreed upon by the Representatives and the Company (such time and date of payment and delivery being herein called the “Closing Time”). In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates for, such Option Securities shall be made at the above-mentioned offices of Xxxxxxxx Chance US LLP, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, on each Date of Delivery as specified in the notice from the Representatives to the Company. .
(c) Payment for the Underwritten Securities shall be made to the Company or the Operating Partnership, as the case may be, by wire transfer of immediately available funds to a bank account designated by the Company or the Operating Partnership, as the case may beCompany, against book-entry delivery through the facilities of The Depository Trust Company (“DTC”) to the Representatives for the respective accounts of the Underwriters of the Underwritten Securities to be purchased by them. Certificates for the Underwritten Securities and the Option Securities, if any, shall be in such denominations and registered in such names as the Representatives may request in writing at least two business days before the Closing Time or the relevant Date of Delivery, as the case may be. It is understood that each Underwriter has authorized the Representatives, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Underwritten Securities and the Option Securities, if any, which it has agreed to purchase. The RepresentativesEach of X.X. Xxxxxx Securities LLC, Xxxxxxx, Xxxxx & Co. and Xxxxxx Xxxxxxx & Co. LLC, individually and not as representatives representative of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Underwritten Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have not been received by the Closing Time or the relevant Date of Delivery, as the case may beTime, but any such payment shall not relieve such Underwriter from its obligations hereunder. .
(d) The certificates for the Initial Securities and the Option Securities, if any, will to be made available for examination and packaging by the Representatives not later than 10:00 A.M. on the last business day prior to the Closing Time or the relevant Date of Delivery, as the case may be, in New York, New York. If authorized by the applicable Terms Agreement, the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company or the Operating Partnership, as the case may be, so delivered pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially this Agreement shall be issued in the form of Exhibit B hereto one or more global securities which shall be deposited with, or in accordance with such changes therein as the Company or the Operating Partnershipinstructions of, as the case may be, may approve. As compensation for arranging Delayed Delivery Contracts, the Company or the Operating Partnership, as the case may be, will pay to the Representatives at Closing Time, for the respective accounts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified DTC and registered in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors name of the types described in the Prospectus. At the applicable Closing Timeits nominee, the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery Contracts.Cede & Co.
Appears in 1 contract
Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on the basis of the representations and warranties herein contained and shall be subject to the terms and conditions set forth herein or in the applicable Terms Agreement.
(b) In addition, on On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company or the Operating Partnership, as the case may be, may grant, if so provided in the applicable Terms Agreement relating Trust agrees to the Initial Underwritten Securities, an option sell to the Underwriters named in such Terms Agreementeach Underwriter, severally and not jointly, to purchase up to the number of Option Securities set forth therein at the same price per Option Security as is applicable to the Initial Underwritten Securitiesand each Underwriter, less an amount equal to any dividends or distributions declared by the Company and paid or payable on the Initial Underwritten Securities but not payable on the Option Securities. Such option, if granted, will expire 30 days (or such lesser number of days as may be specified in the applicable Terms Agreement) after the Representation Date relating to the Initial Underwritten Securities, and may be exercised in whole or in part from time to time upon notice by the Representatives to the Company or the Operating Partnership, as the case may be, setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time, date and place of payment and delivery for such Option Securities. Any such time, date and place of delivery (a “Date of Delivery”) shall be determined by the Representatives, but shall not be later than seven full business days nor earlier than two full business days after the exercise of said option, nor in any event prior to the Closing Time, unless otherwise agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be. If the option is exercised as to all or any portion of the Option Securities, each of the Underwriters, acting severally and not jointly, will agrees to purchase that proportion of from the total number of Option Securities then being purchased which Trust, at the price per security set forth in the Schedule B, the number of Initial Underwritten Capital Securities each such Underwriter has severally agreed to purchase as set forth in Schedule A opposite the applicable Terms Agreement bears to the total number name of Initial Underwritten Securities such Underwriter (except as otherwise provided in the applicable Terms Agreement<Page> 8 Schedule B), subject plus any additional number of Initial Capital Securities that such Underwriter may become obligated to such adjustments as purchase pursuant to the Representatives provisions of Section 8 hereof. The purchase price per security to be paid by the several Underwriters for the Initial Capital Securities shall be an amount equal to the initial public offering price. The initial public offering price per Capital Security shall be a fixed price to be determined by agreement between the Representative and the Offerors. The initial public offering price and the purchase price are set forth in Schedule B. As compensation to the Underwriters for their discretion shall make commitments hereunder and in view of the fact that the proceeds of the sale of the Initial Capital Securities will be used to eliminate any sales or purchases purchase the Junior Subordinated Notes of fractional Underwritten Securities.the Company, the Company hereby agrees to pay at Closing Time to the Underwriters, a commission per Initial Capital Security determined by agreement between the Representative and the Company for the Initial Capital Securities to be delivered by the Trust hereunder at Closing Time. The commission is set forth in Schedule B.
(cb) Payment of the purchase price for, and delivery of certificates for, the Initial Underwritten Capital Securities to be purchased by the Underwriters shall be made at the offices office of Xxxxxxxx Chance US Stroock & Stroock & Lavan LLP, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as shall be agreed upon by uxxx xy the Representatives Representative, the Company and the Company or the Operating Partnership, as the case may beTrust, at 10:00 A.M. New York time on the fourth business day (or the third business day if required under Rule 15c6-1 of the 1934 Act, or (unless postponed in accordance with the provisions of Section 10) following 8) after the date of the applicable Terms Agreement hereof, or at such other time not later than ten business days after such date as shall be agreed upon by the Representatives Representative, the Trust and the Company (such time and date of payment and delivery being herein called the “"Closing Time”"). Payment shall be made to the Trust by wire transfer or certified or official bank check or similar same day funds payable to the order of the Trust to an account designated by the Trust, against delivery to the Representative for the respective accounts of the Underwriters of certificates for the Initial Capital Securities to be purchased by them. Unless otherwise agreed, certificates for the Initial Capital Securities shall be in the form set forth in the Declaration, and such certificates shall be deposited with a custodian (the "Custodian") for The Depository Trust Company ("DTC") and registered in the name of Cede & Co., as nominee for DTC. At the Closing Time, or at the Option Closing Time, as the case may be, the Company will pay, or cause to be paid, the commission payable at such time to the Underwriters under this Section 2 hereof by wire transfer or certified or official bank check or checks payable to the Representative in same day funds.
(c) In addition, on the basis of the representations and warranties contained herein, and subject to the terms and conditions set forth herein, the Trust grants the Option to the Underwriters, severally and not jointly, to purchase up to an additional 3,000,000 Option Capital Securities at the same price per security determined as provided above for the Initial Capital Securities plus any accrued distributions thereon. The Option hereby granted may only be exercised once and will expire 14 days after the date hereof, and may be exercised, in whole or in part, only for the purpose of covering over-allotments upon written notice by the Representative to the Trust and the Company setting forth the number of Option Capital Securities as to which the several Underwriters are exercising the Option. The Representative, the Trust and the Company shall mutually agree on the time and date of payment and delivery of the Option Capital Securities. Such time and date of delivery (the "Option Closing Time") shall not be later than six business days after the exercise of the Option and not in any event prior to the Closing Time. If the Option is exercised as to all or any portion of the Option Capital Securities, the <Page> 9 Option Capital Securities as to which the Option is exercised shall be purchased by the Underwriters severally and not jointly, in proportion to, as nearly as practicable, their respective Initial Capital Securities underwriting obligations as set forth on Schedule A. The Company hereby agrees to pay at the Option Closing Time to the Representative, for the accounts of the several Underwriters, a commission per Option Capital Security equal to the commission set forth on Schedule B. In addition, in the event that any or all of the Option Capital Securities are purchased by the Underwriters, delivery and payment of for the purchase price for, and delivery of certificates for, such Option Capital Securities shall be made at the above-mentioned offices of Xxxxxxxx Chance US Stroock & Stroock & Lavan LLP, or at such other place as shall be agreed upon by the Representatives Trust, the Coxxxxx and the Company or Representative shall determine, at the Operating Partnership, as specified Option Closing Time. Delivery of the case may be, on each Date of Delivery as specified in the notice from the Representatives to the Company. Payment for the Underwritten Option Capital Securities shall be made to the Company or the Operating Partnership, as the case may be, by wire transfer of immediately available funds to a bank account designated Representative against payment by the Company or Underwriters through the Operating Partnership, as the case may be, against delivery to the Representatives for the respective accounts of the Underwriters of the Underwritten Securities to be purchased by them. Certificates for the Underwritten Securities and the Option Securities, if any, shall be in such denominations and registered in such names as the Representatives may request in writing at least two business days before the Closing Time or the relevant Date of Delivery, as the case may be. It is understood that each Underwriter has authorized the Representatives, for its account, to accept delivery of, receipt for, and make payment Representative of the purchase price for, thereof to or upon the Underwritten Securities and the Option Securities, if any, which it has agreed to purchase. The Representatives, individually and not as representatives order of the UnderwritersTrust in the manner set forth in Section 2(b) above. Unless otherwise agreed, may (but shall not be obligated to) make payment of the purchase price for the Underwritten Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have not been received by the Closing Time or the relevant Date of Delivery, as the case may be, but any such payment shall not relieve such Underwriter from its obligations hereunder. The certificates for the Initial Option Capital Securities and the Option Securities, if any, will shall be made available for examination and packaging by the Representatives not later than 10:00 A.M. on the last business day prior to the Closing Time or the relevant Date of Delivery, as the case may be, in New York, New York. If authorized by the applicable Terms Agreement, the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company or the Operating Partnership, as the case may be, pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially in the form of Exhibit B hereto with such changes therein as the Company or the Operating Partnership, as the case may be, may approve. As compensation for arranging Delayed Delivery Contracts, the Company or the Operating Partnership, as the case may be, will pay to the Representatives at Closing Time, for the respective accounts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors of the types described in the Prospectus. At the applicable Closing Time, the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to Declaration, and such certificates shall be deposited with the Company or Custodian for DTC and registered in the Operating Partnershipname of Cede & Co., as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery Contractsnominee for DTC.
Appears in 1 contract
Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on the basis of the representations and warranties herein contained and shall be subject to the terms and conditions set forth herein or in the applicable Terms Agreement.
(b) In addition, on On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company or the Operating Partnership, as the case may be, may grant, if so provided in the applicable Terms Agreement relating agrees to the Initial Underwritten Securities, an option sell to the Underwriters named in such Terms Agreementeach Underwriter, severally and not jointly, to purchase up to the number of Option Securities set forth therein at the same price per Option Security as is applicable to the Initial Underwritten Securitiesand each Underwriter, less an amount equal to any dividends or distributions declared by the Company and paid or payable on the Initial Underwritten Securities but not payable on the Option Securities. Such option, if granted, will expire 30 days (or such lesser number of days as may be specified in the applicable Terms Agreement) after the Representation Date relating to the Initial Underwritten Securities, and may be exercised in whole or in part from time to time upon notice by the Representatives to the Company or the Operating Partnership, as the case may be, setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time, date and place of payment and delivery for such Option Securities. Any such time, date and place of delivery (a “Date of Delivery”) shall be determined by the Representatives, but shall not be later than seven full business days nor earlier than two full business days after the exercise of said option, nor in any event prior to the Closing Time, unless otherwise agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be. If the option is exercised as to all or any portion of the Option Securities, each of the Underwriters, acting severally and not jointly, will purchase that proportion of the total number of Option Securities then being purchased which the number of Initial Underwritten Securities each such Underwriter has severally agreed agrees to purchase as from the Company, the principal amount of Junior Subordinated Notes set forth in Schedule I opposite the applicable Terms Agreement bears name of such Underwriter (plus any additional amount of Junior Subordinated Notes that such Underwriter may become obligated to purchase pursuant to the total number provisions of Initial Underwritten Securities (Section 10 hereof) at a price equal to 96.85% of the principal amount thereof; except as otherwise provided in that such price will be increased to 98% of the applicable Terms Agreement), subject principal amount of the Junior Subordinated Notes sold to such adjustments as the Representatives in their discretion shall make to eliminate any sales or purchases of fractional Underwritten Securitiescertain institutions.
(cb) Payment of the purchase price for, for and delivery of certificates for, for the Initial Underwritten Securities to be purchased by the Underwriters Junior Subordinated Notes shall be made at the offices of Xxxxxxxx Chance US Troutman Sanders LLP, 00 Xxxx 00xx XxxxxxNationsBank Plaza, Xxx Xxxx600 Peachtree Street, Xxx Xxxx 00000N.E., Atxxxxx, Xexxxxx xt 10:00 A.M., New York tixx, xx Xxxxxx 0, 0000 (xxxxxx xxxxxxxxx xx xccordance with the provisions of Section 10) or at such other time, place or date as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, at 10:00 A.M. on the fourth business day (or the third business day if required under Rule 15c6-1 of the 1934 Act, or unless postponed in accordance with the provisions of Section 10) following the date of the applicable Terms Agreement or at such other time as shall be agreed upon by the Representatives Representative and the Company (such time and date of payment and delivery being herein called the “"Closing Time”Date"). In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates for, such Option Securities shall be made at the above-mentioned offices of Xxxxxxxx Chance US LLP, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, on each Date of Delivery as specified in the notice from the Representatives to the Company. Payment for the Underwritten Securities shall be made to the Company or the Operating Partnership, as the case may be, by wire transfer of immediately available in federal funds to a bank account designated by at the Company or the Operating Partnership, as the case may be, Closing Date against delivery of the Junior Subordinated Notes to the Representatives Representative for the respective accounts of the Underwriters of the Underwritten Securities to be purchased by them. Certificates for the Underwritten Securities and the Option Securities, if any, shall be in such denominations and registered in such names as the Representatives may request in writing at least two business days before the Closing Time or the relevant Date of Delivery, as the case may beUnderwriters. It is understood that each Underwriter has authorized the RepresentativesRepresentative, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, principal amount of the Underwritten Securities and the Option Securities, if any, Junior Subordinated Notes which it has agreed to purchase. The RepresentativesRepresentative, individually and not as representatives Representative of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for principal amount of the Underwritten Securities or the Option Securities, if any, Junior Subordinated Notes to be purchased by any Underwriter whose funds have payment has not been received by the Closing Time or the relevant Date of Delivery, as the case may beDate, but any such payment shall not relieve such Underwriter from its obligations hereunder. The certificates for delivery of the Initial Securities and the Option Securities, if any, will Junior Subordinated Notes shall be made available for examination and packaging by in fully registered form, registered in the Representatives not later than 10:00 A.M. on the last business day prior name of CEDE & CO., to the Closing Time or the relevant Date offices of Delivery, as the case may be, The Depository Trust Company in New York, New York. If authorized by the applicable Terms Agreement, the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company York or the Operating Partnership, as the case may be, pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially in the form of Exhibit B hereto with such changes therein as the Company or the Operating Partnership, as the case may be, may approve. As compensation for arranging Delayed Delivery Contracts, the Company or the Operating Partnership, as the case may be, will pay to the Representatives at Closing Time, for the respective accounts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors of the types described in the Prospectus. At the applicable Closing Time, the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of themits designee, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery Contractsaccept such delivery.
Appears in 1 contract
Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on the basis of the representations and warranties herein contained and shall be subject to the terms and conditions set forth herein or in the applicable Terms Agreement.
(b) In addition, on On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company or the Operating Partnershipagrees to sell to each Underwriter, as the case may be, may grant, if so provided in the applicable Terms Agreement relating to the Initial Underwritten Securities, an option to the Underwriters named in such Terms Agreementand each Underwriter, severally and not jointly, agrees to purchase up to from the number Company, at 98.444% of Option the principal amount thereof, the aggregate principal amount of Securities set forth therein at in Schedule A opposite the same price per Option Security as is applicable name of such Underwriter, plus any additional aggregate principal amount of Securities which such Underwriter may become obligated to purchase pursuant to the Initial Underwritten Securities, less an amount equal to any dividends or distributions declared by the Company and paid or payable on the Initial Underwritten Securities but not payable on the Option Securities. Such option, if granted, will expire 30 days (or such lesser number provisions of days as may be specified in the applicable Terms Agreement) after the Representation Date relating to the Initial Underwritten Securities, and may be exercised in whole or in part from time to time upon notice by the Representatives to the Company or the Operating Partnership, as the case may be, setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time, date and place of payment and delivery for such Option Securities. Any such time, date and place of delivery (a “Date of Delivery”) shall be determined by the Representatives, but shall not be later than seven full business days nor earlier than two full business days after the exercise of said option, nor in any event prior to the Closing Time, unless otherwise agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be. If the option is exercised as to all or any portion of the Option Securities, each of the Underwriters, acting severally and not jointly, will purchase that proportion of the total number of Option Securities then being purchased which the number of Initial Underwritten Securities each such Underwriter has severally agreed to purchase as set forth in the applicable Terms Agreement bears to the total number of Initial Underwritten Securities (except as otherwise provided in the applicable Terms Agreement), subject to such adjustments as the Representatives in their discretion shall make to eliminate any sales or purchases of fractional Underwritten SecuritiesSection 10 hereof.
(cb) Payment of the purchase price for, and delivery of certificates for, for the Initial Underwritten Securities to be purchased by the Underwriters shall be made at the offices of the Company, 10000 Xxxxxxxx Chance US LLP, 00 Xxxx 00xx XxxxxxXxxxxxxxx, Xxx XxxxXxxxxxx, Xxx Xxxx 00000Xxxxxxxxxx, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may beCompany, at 10:00 A.M. 7:00 a.m., California time, on the fourth business day (or the third business day if required under Rule 15c6-1 of the 1934 ActJanuary 27, 2003, or unless postponed in accordance with the provisions of Section 10) following the date of the applicable Terms Agreement or at such other time not later than ten business days after such date as shall be agreed upon by the Representatives and the Company (such time and date of payment and delivery of the Securities being herein called the “Closing Time”). In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates for, such Option Securities shall be made at the above-mentioned offices of Xxxxxxxx Chance US LLP, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, on each Date of Delivery as specified in the notice from the Representatives to the Company. Payment for the Underwritten Securities shall be made to the Company or the Operating Partnership, as the case may be, by wire transfer of immediately available funds to a bank account designated by the Company or the Operating Partnership, as the case may beCompany, against delivery to the Representatives for the respective accounts of the several Underwriters of certificates for the Underwritten Securities to be purchased by them. Certificates for the Underwritten Securities and the Option Securities, if any, shall be in such denominations and registered in such names as the Representatives may request in writing at least two one full business days day before the Closing Time or the relevant Date of Delivery, as the case may beTime. It is understood that each Underwriter has authorized the Representatives, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Underwritten Securities and the Option Securities, if any, which it has agreed to purchase. The RepresentativesUBS Warburg LLC, individually and not as representatives a representative of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Underwritten any Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have payment therefor has not been received by the Closing Time or the relevant Date of Delivery, as the case may beTime, but any such payment shall not relieve such Underwriter from its obligations hereunder. The certificates for the Initial Securities and the Option Securities, if any, will be made available for examination and packaging by the Representatives not later than 10:00 A.M. a.m. (New York City time) on the last business day prior to the Closing Time or the relevant Date of Delivery, as the case may be, in New York, New York. If authorized by the applicable Terms Agreement, the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company or the Operating Partnership, as the case may be, pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially in the form of Exhibit B hereto with such changes therein as the Company or the Operating Partnership, as the case may be, may approve. As compensation for arranging Delayed Delivery Contracts, the Company or the Operating Partnership, as the case may be, will pay to the Representatives at Closing Time, for the respective accounts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors of the types described in the Prospectus. At the applicable Closing Time, the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery Contracts.
Appears in 1 contract
Samples: Underwriting Agreement (Kb Home)
Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on the basis of the representations and warranties herein contained and shall be subject to the terms and conditions set forth herein or in the applicable Terms Agreement.
(b) In addition, on On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company or the Operating Partnership, as the case may be, may grant, if so provided in the applicable Terms Agreement relating Seller agrees to the Initial Underwritten Securities, an option sell to the Underwriters named in such Terms Agreementeach Underwriter and each Underwriter agrees, severally and not jointly, to purchase up to from the number of Option Securities Seller, the Underwritten Notes set forth therein opposite its name in the Pricing Agreement at the same price per Option Security as is applicable respective prices to the Initial Underwritten Securities, less an amount equal to any dividends or distributions declared by the Company and paid or payable on the Initial Underwritten Securities but not payable on the Option Securities. Such option, if granted, will expire 30 days (or such lesser number of days as may be specified in the applicable Terms Agreement) after the Representation Date relating to the Initial Underwritten Securities, and may be exercised in whole or in part from time to time upon notice by the Representatives to the Company or the Operating Partnership, as the case may be, setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time, date and place of payment and delivery for such Option Securities. Any such time, date and place of delivery (a “Date of Delivery”) shall be determined by agreement between the RepresentativesSeller and you, but which prices shall be set forth in the Pricing Agreement. In the event that such prices have not be later than seven full been agreed upon and the Pricing Agreement has not been executed and delivered by all parties thereto by the close of business days nor earlier than two full on the fourth business days after day following the exercise date of said optionthis Agreement, nor in this Agreement shall terminate forthwith, without liability of any event prior party to the Closing Timeany other party, unless otherwise agreed upon to by the Representatives Seller and the Company or the Operating Partnership, as the case may be. If the option is exercised as to all or any portion of the Option Securities, each of the Underwriters, acting severally and not jointly, will purchase that proportion of the total number of Option Securities then being purchased which the number of Initial Underwritten Securities each such Underwriter has severally agreed to purchase as set forth in the applicable Terms Agreement bears to the total number of Initial Underwritten Securities (except as otherwise provided in the applicable Terms Agreement), subject to such adjustments as the Representatives in their discretion shall make to eliminate any sales or purchases of fractional Underwritten Securitiesyou.
(cb) Payment of the purchase price for, and delivery of certificates forof, the Initial Underwritten Securities to be purchased by the Underwriters Notes shall be made at the offices office of Xxxxxxxx Chance US Shearman & Sterling LLP, 00 Xxxx 00xx 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, Seller at 10:00 A.M. on the fourth business day (or the third business day if required under Rule 15c6-1 of the 1934 ActApril 16, 2008, or unless postponed in accordance with the provisions of Section 10) following the date of the applicable Terms Agreement or at such other time as shall be agreed upon by the Representatives and the Company Seller (such time and date of payment and delivery being herein called “Closing Time” and such date of delivery being called the “Closing TimeDate”). In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates for, such Option Securities Payment shall be made at the above-mentioned offices of Xxxxxxxx Chance US LLP, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, on each Date of Delivery as specified in the notice from the Representatives to the Company. Payment for the Underwritten Securities shall be made to the Company or the Operating Partnership, as the case may be, by wire transfer of immediately available Seller in same day funds to a bank account designated by the Company or the Operating Partnership, as the case may be, against delivery to the Representatives for the respective accounts of the Underwriters of the Underwritten Securities to be purchased by themNotes to, or at the direction of, the Representatives. Certificates for the The Underwritten Securities and the Option Securities, if any, Notes shall be in such denominations and registered in such names as the Representatives may request in writing at least two business days before the Closing Time or the relevant Date of Delivery, as the case may beTime. It is understood that each Underwriter has authorized the Representatives, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the The Underwritten Securities and the Option Securities, if anyNotes, which it has agreed to purchase. The Representatives, individually and not as representatives of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Underwritten Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have not been received by the Closing Time or the relevant Date of Delivery, as the case may be, but any such payment shall not relieve such Underwriter from its obligations hereunder. The certificates for the Initial Securities and the Option Securities, if anyin temporary form, will be made available for examination and packaging by the Representatives not later than 10:00 A.M. on the last business day prior to Closing Time. The Underwritten Notes will be represented initially by Underwritten Notes registered in the Closing Time or the relevant Date name of Delivery, as the case may be, in New York, New York. If authorized by the applicable Terms AgreementCede & Co., the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company or the Operating Partnership, as the case may be, pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially in the form nominee of Exhibit B hereto with such changes therein as the Company or the Operating Partnership, as the case may be, may approve. As compensation for arranging Delayed Delivery Contracts, the Company or the Operating Partnership, as the case may be, will pay to the Representatives at Closing Time, for the respective accounts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors of the types described in the Prospectus. At the applicable Closing Time, the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery ContractsDepository Trust Company.
Appears in 1 contract
Samples: Underwriting Agreement (John Deere Owner Trust 2008)
Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on the basis of the representations and warranties herein contained and shall be subject to the terms and conditions set forth herein or in the applicable Terms Agreement.
(b) In addition, on On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company or the Operating Partnership, as the case may be, may grant, if so provided in the applicable Terms Agreement relating Trust agrees to the Initial Underwritten Securities, an option sell to the Underwriters named in such Terms Agreementeach Underwriter, severally and not jointly, to purchase up to the number of Option Securities set forth therein at the same price per Option Security as is applicable to the Initial Underwritten Securitiesand each Underwriter, less an amount equal to any dividends or distributions declared by the Company and paid or payable on the Initial Underwritten Securities but not payable on the Option Securities. Such option, if granted, will expire 30 days (or such lesser number of days as may be specified in the applicable Terms Agreement) after the Representation Date relating to the Initial Underwritten Securities, and may be exercised in whole or in part from time to time upon notice by the Representatives to the Company or the Operating Partnership, as the case may be, setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time, date and place of payment and delivery for such Option Securities. Any such time, date and place of delivery (a “Date of Delivery”) shall be determined by the Representatives, but shall not be later than seven full business days nor earlier than two full business days after the exercise of said option, nor in any event prior to the Closing Time, unless otherwise agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be. If the option is exercised as to all or any portion of the Option Securities, each of the Underwriters, acting severally and not jointly, will purchase that proportion of the total number of Option Securities then being purchased which the number of Initial Underwritten Securities each such Underwriter has severally agreed agrees to purchase as from the Trust, at the price per security set forth in the applicable Terms Agreement bears to Pricing Agreement, the total number of Initial Underwritten Preferred Securities set forth in Schedule A opposite the name of such Underwriter (except as otherwise provided in the applicable Terms Pricing Agreement), subject plus any additional number of Preferred Securities that such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereof. The purchase price per security to be paid by the several Underwriters for the Preferred Securities shall be an amount equal to the initial public offering price. The initial public offering price per Preferred Security shall be a fixed price to be determined by agreement between the Representative and the Offerors. The initial public offering price and the purchase price, when so determined, shall be set forth in the Pricing Agreement. In the event that such adjustments prices have not been agreed upon and the Pricing Agreement has not been executed and delivered by all parties thereto by the close of business on the fourth business day following the date of this Agreement, this Agreement shall terminate forthwith, without liability of any party to any other party, unless otherwise agreed to by the Offerors and the Representative. As compensation to the Underwriters for their commitments hereunder and in view of the fact that the proceeds of the sale of the Preferred Securities will be used to purchase the Subordinated Debt Securities of the Company, the Company hereby agrees to pay at Closing Time (as defined below) to the Representatives Representative, for the accounts of the several Underwriters, a commission per Preferred Security determined by agreement between the Representative and the Company for the Preferred Securities to be delivered by the Trust hereunder at Closing Time. The commission, when so determined, shall be set forth in their discretion shall make to eliminate any sales or purchases of fractional Underwritten Securitiesthe Pricing Agreement.
(cb) Payment of the purchase price for, and delivery of certificates for, the Initial Underwritten Preferred Securities to be purchased by the Underwriters shall be made at the offices office of Xxxxxxxx Chance US Reix & Priest LLP, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as shall be agreed upon by the Representatives Representative and the Company or the Operating Partnership, as the case may beTrust, at 10:00 A.M. New York time on the fourth business day (or the third business day if required under Rule 15c6-1 of the 1934 Act, or (unless postponed in accordance with the provisions of Section 10) following the date after execution of the applicable Terms Agreement Pricing Agreement, or at such other time not later than ten business days after such date as shall be agreed upon by the Representatives Representative, the Trust and the Company (such time and date of payment and delivery being herein called the “"Closing Time”"). In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates for, such Option Securities shall be made at the above-mentioned offices of Xxxxxxxx Chance US LLP, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, on each Date of Delivery as specified in the notice from the Representatives to the Company. Payment for the Underwritten Securities shall be made to the Company Trust by certified or official bank check or checks drawn in New York Clearing House funds or similar next day funds payable to the Operating Partnership, as order of the case may be, by wire transfer of immediately available funds Trust to a bank an account designated by the Company or the Operating Partnership, as the case may beTrust, against delivery to the Representatives Representative for the respective accounts of the Underwriters of certificates for the Underwritten Preferred Securities to be purchased by them. Certificates for the Underwritten Preferred Securities and the Option Securities, if any, shall be in such denominations and registered in such names as the Representatives Representative may request in writing at least two business days before the Closing Time or the relevant Date of Delivery, as the case may beTime. It is understood that each Underwriter has authorized the RepresentativesRepresentative, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Underwritten Preferred Securities and the Option Securities, if any, which it has agreed to purchase. The RepresentativesMerxxxx Xxnxx, individually xndividually and not as representatives Representative of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Underwritten Preferred Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have check has not been received by the Closing Time or the relevant Date of Delivery, as the case may beTime, but any such payment shall not relieve such Underwriter from its obligations hereunder. The certificates certificate(s) for the Initial Preferred Securities and the Option Securities, if any, will be made available for examination and packaging by the Representatives Representative not later than 10:00 A.M. on the last business day prior to the Closing Time or the relevant Date of Delivery, as the case may be, in New York, New York. If authorized by the applicable Terms Agreement, the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company or the Operating Partnership, as the case may be, pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially in the form of Exhibit B hereto with such changes therein as the Company or the Operating Partnership, as the case may be, may approve. As compensation for arranging Delayed Delivery Contracts, the Company or the Operating Partnership, as the case may be, will pay to the Representatives at Closing Time, for the respective accounts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors of the types described in the Prospectus. At the applicable Closing Time, the Company will pay, or cause to be paid, the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by commission payable at such time to the Underwriters and previously approved under this Section 2 by the Company certified or the Operating Partnershipofficial bank check or checks payable to Merxxxx Xxnch, as the case may bePiexxx, as provided below, but not for an aggregate principal amount of Underwritten Securities Xenxxx & Smixx Xxcorporated in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity New York Clearing House funds or performance of Delayed Delivery Contracts. The Representatives shall submit to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery Contractsother similar next day funds.
Appears in 1 contract
Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on On the basis of the representations and warranties herein contained and shall be subject to the terms and conditions herein set forth, the Company agrees to sell to each Underwriter, severally and not jointly, and each Underwriter, severally and not jointly, agrees to purchase from the Company, at a purchase price of $28.656 per share, the number of Initial Securities set forth herein or in Schedule A opposite the applicable Terms Agreementname of such Underwriter, plus any additional number of Initial Securities which such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereof.
(b) In addition, on the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company or the Operating Partnership, as the case may be, may grant, if so provided in the applicable Terms Agreement relating to the Initial Underwritten Securities, hereby grants an option to the Underwriters named in such Terms AgreementUnderwriters, severally and not jointly, to purchase up to an additional 4,372,500 shares of Common Stock at the number of price set forth in paragraph (a) above; provided that the purchase price for any Option Securities set forth therein at the same price per Option Security as is applicable to the Initial Underwritten Securities, less shall be reduced by an amount per share equal to any dividends or distributions declared by the Company and paid or payable on the Initial Underwritten Securities but not payable on the such Option Securities. Such option, if granted, will expire 30 days (or such lesser number of days as The option hereby granted may be specified in exercised through and including the applicable Terms Agreement) 30th day after the Representation Date relating to the Initial Underwritten Securities, date hereof and may be exercised in whole or in part from time to time only for the purpose of covering over-allotments which may be made in connection with the offering and distribution of the Initial Securities upon notice by the Representatives Xxxxxxx Xxxxx and Xxxxxxx Xxxxx to the Company or the Operating Partnership, as the case may be, setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time, time and date and place of payment and delivery for such Option Securities. Any such time, time and date and place of delivery (a “Date of Delivery”) shall be determined by the RepresentativesXxxxxxx Sachs and Xxxxxxx Xxxxx, but shall not be later than seven full business days nor earlier than two full business days after the exercise of said option, nor in any event prior to the Closing Time, unless otherwise agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be. If the option is exercised as to all or any portion of the Option Securities, each of the Underwriters, acting severally and not jointly, will purchase that proportion of the total number of Option Securities then being purchased which the aggregate number of Initial Underwritten Securities each such Underwriter has severally agreed to purchase as set forth in Schedule A opposite the applicable Terms Agreement name of such Underwriter bears to the total aggregate number of all of the Initial Underwritten Securities (except as otherwise provided in the applicable Terms Agreement)Securities, subject in each case to such adjustments as the Representatives Xxxxxxx Sachs and Xxxxxxx Xxxxx in their discretion shall make to eliminate any sales or purchases of fractional Underwritten Securitiesshares.
(c) Payment of the purchase price for, and delivery of certificates for, the Initial Underwritten Securities to be purchased by the Underwriters shall be made at the offices office of Xxxxxxxx Chance US Xxxxxx & Xxxxxxx LLP, 00 000 Xxxx 00xx XxxxxxXxxxxx Xxxxx, Xxx Xxxxx 0000, Xxxxx Xxxx, Xxx Xxxx Xxxxxxxxxx 00000, -0000 or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may beCompany, at 10:00 A.M. 7:00 a.m., California time, on the fourth business day (or the third business day if required under Rule 15c6-1 of the 1934 ActNovember 10, 2006, or unless postponed in accordance with the provisions of Section 10) following the date of the applicable Terms Agreement or at such other time not later than ten business days after such date as shall be agreed upon by the Representatives and the Company (such time and date of payment and delivery being herein called the “Closing Time”). In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates for, such Option Securities shall be made at the above-mentioned offices of Xxxxxxxx Chance US LLPoffices, or at such other place as shall be agreed upon by the Representatives Xxxxxxx Sachs and Xxxxxxx Xxxxx and the Company or the Operating Partnership, as the case may beCompany, on each Date of Delivery as specified in the notice from the Representatives Xxxxxxx Sachs and Xxxxxxx Xxxxx to the Company. Payment for the Underwritten Securities shall be made to the Company or the Operating Partnership, as the case may be, by wire transfer of immediately available funds to a bank account designated by the Company or the Operating Partnership, as the case may be, against delivery to the Representatives for the respective accounts of the Underwriters of certificates for the Underwritten Securities to be purchased by them. Certificates for the Underwritten Securities and the Option Securities, if any, shall be in such denominations and registered in such names as the Representatives may request in writing at least two one business days day before the Closing Time or the relevant Date of Delivery, as the case may be. It is understood that each Underwriter has authorized the Representatives, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Underwritten Securities and the Option Securities, if any, which it has agreed to purchase. The RepresentativesGoldman Sachs and Xxxxxxx Xxxxx, individually and not as representatives of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Underwritten Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have check has not been received by the Closing Time or the relevant Date of Delivery, as the case may be, but any such payment shall not relieve release such Underwriter from its obligations hereunder. The certificates for the Initial Securities and the Option Securities, if any, will be made available for examination and packaging by the Representatives not later than 10:00 A.M. a.m. on the last business day prior to the Closing Time or the relevant Date of Delivery, as the case may be, in New York, New York. If authorized by the applicable Terms Agreement, the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company or the Operating Partnership, as the case may be, pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially in the form of Exhibit B hereto with such changes therein as the Company or the Operating Partnership, as the case may be, may approve. As compensation for arranging Delayed Delivery Contracts, the Company or the Operating Partnership, as the case may be, will pay to the Representatives at Closing Time, for the respective accounts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors of the types described in the Prospectus. At the applicable Closing Time, the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery Contracts.
Appears in 1 contract
Samples: Underwriting Agreement (Health Care Property Investors Inc)
Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on the basis of the representations and warranties herein contained and shall be subject to the terms and conditions set forth herein or in the applicable Terms Agreement.
(b) In addition, on On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company or the Operating Partnership, as the case may be, may grant, if so provided in the applicable Terms Agreement relating Seller agrees to the Initial Underwritten Securities, an option sell to the Underwriters named in such Terms Agreementeach Underwriter and each Underwriter agrees, severally and not jointly, to purchase up to from the number of Option Securities Seller, the Underwritten Notes set forth therein opposite its name in the Pricing Agreement at the same price per Option Security as is applicable respective prices to the Initial Underwritten Securities, less an amount equal to any dividends or distributions declared by the Company and paid or payable on the Initial Underwritten Securities but not payable on the Option Securities. Such option, if granted, will expire 30 days (or such lesser number of days as may be specified in the applicable Terms Agreement) after the Representation Date relating to the Initial Underwritten Securities, and may be exercised in whole or in part from time to time upon notice by the Representatives to the Company or the Operating Partnership, as the case may be, setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time, date and place of payment and delivery for such Option Securities. Any such time, date and place of delivery (a “Date of Delivery”) shall be determined by agreement between the RepresentativesSeller and you, but which prices shall be set forth in the Pricing Agreement. In the event that such prices have not be later than seven full been agreed upon and the Pricing Agreement has not been executed and delivered by all parties thereto by the close of business days nor earlier than two full on the fourth business days after day following the exercise date of said optionthis Agreement, nor in this Agreement shall terminate forthwith, without liability of any event prior party to the Closing Timeany other party, unless otherwise agreed upon to by the Representatives Seller and the Company or the Operating Partnership, as the case may be. If the option is exercised as to all or any portion of the Option Securities, each of the Underwriters, acting severally and not jointly, will purchase that proportion of the total number of Option Securities then being purchased which the number of Initial Underwritten Securities each such Underwriter has severally agreed to purchase as set forth in the applicable Terms Agreement bears to the total number of Initial Underwritten Securities (except as otherwise provided in the applicable Terms Agreement), subject to such adjustments as the Representatives in their discretion shall make to eliminate any sales or purchases of fractional Underwritten Securitiesyou.
(cb) Payment of the purchase price for, and delivery of certificates forof, the Initial Underwritten Securities to be purchased by the Underwriters Notes shall be made at the offices office of Xxxxxxxx Chance US & Xxxxx LLP, 00 Xxxx 00xx Xxxxxx000 Xxxxx XxXxxxx, Xxx XxxxXxxxxxx, Xxx Xxxx XX 00000, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, Seller at 10:00 A.M. on the fourth business day (or the third business day if required under Rule 15c6-1 of the 1934 ActMarch 2, 2017, or unless postponed in accordance with the provisions of Section 10) following the date of the applicable Terms Agreement or at such other time as shall be agreed upon by the Representatives and the Company Seller (such time and date of payment and delivery being herein called the “Closing Time” and such date of delivery being called the “Closing Date”). In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates for, such Option Securities Payment shall be made at the above-mentioned offices of Xxxxxxxx Chance US LLP, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, on each Date of Delivery as specified in the notice from the Representatives to the Company. Payment for the Underwritten Securities shall be made to the Company or the Operating Partnership, as the case may be, by wire transfer of immediately available Seller in same day funds to a bank account designated by the Company or the Operating Partnership, as the case may be, against delivery to the Representatives for the respective accounts of the Underwriters of the Underwritten Securities to be purchased by themNotes to, or at the direction of, the Representatives. Certificates for the The Underwritten Securities and the Option Securities, if any, Notes shall be in such denominations and registered in such names as the Representatives may request in writing at least two business days before the Closing Time or the relevant Date of Delivery, as the case may beTime. It is understood that each Underwriter has authorized the Representatives, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the The Underwritten Securities and the Option Securities, if anyNotes, which it has agreed to purchase. The Representatives, individually and not as representatives of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Underwritten Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have not been received by the Closing Time or the relevant Date of Delivery, as the case may be, but any such payment shall not relieve such Underwriter from its obligations hereunder. The certificates for the Initial Securities and the Option Securities, if anyin temporary form, will be made available for examination and packaging by the Representatives not later than 10:00 A.M. on the last business day prior to Closing Time. The Underwritten Notes will be represented initially by Underwritten Notes registered in the Closing Time or the relevant Date name of Delivery, as the case may be, in New York, New York. If authorized by the applicable Terms AgreementCede & Co., the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company or the Operating Partnership, as the case may be, pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially in the form nominee of Exhibit B hereto with such changes therein as the Company or the Operating Partnership, as the case may be, may approve. As compensation for arranging Delayed Delivery Contracts, the Company or the Operating Partnership, as the case may be, will pay to the Representatives at Closing Time, for the respective accounts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors of the types described in the Prospectus. At the applicable Closing Time, the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery ContractsDepository Trust Company.
Appears in 1 contract
Samples: Underwriting Agreement (John Deere Owner Trust 2017)
Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on the basis of the representations and warranties herein contained and shall be subject to the terms and conditions set forth herein or in the applicable Terms Agreement.
(b) In addition, on On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company or the Operating Partnership, as the case may be, may grant, if so provided in the applicable Terms Agreement relating Trust agrees to the Initial Underwritten Securities, an option sell to the Underwriters named in such Terms Agreementeach Underwriter, severally and not jointly, to purchase up to the number of Option Securities set forth therein at the same price per Option Security as is applicable to the Initial Underwritten Securitiesand each Underwriter, less an amount equal to any dividends or distributions declared by the Company and paid or payable on the Initial Underwritten Securities but not payable on the Option Securities. Such option, if granted, will expire 30 days (or such lesser number of days as may be specified in the applicable Terms Agreement) after the Representation Date relating to the Initial Underwritten Securities, and may be exercised in whole or in part from time to time upon notice by the Representatives to the Company or the Operating Partnership, as the case may be, setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time, date and place of payment and delivery for such Option Securities. Any such time, date and place of delivery (a “Date of Delivery”) shall be determined by the Representatives, but shall not be later than seven full business days nor earlier than two full business days after the exercise of said option, nor in any event prior to the Closing Time, unless otherwise agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be. If the option is exercised as to all or any portion of the Option Securities, each of the Underwriters, acting severally and not jointly, will purchase that proportion of the total number of Option Securities then being purchased which the number of Initial Underwritten Securities each such Underwriter has severally agreed agrees to purchase as from the Trust, at the price per security set forth in the applicable Terms Agreement bears to Pricing Agreement, the total number of Initial Underwritten Preferred Securities set forth in Schedule A opposite the name of such Underwriter (except as otherwise provided in the applicable Terms Pricing Agreement), subject plus any additional number of Preferred Securities that such Underwriter may become obligated to such adjustments as purchase pursuant to the provisions of Section 10 hereof. The purchase price per security to be paid by the several Underwriters for the Preferred Securities shall be an amount equal to the initial public offering price. The initial public offering price per Preferred Security shall be a fixed price to be determined by agreement between the Representatives and the Offerors. The initial public offering price and the purchase price, when so determined, shall be set forth in the Pricing Agreement. In the event that such prices have not been agreed upon and the Pricing Agreement has not been executed and delivered by all parties thereto by the close of business on the fourteenth business day following the date of this Agreement, this Agreement shall terminate forthwith, without liability of any party to any other party, unless otherwise agreed to by the Offerors and the Representatives. As compensation to the Underwriters for their discretion commitments hereunder and in view of the fact that the proceeds of the sale of the Preferred Securities will be used to purchase the Subordinated Debt Securities of the Company, the Company hereby agrees to pay at Closing Time (as defined below) to the Representatives, for the accounts of the several Underwriters, a commission per Preferred Security determined by agreement between the Representative and the Company for the Preferred Securities to be delivered by the Trust hereunder at Closing Time. The commission, when so determined, shall make to eliminate any sales or purchases of fractional Underwritten Securitiesbe set forth in the Pricing Agreement.
(cb) Payment of the purchase price for, and delivery of certificates for, the Initial Underwritten Preferred Securities to be purchased by the Underwriters shall be made at the offices office of Xxxxxxxx Chance US LLPSkadden, 00 Xxxx 00xx Arps, Slate, Meagxxx & Xlom, 000 Xxxxx Xxxxx Xxxxxx, Xxx XxxxXxxxx 0000, Xxx Xxxx Xxxxxxx, Xxxxxxxxxx 00000, or xx at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may beTrust, at 10:00 A.M. on the fourth business day (or the third business day if required under Rule 15c6-1 of the 1934 Act, or unless postponed in accordance with the provisions of Section 10) following the date of the applicable Terms Agreement or at such other time as shall be agreed upon by the Representatives and the Company (such time and date of payment and delivery being herein called the “Closing Time”). In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates for, such Option Securities shall be made at the above-mentioned offices of Xxxxxxxx Chance US LLP, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, on each Date of Delivery as specified in the notice from the Representatives to the Company. Payment for the Underwritten Securities shall be made to the Company or the Operating Partnership, as the case may be, by wire transfer of immediately available funds to a bank account designated by the Company or the Operating Partnership, as the case may be, against delivery to the Representatives for the respective accounts of the Underwriters of the Underwritten Securities to be purchased by them. Certificates for the Underwritten Securities and the Option Securities, if any, shall be in such denominations and registered in such names as the Representatives may request in writing at least two business days before the Closing Time or the relevant Date of Delivery, as the case may be. It is understood that each Underwriter has authorized the Representatives, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Underwritten Securities and the Option Securities, if any, which it has agreed to purchase. The Representatives, individually and not as representatives of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Underwritten Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have not been received by the Closing Time or the relevant Date of Delivery, as the case may be, but any such payment shall not relieve such Underwriter from its obligations hereunder. The certificates for the Initial Securities and the Option Securities, if any, will be made available for examination and packaging by the Representatives not later than 10:00 A.M. on the last business day prior to the Closing Time or the relevant Date of Delivery, as the case may be, in New York, New York. If authorized by the applicable Terms Agreement, the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company or the Operating Partnership, as the case may be, pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially in the form of Exhibit B hereto with such changes therein as the Company or the Operating Partnership, as the case may be, may approve. As compensation for arranging Delayed Delivery Contracts, the Company or the Operating Partnership, as the case may be, will pay to the Representatives at Closing Time, for the respective accounts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors of the types described in the Prospectus. At the applicable Closing Time, the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery Contracts.A.M.,
Appears in 1 contract
Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on the basis of the representations and warranties herein contained and shall be subject to the terms and conditions set forth herein or in the applicable Terms Agreement.
(b) In addition, on On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company or the Operating Partnershipagrees to sell to each Underwriter, as the case may be, may grant, if so provided in the applicable Terms Agreement relating to the Initial Underwritten Securities, an option to the Underwriters named in such Terms Agreementand each Underwriter agrees, severally and not jointly, to purchase up to from the number Company, at the purchase price specified in Schedule B hereto, the amount of Option Securities set forth therein at opposite the same price per Option Security as is applicable name of such Underwriter in Schedule A plus any additional principal amount of Securities such Underwriter may become obligated to purchase pursuant to the Initial Underwritten Securities, less an amount equal to any dividends or distributions declared by the provisions of Section 11 hereof. The Company and paid or payable on the Initial Underwritten Securities but not payable on the Option Securities. Such option, if granted, will expire 30 days (or such lesser number of days as may be specified in the applicable Terms Agreement) after the Representation Date relating to the Initial Underwritten Securities, and may be exercised in whole or in part from time to time upon notice by the Representatives to the Company or the Operating Partnership, as the case may be, setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time, date and place of payment and delivery for such Option Securities. Any such time, date and place of delivery (a “Date of Delivery”) shall be determined by the Representatives, but shall not be later than seven full business days nor earlier than two full business days after the exercise of said option, nor in obligated to deliver any event prior to the Closing Time, unless otherwise agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be. If the option is exercised as to all or any portion of the Option Securities, each of Securities except upon payment for all the Underwriters, acting severally and not jointly, will purchase Securities to be purchased as provided herein. It is understood that proportion of you propose to offer the total number of Option Securities then being purchased which the number of Initial Underwritten Securities each such Underwriter has severally agreed to purchase for sale as set forth in the applicable Terms Agreement bears to Disclosure Package and the total number of Initial Underwritten Securities (except as otherwise provided in the applicable Terms Agreement), subject to such adjustments as the Representatives in their discretion shall make to eliminate any sales or purchases of fractional Underwritten SecuritiesProspectus.
(cb) Payment of the purchase price for, and delivery of the certificates for, the Initial Underwritten Securities to be purchased by the Underwriters shall be made at the offices office of Xxxxxxx Xxxxxxx & Xxxxxxxx Chance US LLP, 00 Xxxx 00xx 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may beCompany, at 10:00 A.M. 9:30 a.m. (New York City time) on the fourth business day (or the third business day if required under Rule 15c6-1 of after the 1934 Act, or date hereof (unless postponed in accordance with the provisions of Section 10) following the date of the applicable Terms Agreement 11), or at such other time not later than ten business days after such date as shall be agreed upon by the Representatives and the Company (such time and date of payment and delivery being herein called the “Closing Time”). In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates for, such Option Securities shall be made at the above-mentioned offices of Xxxxxxxx Chance US LLP, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, on each Date of Delivery as specified in the notice from the Representatives to the Company. .
(c) Payment for the Underwritten Securities shall be made to the Company or the Operating Partnership, as the case may be, by wire transfer of immediately available funds to a bank account designated by the Company or the Operating Partnership, as the case may beCompany, against book-entry delivery through the facilities of The Depository Trust Company (“DTC”) to the Representatives for the respective accounts of the Underwriters of the Underwritten Securities to be purchased by them. Certificates for the Underwritten Securities and the Option Securities, if any, shall be in such denominations and registered in such names as the Representatives may request in writing at least two business days before the Closing Time or the relevant Date of Delivery, as the case may be. It is understood that each Underwriter has authorized the Representatives, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Underwritten Securities and the Option Securities, if any, which it has agreed to purchase. The RepresentativesEach of Mizuho Securities USA Inc., Xxxxxx Xxxxxxx & Co. LLC and Xxxxx Fargo Securities, LLC, individually and not as representatives representative of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Underwritten Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have not been received by the Closing Time or the relevant Date of Delivery, as the case may beTime, but any such payment shall not relieve such Underwriter from its obligations hereunder. .
(d) The certificates for the Initial Securities and the Option Securities, if any, will to be made available for examination and packaging by the Representatives not later than 10:00 A.M. on the last business day prior to the Closing Time or the relevant Date of Delivery, as the case may be, in New York, New York. If authorized by the applicable Terms Agreement, the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company or the Operating Partnership, as the case may be, so delivered pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially this Agreement shall be issued in the form of Exhibit B hereto one or more global securities which shall be deposited with, or in accordance with such changes therein as the Company or the Operating Partnershipinstructions of, as the case may be, may approve. As compensation for arranging Delayed Delivery Contracts, the Company or the Operating Partnership, as the case may be, will pay to the Representatives at Closing Time, for the respective accounts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified DTC and registered in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors name of the types described in the Prospectus. At the applicable Closing Timeits nominee, the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery Contracts.Cede & Co.
Appears in 1 contract
Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on the basis of the representations and warranties herein contained and shall be subject to the terms and conditions set forth herein or in the applicable Terms Agreement.
(b) In addition, on On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company or the Operating Partnershipagrees to sell to each Underwriter, as the case may be, may grant, if so provided in the applicable Terms Agreement relating to the Initial Underwritten Securities, an option to the Underwriters named in such Terms Agreementand each Underwriter agrees, severally and not jointly, to purchase up to from the number Company, at the purchase price specified in Schedule B hereto, the amount of Option Securities set forth therein at opposite the same price per Option Security as is applicable name of such Underwriter in Schedule A plus any additional principal amount of Securities such Underwriter may become obligated to purchase pursuant to the Initial Underwritten Securities, less an amount equal to any dividends or distributions declared by the provisions of Section 11 hereof. The Company and paid or payable on the Initial Underwritten Securities but not payable on the Option Securities. Such option, if granted, will expire 30 days (or such lesser number of days as may be specified in the applicable Terms Agreement) after the Representation Date relating to the Initial Underwritten Securities, and may be exercised in whole or in part from time to time upon notice by the Representatives to the Company or the Operating Partnership, as the case may be, setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time, date and place of payment and delivery for such Option Securities. Any such time, date and place of delivery (a “Date of Delivery”) shall be determined by the Representatives, but shall not be later than seven full business days nor earlier than two full business days after the exercise of said option, nor in obligated to deliver any event prior to the Closing Time, unless otherwise agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be. If the option is exercised as to all or any portion of the Option Securities, each of Securities except upon payment for all the Underwriters, acting severally and not jointly, will purchase Securities to be purchased as provided herein. It is understood that proportion of you propose to offer the total number of Option Securities then being purchased which the number of Initial Underwritten Securities each such Underwriter has severally agreed to purchase for sale as set forth in the applicable Terms Agreement bears to Disclosure Package and the total number of Initial Underwritten Securities (except as otherwise provided in the applicable Terms Agreement), subject to such adjustments as the Representatives in their discretion shall make to eliminate any sales or purchases of fractional Underwritten SecuritiesProspectus.
(cb) Payment of the purchase price for, and delivery of the certificates for, the Initial Underwritten Securities to be purchased by the Underwriters shall be made at the offices office of Xxxxxxx Xxxxxxx & Xxxxxxxx Chance US LLP, 00 Xxxx 00xx 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may beCompany, at 10:00 A.M. 9:30 a.m. (New York City time) on the fourth business day (or the third business day if required under Rule 15c6-1 of after the 1934 Act, or date hereof (unless postponed in accordance with the provisions of Section 10) following the date of the applicable Terms Agreement 11), or at such other time not later than ten business days after such date as shall be agreed upon by the Representatives and the Company (such time and date of payment and delivery being herein called the “Closing Time”). In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates for, such Option Securities shall be made at the above-mentioned offices of Xxxxxxxx Chance US LLP, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, on each Date of Delivery as specified in the notice from the Representatives to the Company. .
(c) Payment for the Underwritten Securities shall be made to the Company or the Operating Partnership, as the case may be, by wire transfer of immediately available funds to a bank account designated by the Company or the Operating Partnership, as the case may beCompany, against book-entry delivery through the facilities of The Depository Trust Company (“DTC”) to the Representatives for the respective accounts of the Underwriters of the Underwritten Securities to be purchased by them. Certificates for the Underwritten Securities and the Option Securities, if any, shall be in such denominations and registered in such names as the Representatives may request in writing at least two business days before the Closing Time or the relevant Date of Delivery, as the case may be. It is understood that each Underwriter has authorized the Representatives, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Underwritten Securities and the Option Securities, if any, which it has agreed to purchase. The RepresentativesEach of Xxxxx Fargo Securities, LLC, Regions Securities LLC, Scotia Capital (USA) Inc. and SunTrust Xxxxxxxx Xxxxxxxx, Inc., individually and not as representatives representative of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Underwritten Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have not been received by the Closing Time or the relevant Date of Delivery, as the case may beTime, but any such payment shall not relieve such Underwriter from its obligations hereunder. .
(d) The certificates for the Initial Securities and the Option Securities, if any, will to be made available for examination and packaging by the Representatives not later than 10:00 A.M. on the last business day prior to the Closing Time or the relevant Date of Delivery, as the case may be, in New York, New York. If authorized by the applicable Terms Agreement, the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company or the Operating Partnership, as the case may be, so delivered pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially this Agreement shall be issued in the form of Exhibit B hereto one or more global securities which shall be deposited with, or in accordance with such changes therein as the Company or the Operating Partnershipinstructions of, as the case may be, may approve. As compensation for arranging Delayed Delivery Contracts, the Company or the Operating Partnership, as the case may be, will pay to the Representatives at Closing Time, for the respective accounts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified DTC and registered in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors name of the types described in the Prospectus. At the applicable Closing Timeits nominee, the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery Contracts.Cede & Co.
Appears in 1 contract
Samples: Underwriting Agreement (Fedex Corp)
Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on the basis of the representations and warranties herein contained and shall be subject Subject to the terms and conditions herein set forth, the Company agrees to sell to the Underwriters, and each Underwriter, severally and not jointly, agrees to purchase from the Company, at a purchase price per share of $32.1182 (the “Purchase Price”), the number of Initial Securities set forth herein in Schedule I opposite the name of such Underwriter, plus any additional number of Initial Securities which such Underwriter may become obligated to purchase pursuant to the provisions of Section 14 hereof, subject, in each case, to such adjustments among the Underwriters as the Representatives in their sole discretion shall make to eliminate any sales or in the applicable Terms Agreementpurchases of fractional shares.
(b) In addition, on the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company or the Operating Partnership, as the case may be, may grant, if so provided in the applicable Terms Agreement relating to the Initial Underwritten Securities, hereby grants an option to the Underwriters named in such Terms AgreementUnderwriters, severally and not jointly, to purchase up to the number an additional 1,343,283 shares of Option Securities set forth therein Common Stock at the same price per Option Security as is applicable to the Initial Underwritten SecuritiesPurchase Price, less an amount per share equal to any dividends or distributions declared by the Company and paid or payable on the Initial Underwritten Securities but not payable on the Option Securities. Such option, if granted, will expire Shares.
(c) The option hereby granted may be exercised for 30 days (or such lesser number of days as may be specified in the applicable Terms Agreement) after the Representation Date relating to the Initial Underwritten Securities, date hereof and may be exercised in whole or in part from time to time upon notice by the Representatives to of the Company or the Operating Partnership, as the case may be, setting forth the number amount of Option Securities Shares as to which the several Underwriters are then exercising the option and the time, time and date and place of payment and delivery for such Option SecuritiesShares. Any such time, time and additional closing date and place of delivery (a an “Date of DeliveryAdditional Closing Date”) shall be determined by the Representatives, but shall not be later than seven full business days nor earlier than two full business days after the exercise of said option, nor in any event prior to the Closing Time, unless otherwise agreed upon by the Representatives and the Company or the Operating Partnership, as the case may bedate hereof. If the option is exercised as to all or of any portion of the Option SecuritiesShares, each of the Underwriters, acting severally and not jointly, will purchase that proportion of the total number principal amount of Option Securities Shares then being purchased which the number of Initial Underwritten Securities each such Underwriter has severally agreed to purchase as Shares set forth in Schedule I hereto opposite the applicable Terms Agreement name of such Underwriter bears to the total number principal amount of Initial Underwritten Securities Shares.
(except as otherwise provided d) The Initial Shares to be purchased by the Underwriters hereunder shall be delivered by or on behalf of the Company to the Underwriters, through the facilities of The Depository Trust Company for the respective accounts of the Underwriters, against payment by or on behalf of the Underwriters of the purchase price therefor by wire transfer of Federal (same-day) funds to the account specified by the Company to the Underwriters at least twenty-four hours in advance. The time and date of such delivery of the applicable Terms Agreement)Initial Shares and payment therefor shall be 9:30 a.m., subject to New York time, on September 12, 2014 or such adjustments other time and date as the Representatives and the Company may agree upon in their discretion shall make to eliminate writing (such time and date for delivery of the Initial Shares is herein called the “Closing Date” and the Closing Date and any sales or purchases Additional Closing Date, a “Delivery Date” and the time on any such Delivery Date, the “Time of fractional Underwritten SecuritiesDelivery”).
(ce) Payment In the event that any or all of the Option Shares are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates for, the Initial Underwritten Securities to be purchased by the Underwriters such Option Shares shall be made at the offices of Xxxxxxxx Chance US LLP, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000below-mentioned offices, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating PartnershipCompany, as the case may be, at 10:00 A.M. on the fourth business day (or the third business day if required under Rule 15c6-1 of the 1934 Act, or unless postponed in accordance with the provisions of Section 10) following the date of the applicable Terms Agreement or at such other time as shall be agreed upon by the Representatives and the Company (such time and date of payment and delivery being herein called the “relevant Additional Closing Time”). In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates for, such Option Securities shall be made at the above-mentioned offices of Xxxxxxxx Chance US LLP, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, on each Date of Delivery as specified in the notice from the Representatives to the Company. Payment for the Underwritten Securities shall be made to the Company or the Operating Partnership, as the case may be, by wire transfer of immediately available funds to a bank account designated by the Company or the Operating Partnership, as the case may be, against delivery to the Representatives for the respective accounts of the Underwriters of the Underwritten Securities to be purchased by them. Certificates for the Underwritten Securities and the Option Securities, if any, shall be in such denominations and registered in such names as the Representatives may request in writing at least two business days before the Closing Time or the relevant Date of Delivery, as the case may be. It is understood that each Underwriter has authorized the Representatives, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Underwritten Securities and the Option Securities, if any, which it has agreed to purchase. The Representatives, individually and not as representatives of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Underwritten Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have not been received by the Closing Time or the relevant Date of Delivery, as the case may be, but any such payment shall not relieve such Underwriter from its obligations hereunder. The certificates for the Initial Securities and the Option Securities, if any, will be made available for examination and packaging by the Representatives not later than 10:00 A.M. on the last business day prior to the Closing Time or the relevant Date of Delivery, as the case may be, in New York, New York. If authorized by the applicable Terms Agreement, the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company or the Operating Partnership, as the case may be, pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially in the form of Exhibit B hereto with such changes therein as the Company or the Operating Partnership, as the case may be, may approve. As compensation for arranging Delayed Delivery Contracts, the Company or the Operating Partnership, as the case may be, will pay to the Representatives at Closing Time, for the respective accounts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors of the types described in the Prospectus. At the applicable Closing Time, the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery Contracts.
Appears in 1 contract
Samples: Underwriting Agreement (Brookdale Senior Living Inc.)
Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on the basis of the representations and warranties herein contained and shall be subject Subject to the terms and conditions set forth herein or in the applicable Terms Agreement.
(b) In addition, on the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forthherein, the Company or agrees to issue and sell to each of the Operating PartnershipUnderwriters, as the case may be, may grant, if so provided in the applicable Terms Agreement relating to the Initial Underwritten Securities, an option to and each of the Underwriters named in such Terms Agreementagrees, severally and not jointly, to purchase up to from the number Company, at a purchase price of Option 97.835% of the principal amount thereof, the principal amount of Securities set forth therein at opposite the same price per Option Security as is applicable to name of such Underwriter in Schedule I hereto.
(b) Upon the Initial Underwritten authorization by you of the release of the Securities, less an amount equal to any dividends or distributions declared by the Company and paid or payable on the Initial Underwritten Securities but not payable on the Option Securities. Such option, if granted, will expire 30 days (or such lesser number of days as may be specified in the applicable Terms Agreement) after the Representation Date relating to the Initial Underwritten Securities, and may be exercised in whole or in part from time to time upon notice by the Representatives to the Company or the Operating Partnership, as the case may be, setting forth the number of Option Securities as to which the several Underwriters are then exercising propose to offer the option Securities for sale upon the terms and the time, date and place of payment and delivery for such Option Securities. Any such time, date and place of delivery (a “Date of Delivery”) shall be determined by the Representatives, but shall not be later than seven full business days nor earlier than two full business days after the exercise of said option, nor in any event prior to the Closing Time, unless otherwise agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be. If the option is exercised as to all or any portion of the Option Securities, each of the Underwriters, acting severally and not jointly, will purchase that proportion of the total number of Option Securities then being purchased which the number of Initial Underwritten Securities each such Underwriter has severally agreed to purchase as conditions set forth in the applicable Terms Agreement bears to the total number of Initial Underwritten Securities (except as otherwise provided in the applicable Terms Agreement), subject to such adjustments as the Representatives in their discretion shall make to eliminate any sales or purchases of fractional Underwritten SecuritiesProspectus.
(ci) Payment of the purchase price for, and delivery of certificates for, the Initial Underwritten The Securities to be purchased by the Underwriters shall each Underwriter hereunder will be made at the offices represented by one or more definitive global Securities in book-entry form which will be deposited by or on behalf of Xxxxxxxx Chance US LLP, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, at 10:00 A.M. on the fourth business day (or the third business day if required under Rule 15c6-1 of the 1934 Act, or unless postponed in accordance with the provisions of Section 10) following the date of the applicable Terms Agreement or at such other time as shall be agreed upon by the Representatives and the The Depository Trust Company (“DTC”) or its designated custodian. The Company will deliver the Securities to the Representative, for the account of each Underwriter, against payment by or on behalf of such time and date of payment and delivery being herein called the “Closing Time”). In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment Underwriter of the purchase price for, and delivery of certificates for, such Option Securities shall be made at the above-mentioned offices of Xxxxxxxx Chance US LLP, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, on each Date of Delivery as specified in the notice from the Representatives to the Company. Payment for the Underwritten Securities shall be made to the Company or the Operating Partnership, as the case may be, therefor by wire transfer of immediately available Federal (same-day) funds to a bank the account designated specified by the Company or the Operating Partnership, as the case may be, against delivery to the Representatives for Representative at least forty-eight hours in advance, by causing DTC to credit the respective accounts Securities to the account of the Underwriters of the Underwritten Securities to be purchased by them. Certificates for the Underwritten Securities and the Option Securities, if any, shall be in such denominations and registered in such names as the Representatives may request in writing Representative at least two business days before the Closing Time or the relevant Date of Delivery, as the case may be. It is understood that each Underwriter has authorized the Representatives, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Underwritten Securities and the Option Securities, if any, which it has agreed to purchaseDTC. The Representatives, individually and not as representatives of Company will cause the Underwriters, may (but shall not be obligated to) make payment of certificates representing the purchase price for the Underwritten Securities or the Option Securities, if any, to be purchased made available to the Representative for checking and packaging at least twenty-four hours prior to the Time of Delivery (as defined below) with respect thereto at the office of DTC or its designated custodian (the “Designated Office”). The time and date of such delivery and payment shall be 9:30 a.m., New York City time, on January 26, 2010 or such other time and date as the Representative and the Company may agree upon in writing. Such time and date are herein called the “Time of Delivery.”
(ii) The documents to be delivered at the Time of Delivery by or on behalf of the parties hereto pursuant to Section 6 hereof, including the cross receipt for the Securities and any Underwriter whose funds have not been received additional documents requested by the Closing Time or the relevant Date of Delivery, as the case may be, but any such payment shall not relieve such Underwriter from its obligations hereunder. The certificates for the Initial Securities and the Option Securities, if anyUnderwriters pursuant to Section 6 hereof, will be made available for examination and packaging by the Representatives not later than 10:00 A.M. on the last business day prior to the Closing Time or the relevant Date of Delivery, as the case may be, in New York, New York. If authorized by the applicable Terms Agreement, the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company or the Operating Partnership, as the case may be, pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially in the form of Exhibit B hereto with such changes therein as the Company or the Operating Partnership, as the case may be, may approve. As compensation for arranging Delayed Delivery Contracts, the Company or the Operating Partnership, as the case may be, will pay to the Representatives at Closing Time, for the respective accounts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors of the types described in the Prospectus. At the applicable Closing Time, the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery Contracts.delivered
Appears in 1 contract
Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on On the basis of the representations and warranties herein contained and shall be subject to the terms and conditions herein set forth, the Trust agrees to sell to each Underwriter, severally and not jointly, and each Underwriter, severally and not jointly, agrees to purchase from the Trust, at the price per security set forth herein or in the applicable Terms Pricing Agreement, the number of Initial Securities set forth in Schedule A hereto opposite the name of such Underwriter, plus any additional number of Initial Securities which such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereof.
(1) If the Offerors have elected not to rely upon Rule 430A of the 1933 Act Regulations, the initial public offering price per Preferred Security and the purchase price per Initial Security to be paid by the several Underwriters for the Initial Securities have each been determined and set forth in the Pricing Agreement, dated the date hereof, and any necessary amendments to the Registration Statement and the Prospectus will be filed before the Registration Statement becomes effective.
(2) If the Offerors have elected to rely upon Rule 430A of the 1933 Act Regulations, the purchase price per Initial Security to be paid by the several Underwriters shall be an amount equal to the initial public offering price per Initial Security. The initial public offering price per Initial Security shall be a fixed price to be determined by agreement between the Underwriters and the Offerors. The initial public offering price and the purchase price, when so determined, shall be set forth in the Pricing Agreement. In the event that such prices have not been agreed upon and the Pricing Agreement has not been executed and delivered by all parties thereto by the close of business on the fourth business day following the date of this Agreement,
(b) In addition, on the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company or the Operating Partnership, as the case may be, may grant, if so provided in the applicable Terms Agreement relating to the Initial Underwritten Securities, Trust hereby grants an option to the Underwriters named in such Terms AgreementUnderwriters, severally and not jointly, to purchase up to the number of an additional 600,000 Option Securities at the price per security set forth therein at in the same price per Option Security as is applicable to the Initial Underwritten SecuritiesPricing Agreement, less an amount per share equal to any dividends or distributions declared by the Company Trust and paid or payable on the Initial Underwritten Securities but not payable on the Option Securities. Such option, if granted, The option hereby granted will expire 30 days (or such lesser number of days as may be specified in the applicable Terms Agreement) after the Representation Date relating to the Initial Underwritten Securities, and may be exercised in whole or in part from time to time only for the purpose of covering over-allotments which may be made in connection with the offering and distribution of the Initial Securities upon notice by the Representatives Representative to the Company or the Operating Partnership, as the case may be, Trust setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time, time and date and place of payment and delivery for such Option Securities. Any such time, time and date and place of delivery (a “"Date of Delivery”") shall be determined by the Representatives, but shall not be later than seven full business days nor earlier than two full business days after the exercise of said option, nor in any event prior to the Closing Time, as hereinafter defined, unless otherwise agreed upon by the Representatives Representative and the Company or the Operating Partnership, as the case may beTrust. If the option is exercised as to all or any portion of the Option Securities, each of the Underwriters, acting severally and not jointly, will purchase that proportion of the total number of Option Securities then being purchased which the number of Initial Underwritten Securities each such Underwriter has severally agreed to purchase as set forth in Schedule A opposite the applicable Terms Agreement name of such Underwriter bears to the total number of Initial Underwritten Securities (except as otherwise provided in the applicable Terms Pricing Agreement), subject in each case to such adjustments as the Representatives Representative in their its discretion shall make to eliminate any sales or purchases of fractional Underwritten Securitiessecurities.
(c) Payment of the purchase price for, and delivery Delivery of certificates for, for the Initial Underwritten Securities to be purchased by the Underwriters shall be made at the offices of Xxxxxxxx Chance US LLPthe Underwriters in New York, 00 Xxxx 00xx and payment of the purchase price for the Securities shall be made by wire transfer of funds contemporaneous with closing at the offices of Taft, Xxetxxxxxx & Xollxxxxx, 0000 Star Bank Center, 425 Xxxxxx Xxxxxx, Xxx XxxxXxxxxxxxxx, Xxx Xxxx 00000, or xx at such other place as shall be agreed upon by the Representatives Underwriters and the Company or the Operating Partnership, as the case may beOfferors, at 10:00 A.M. a.m. (New York time) on the fourth business day (or the third business day after the date the Registration Statement becomes effective (or, if required under the Offerors have elected to rely upon Rule 15c6-1 430A, the third full business day after execution of the 1934 ActPricing Agreement (or, if pricing of the Securities occurs after 4:30 p.m. Eastern time, on the fourth full business day thereafter)), or unless postponed in accordance with the provisions of Section 10) following the date of the applicable Terms Agreement or at such other time not later than ten business days after such date as shall be agreed upon by the Representatives Underwriters and the Company Offerors (such time and date of payment and delivery being herein called the “"Closing Time”"). In addition, in the event that any or all of the Option Securities are purchased by are
(d) As compensation to the Underwriters, payment Underwriters for their commitments hereunder and in view of the fact that the proceeds of the sale of the Designated Securities will be used to purchase price forthe Subordinated Debentures of the Company, and delivery of certificates for, such Option Securities shall be made the Company hereby agrees to pay at the above-mentioned offices of Xxxxxxxx Chance US LLPClosing Time, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnershiprelevant Date of Delivery, as the case may be, on each Date of Delivery as specified in the notice from the Representatives to the Company. Payment Representatives, for the Underwritten Securities shall be made to the Company or the Operating Partnership, as the case may be, by wire transfer of immediately available funds to a bank account designated by the Company or the Operating Partnership, as the case may be, against delivery to the Representatives for the respective accounts of the Underwriters of several Underwriters, a commission per Designated Security determined by agreement between the Underwritten Representatives and the Company for the Designated Securities to be purchased delivered by them. Certificates for the Underwritten Securities and the Option SecuritiesTrust hereunder at Closing Time, if any, shall be in such denominations and registered in such names as the Representatives may request in writing at least two business days before the Closing Time or the relevant Date of Delivery, as the case may be. It is understood that each Underwriter has authorized the RepresentativesThe commission, for its accountwhen so determined, to accept delivery of, receipt for, and make payment of the purchase price for, the Underwritten Securities and the Option Securities, if any, which it has agreed to purchase. The Representatives, individually and not as representatives of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Underwritten Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have not been received by the Closing Time or the relevant Date of Delivery, as the case may be, but any such payment shall not relieve such Underwriter from its obligations hereunder. The certificates for the Initial Securities and the Option Securities, if any, will be made available for examination and packaging by the Representatives not later than 10:00 A.M. on the last business day prior to the Closing Time or the relevant Date of Delivery, as the case may be, in New York, New York. If authorized by the applicable Terms Agreement, the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company or the Operating Partnership, as the case may be, pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially in the form of Exhibit B hereto with such changes therein as the Company or the Operating Partnership, as the case may be, may approve. As compensation for arranging Delayed Delivery Contracts, the Company or the Operating Partnership, as the case may be, will pay to the Representatives at Closing Time, for the respective accounts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors of the types described in the Prospectus. At the applicable Closing Time, the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Pricing Agreement, less the amount of Underwritten Securities covered by Delayed Delivery Contracts.
Appears in 1 contract
Samples: Underwriting Agreement (American Financial Capital Trust I)
Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on On the basis of the representations and warranties herein contained and shall be subject to the terms and conditions herein set forth, the Offerors agree to sell to each Underwriter, severally and not jointly, and each Underwriter, severally and not jointly, agrees to purchase from the Offerors, at the respective prices set forth herein or in Schedule B, the applicable Terms Agreementnumber of each type of Initial Securities set forth in Schedule A opposite the name of such Underwriter, plus any additional number of Initial Securities which such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereof.
(b) In addition, on the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company or the Operating Partnership, as the case may be, may grant, if so provided in the applicable Terms Agreement relating to the Initial Underwritten Securities, Offerors hereby grant an option to the Underwriters named in such Terms AgreementUnderwriters, severally and not jointly, to purchase up to an additional 2,475,000 Income PRIDES at the number of Option Securities price set forth therein at the same price per Option Security as is applicable to the Initial Underwritten Securities, less an amount equal to any dividends or distributions declared by the Company and paid or payable on the Initial Underwritten Securities but not payable on the Option Securities. Such option, if granted, in Schedule B. The option hereby granted will expire 30 days (or such lesser number of days as may be specified in the applicable Terms Agreement) after the Representation Date relating to the Initial Underwritten Securities, date hereof and may be exercised in whole or in part from time to time only for the purpose of covering over-allotments which may be made in connection with the offering and distribution of the Initial Securities upon notice by the Representatives to the Company or the Operating Partnership, as the case may be, setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time, time and date and place of payment and delivery for such Option Securities. Any such time, time and date and place of delivery (a “"Date of Delivery”") shall be determined by the Representatives, but shall not be later than seven full business days nor earlier than two full business days after the exercise of said option, nor in any event prior to the Closing Time, unless otherwise agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be. If the option is exercised as to all or any portion of the Option Securities, each of the Underwriters, acting severally and not jointly, will purchase that proportion of the total number of Option Securities then being purchased which the number of Initial Underwritten Securities each such Underwriter has severally agreed to purchase as set forth in the applicable Terms Agreement bears to the total number of Initial Underwritten Securities (except as otherwise provided in the applicable Terms Agreement), subject to such adjustments as the Representatives in their discretion shall make to eliminate any sales or purchases of fractional Underwritten Securities.
(c) Payment of the purchase price for, and delivery of certificates for, the Initial Underwritten Securities to be purchased by the Underwriters shall be made at the offices of Xxxxxxxx Chance US LLP, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, at 10:00 A.M. on the fourth business day (or the third business day if required under Rule 15c6-1 of the 1934 Act, or unless postponed in accordance with the provisions of Section 10) following the date of the applicable Terms Agreement or at such other time as shall be agreed upon by the Representatives and the Company (such time and date of payment and delivery being herein called the “Closing Time”). In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates for, such Option Securities shall be made at the above-mentioned offices of Xxxxxxxx Chance US LLP, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, on each Date of Delivery as specified in the notice from the Representatives to the Company. Payment for the Underwritten Securities shall be made to the Company or the Operating Partnership, as the case may be, by wire transfer of immediately available funds to a bank account designated by the Company or the Operating Partnership, as the case may be, against delivery to the Representatives for the respective accounts of the Underwriters of the Underwritten Securities to be purchased by them. Certificates for the Underwritten Securities and the Option Securities, if any, shall be in such denominations and registered in such names as the Representatives may request in writing at least two business days before the Closing Time or the relevant Date of Delivery, as the case may be. It is understood that each Underwriter has authorized the Representatives, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Underwritten Securities and the Option Securities, if any, which it has agreed to purchase. The Representatives, individually and not as representatives of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Underwritten Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have not been received by the Closing Time or the relevant Date of Delivery, as the case may be, but any such payment shall not relieve such Underwriter from its obligations hereunder. The certificates for the Initial Securities and the Option Securities, if any, will be made available for examination and packaging by the Representatives not later than 10:00 A.M. on the last business day prior to the Closing Time or the relevant Date of Delivery, as the case may be, in New York, New York. If authorized by the applicable Terms Agreement, the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company or the Operating Partnership, as the case may be, pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially in the form of Exhibit B hereto with such changes therein as the Company or the Operating Partnership, as the case may be, may approve. As compensation for arranging Delayed Delivery Contracts, the Company or the Operating Partnership, as the case may be, will pay to the Representatives at Closing Time, for the respective accounts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors of the types described in the Prospectus. At the applicable Closing Time, the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery Contracts.each
Appears in 1 contract
Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on the basis of the representations and warranties herein contained and shall be subject to the terms and conditions set forth herein or in the applicable Terms Agreement.
(b) In addition, on On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company or the Operating Partnership, as the case may be, may grant, if so provided in the applicable Terms Agreement relating agrees to the Initial Underwritten Securities, an option sell to the Underwriters named in such Terms Agreementeach Underwriter, severally and not jointly, to purchase up to the number of Option Securities set forth therein at the same price per Option Security as is applicable to the Initial Underwritten Securitiesand each Underwriter, less an amount equal to any dividends or distributions declared by the Company and paid or payable on the Initial Underwritten Securities but not payable on the Option Securities. Such option, if granted, will expire 30 days (or such lesser number of days as may be specified in the applicable Terms Agreement) after the Representation Date relating to the Initial Underwritten Securities, and may be exercised in whole or in part from time to time upon notice by the Representatives to the Company or the Operating Partnership, as the case may be, setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time, date and place of payment and delivery for such Option Securities. Any such time, date and place of delivery (a “Date of Delivery”) shall be determined by the Representatives, but shall not be later than seven full business days nor earlier than two full business days after the exercise of said option, nor in any event prior to the Closing Time, unless otherwise agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be. If the option is exercised as to all or any portion of the Option Securities, each of the Underwriters, acting severally and not jointly, will agrees to purchase that proportion from the Company, the aggregate principal amount of Securities set forth opposite their names on Schedule A at a purchase price of 98.980% of the total number principal amount thereof, plus any additional principal amount of Option Securities then being purchased which the number of Initial Underwritten Securities each such Underwriter has severally agreed may become obligated to purchase as set forth in the applicable Terms Agreement bears pursuant to the total number provisions of Initial Underwritten Securities (except as otherwise provided in the applicable Terms Agreement), subject to such adjustments as the Representatives in their discretion shall make to eliminate any sales or purchases of fractional Underwritten SecuritiesSection 10 hereof.
(cb) Payment of the purchase price for, and delivery of certificates for, the Initial Underwritten Securities to be purchased by the Underwriters shall be made at the offices office of Xxxxxxxx Chance US Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, 00 Xxxx 00xx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, 00000 or at such other place as shall be agreed upon by the Representatives you and the Company or the Operating Partnership, as the case may beCompany, at 10:00 A.M. 7:00 a.m., California time, on the fourth business day (or the third business day if required under Rule 15c6-1 of the 1934 ActAugust 14, 2014, or unless postponed in accordance with the provisions of Section 10) following the date of the applicable Terms Agreement or at such other time not later than ten business days after such date as shall be agreed upon by the Representatives and the Company (such time and date of payment and delivery being herein called the “Closing Time”). In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates for, such Option Securities shall be made at the above-mentioned offices of Xxxxxxxx Chance US LLP, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, on each Date of Delivery as specified in the notice from the Representatives to the Company. Payment for the Underwritten Securities shall be made to the Company or the Operating Partnership, as the case may be, by wire transfer of immediately available funds to a bank account designated by the Company or the Operating Partnership, as the case may be, against delivery to the Representatives for the respective accounts of the Underwriters of certificates for the Underwritten Securities to be purchased by them. Certificates for the Underwritten Securities and the Option Securities, if any, shall be in such denominations and registered in such names as the Representatives may request in writing at least two one business days day before the Closing Time or the relevant Date of Delivery, as the case may beTime. It is understood that each Underwriter has authorized the Representatives, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Underwritten Securities and the Option Securities, if any, which it such Underwriter has agreed to purchase. The RepresentativesUBS Securities LLC, individually and not as representatives representative of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Underwritten Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have check has not been received by the Closing Time or the relevant Date of Delivery, as the case may beTime, but any such payment shall not relieve release such Underwriter from its obligations hereunder. The certificates for the Initial Securities and the Option Securities, if any, will be made available for examination and packaging by the Representatives not later than 10:00 A.M. a.m. on the last business day prior to the Closing Time or the relevant Date of Delivery, as the case may be, in New York, New York. If authorized by the applicable Terms Agreement, the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company or the Operating Partnership, as the case may be, pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially in the form of Exhibit B hereto with such changes therein as the Company or the Operating Partnership, as the case may be, may approve. As compensation for arranging Delayed Delivery Contracts, the Company or the Operating Partnership, as the case may be, will pay to the Representatives at Closing Time, for the respective accounts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors of the types described in the Prospectus. At the applicable Closing Time, the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery Contracts.
Appears in 1 contract
Samples: Underwriting Agreement (Hcp, Inc.)
Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on On the basis of the representations and warranties herein contained and shall be subject to the terms and conditions herein set forth, the Company hereby agrees to sell to the Underwriters, severally and not jointly, the respective numbers of Initial Securities set forth herein opposite the name of the Company in Exhibit B hereto, and each Underwriter, severally and not jointly, agrees to purchase the respective number of Initial Securities set forth opposite the name of such Underwriter on Exhibit A hereto, plus any additional number of Initial Securities which such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereof, subject to such adjustments among the Underwriters as the Representatives in their sole discretion shall make to eliminate any sales or purchases of fractional Securities, in each case at a purchase price of $[•] per share (the applicable Terms Agreement"Purchase Price").
(b) In addition, on the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company or the Operating Partnership, as the case may be, may grant, if so provided in the applicable Terms Agreement relating to the Initial Underwritten Securities, hereby grants an option to the Underwriters named in such Terms AgreementUnderwriters, severally and not jointly, to purchase up to the number of [•] Option Securities set forth therein at the same a price per Option Security as is applicable share equal to the Initial Underwritten Securities, less Purchase Price referred to in Section 2(a) above; provided that the price per share for any Option Securities shall be reduced by an amount per share equal to any dividends or distributions declared paid by the Company and paid or payable on the Initial Underwritten Securities but not payable on the such Option Securities. Such option, if granted, The option hereby granted will expire 30 days at 11:59 P.M. (or such lesser number of days as may be specified in New York City time) on the applicable Terms Agreement) 30th day after the Representation Date relating to the Initial Underwritten Securities, date hereof and may be exercised on up to three occasions in whole or in part from time to time only for the purpose of covering over-allotments which may be made in connection with the offering and distribution of the Initial Securities upon notice by the Representatives to the Company or the Operating Partnership, as the case may be, setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time, time and date and place of payment and delivery for such Option Securities. Any such time, time and date and place of delivery (a “Date of Delivery”an "Option Closing Date") shall be determined by the Representatives, but shall not be later than seven full business days nor earlier than two full business days after the exercise of said option, nor in any event prior to the Closing Time, unless otherwise agreed upon by the Representatives and the Company or the Operating Partnership, as the case may beDate. If the option is exercised as to all or any portion of the Option Securities, the Company will sell to the Underwriters that proportion of the total number of Option Securities then being purchased which the number of Option Securities set forth in Section 2(b), and each of the Underwriters, acting severally and not jointly, will purchase that proportion of the total number of Option Securities then being purchased which the number of Initial Underwritten Securities each such Underwriter has severally agreed to purchase as set forth in Exhibit A opposite the applicable Terms Agreement name of such Underwriter, plus any additional number of Initial Securities which such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereof, bears to the total number of Initial Underwritten Securities (except as otherwise provided in the applicable Terms Agreement)Securities, subject in each case to such adjustments as the Representatives in their discretion shall make to eliminate any sales or purchases of fractional Underwritten Securitiesshares.
(c) Payment of the purchase price for, and delivery of certificates for, the Initial Underwritten Securities to be purchased by the Underwriters shall be made at the offices of Xxxxxxxx Chance Clxxxxxx Xhance US LLP, 00 31 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may beCompany, at 10:00 A.M. (New York City time) on the fourth business day [•], 2011 (or the third business day if required under Rule 15c6-1 of the 1934 Act, or unless postponed in accordance with the provisions of Section 10) following the date of the applicable Terms Agreement ), or at such other time not later than ten business days after such date as shall be agreed upon by the Representatives and the Company (such time and date of payment and delivery being herein called the “"Closing Time”Date"). In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates for, such Option Securities shall be made at 10:00 A.M. (New York City time) at the above-mentioned offices of Xxxxxxxx Chance US LLPoffices, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may beCompany, on each Option Closing Date of Delivery as specified in the notice from the Representatives to the Company. Payment for the Underwritten Securities shall be made to the Company or the Operating Partnership, as the case may be, by wire transfer of immediately available funds to a single bank account designated by the Company or the Operating Partnership, as the case may be, against delivery to the Representatives for the respective accounts of the Underwriters of the Underwritten Securities to be purchased by them. Certificates for the Underwritten Securities and the Option Securities, if any, shall be in such denominations and registered in such names as the Representatives may request in writing at least two business days before the Closing Time or the relevant Date of Delivery, as the case may be. It is understood that each Underwriter has authorized the Representatives, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Underwritten Initial Securities and the Option Securities, if any, which it has agreed to purchase. The Each of the Representatives, individually and not as representatives representative of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Underwritten Initial Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have not been received by the Closing Time Date or the relevant Date of DeliveryOption Closing Date, as the case may be, but any such payment shall not relieve such Underwriter from its obligations hereunder.
(d) Certificates for the Initial Securities and the Option Securities, if any, shall be in such denominations and registered in such names as the Representatives may request in writing at least one full business day before the Closing Date or the relevant Option Closing Date, as the case may be. The certificates for the Initial Securities and the Option Securities, if any, will be made available for examination and packaging by the Representatives in The City of New York not later than 10:00 A.M. noon (New York time) on the last business day prior to the Closing Time Date or the relevant Date of DeliveryOption Closing Date, as the case may be, in New York, New York. If authorized by the applicable Terms Agreement, the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company or the Operating Partnership, as the case may be, pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially in the form of Exhibit B hereto with such changes therein as the Company or the Operating Partnership, as the case may be, may approve. As compensation for arranging Delayed Delivery Contracts, the Company or the Operating Partnership, as the case may be, will pay to the Representatives at Closing Time, for the respective accounts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors of the types described in the Prospectus. At the applicable Closing Time, the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery Contracts.
Appears in 1 contract
Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on On the basis of the representations and warranties herein contained and shall be subject to the terms and conditions herein set forth, the Company hereby agrees to sell to the Underwriters, severally and not jointly, the respective numbers of Initial Securities set forth herein opposite the name of the Company in Exhibit B hereto, and each Underwriter, severally and not jointly, agrees to purchase the respective number of Initial Securities set forth opposite the name of such Underwriter on Exhibit A hereto, plus any additional number of Initial Securities which such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereof, subject to such adjustments among the Underwriters as the Representatives in their sole discretion shall make to eliminate any sales or purchases of fractional Securities, in each case at a purchase price of $14.92 per share (the applicable Terms Agreement"Purchase Price").
(b) In addition, on the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company or the Operating Partnership, as the case may be, may grant, if so provided in the applicable Terms Agreement relating to the Initial Underwritten Securities, hereby grants an option to the Underwriters named in such Terms AgreementUnderwriters, severally and not jointly, to purchase up to the number of 525,000 Option Securities set forth therein at the same a price per Option Security as is applicable share equal to the Initial Underwritten Securities, less Purchase Price referred to in Section 2(a) above; provided that the price per share for any Option Securities shall be reduced by an amount per share equal to any dividends or distributions declared paid by the Company and paid or payable on the Initial Underwritten Securities but not payable on the such Option Securities. Such option, if granted, The option hereby granted will expire 30 days at 11:59 P.M. (or such lesser number of days as may be specified in New York City time) on the applicable Terms Agreement) 30th day after the Representation Date relating to the Initial Underwritten Securities, date hereof and may be exercised on up to three occasions in whole or in part from time to time only for the purpose of covering over-allotments which may be made in connection with the offering and distribution of the Initial Securities upon notice by the Representatives to the Company or the Operating Partnership, as the case may be, setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time, time and date and place of payment and delivery for such Option Securities. Any such time, time and date and place of delivery (a “Date of Delivery”an "Option Closing Date") shall be determined by the Representatives, but shall not be later than seven full business days nor earlier than two full business days after the exercise of said option, nor in any event prior to the Closing Time, unless otherwise agreed upon by the Representatives and the Company or the Operating Partnership, as the case may beDate. If the option is exercised as to all or any portion of the Option Securities, the Company will sell to the Underwriters that proportion of the total number of Option Securities then being purchased which the number of Option Securities set forth in Section 2(b), and each of the Underwriters, acting severally and not jointly, will purchase that proportion of the total number of Option Securities then being purchased which the number of Initial Underwritten Securities each such Underwriter has severally agreed to purchase as set forth in Exhibit A opposite the applicable Terms Agreement name of such Underwriter, plus any additional number of Initial Securities which such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereof, bears to the total number of Initial Underwritten Securities (except as otherwise provided in the applicable Terms Agreement)Securities, subject in each case to such adjustments as the Representatives in their discretion shall make to eliminate any sales or purchases of fractional Underwritten Securitiesshares.
(c) Payment of the purchase price for, and delivery of certificates for, the Initial Underwritten Securities to be purchased by the Underwriters shall be made at the offices of Xxxxxxxx Cxxxxxxx Chance US LLP, 00 30 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may beCompany, at 10:00 A.M. (New York City time) on the fourth business day February 3, 2012 (or the third business day if required under Rule 15c6-1 of the 1934 Act, or unless postponed in accordance with the provisions of Section 10) following the date of the applicable Terms Agreement ), or at such other time not later than ten business days after such date as shall be agreed upon by the Representatives and the Company (such time and date of payment and delivery being herein called the “"Closing Time”Date"). In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates for, such Option Securities shall be made at 10:00 A.M. (New York City time) at the above-mentioned offices of Xxxxxxxx Chance US LLPoffices, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may beCompany, on each Option Closing Date of Delivery as specified in the notice from the Representatives to the Company. Payment for the Underwritten Securities shall be made to the Company or the Operating Partnership, as the case may be, by wire transfer of immediately available funds to a single bank account designated by the Company or the Operating Partnership, as the case may be, against delivery to the Representatives for the respective accounts of the Underwriters of the Underwritten Securities to be purchased by them. Certificates for the Underwritten Securities and the Option Securities, if any, shall be in such denominations and registered in such names as the Representatives may request in writing at least two business days before the Closing Time or the relevant Date of Delivery, as the case may be. It is understood that each Underwriter has authorized the Representatives, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Underwritten Initial Securities and the Option Securities, if any, which it has agreed to purchase. The Each of the Representatives, individually and not as representatives representative of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Underwritten Initial Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have not been received by the Closing Time Date or the relevant Date of DeliveryOption Closing Date, as the case may be, but any such payment shall not relieve such Underwriter from its obligations hereunder.
(d) Certificates for the Initial Securities and the Option Securities, if any, shall be in such denominations and registered in such names as the Representatives may request in writing at least one full business day before the Closing Date or the relevant Option Closing Date, as the case may be. The certificates for the Initial Securities and the Option Securities, if any, will be made available for examination and packaging by the Representatives in The City of New York not later than 10:00 A.M. noon (New York time) on the last business day prior to the Closing Time Date or the relevant Date of DeliveryOption Closing Date, as the case may be, in New York, New York. If authorized by the applicable Terms Agreement, the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company or the Operating Partnership, as the case may be, pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially in the form of Exhibit B hereto with such changes therein as the Company or the Operating Partnership, as the case may be, may approve. As compensation for arranging Delayed Delivery Contracts, the Company or the Operating Partnership, as the case may be, will pay to the Representatives at Closing Time, for the respective accounts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors of the types described in the Prospectus. At the applicable Closing Time, the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery Contracts.
Appears in 1 contract
Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on On the basis of the representations and warranties herein contained contained, and shall be subject to the terms and conditions herein set forth, the Company agrees to sell to each Underwriter severally, and not jointly, and each Underwriter agrees to purchase from the Company, at the price per share set forth herein or in the applicable Pricing Agreement, the number of Initial Securities set forth in Schedule A opposite the name of such Underwriter (except as otherwise provided in the Pricing Agreement), plus any additional number of Initial Securities which such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereof.
(1) If the Company has elected not to rely upon Rule 430A under the 1933 Act Regulations, the initial public offering price per Security, the dividend rate, the call price (including related premium) payable upon redemption, in each case, in respect of each Security, and the purchase price per Security to be paid by the several Underwriters for the Securities (collectively, the "Pricing Terms") have each been determined and set forth in the Pricing Agreement, dated the date hereof, and an amendment to the Registration Statement and the Prospectus will be filed before the Registration Statement becomes effective.
(2) If the Company has elected to rely upon Rule 430A under the 1933 Act Regulations, the purchase price per Security to be paid by the several Underwriters shall be an amount equal to the initial public offering price per Security, less an amount per Security to be determined by agreement between the Underwriters and the Company. The Pricing Terms likewise shall be determined by agreement between the Underwriters and the Company. The Pricing Terms, when so determined, shall be set forth in the Pricing Agreement. In the event that such Pricing Terms have not been agreed upon and the Pricing Agreement has not been executed and delivered by the parties thereto by the close of business on the fourth business day following the date of this Agreement, this Agreement shall terminate forthwith, without liability of any party to any other party, unless otherwise agreed to by the Company and the Underwriters.
(b) In addition, on the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company or the Operating Partnership, as the case may be, may grant, if so provided in the applicable Terms Agreement relating to the Initial Underwritten Securities, hereby grants an option to the Underwriters named in such Terms AgreementUnderwriters, severally and not jointly, to purchase from it up to an additional _________ shares of the number of Option Securities at the price per share set forth therein in the Pricing Agreement. The option hereby granted will expire automatically at the same price per Option Security as is applicable to close of business on the Initial Underwritten Securities30th calendar day after (i) the later of the date the Registration Statement and any Rule 462(b) Registration Statement becomes effective, less an amount equal to any dividends or distributions declared by if the Company and paid has elected not to rely upon Rule 430A under the 1933 Act Regulations, or payable on (ii) the Initial Underwritten Securities but not payable on the Option Securities. Such optionRepresentation Date, if granted, will expire 30 days (or such lesser number of days as may be specified in the applicable Terms Agreement) after Company has elected to rely upon Rule 430A under the Representation Date relating to the Initial Underwritten Securities1933 Act Regulations, and may be exercised in whole or in part from time to time only for the purpose of covering over-allotments which may be made in connection with the offering and distribution of the Initial Securities upon notice by the Representatives Underwriters to the Company or the Operating Partnership, as the case may be, setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time, time and date and place of payment and delivery for such Option Securities. Any such time, time and date and place of delivery (a “"Date of Delivery”") shall be determined by the Representatives, Underwriters but shall not be later than seven full business days nor earlier than two full business days after the exercise of said such option, nor in any event prior to before the Closing Time, as hereinafter defined, unless otherwise agreed upon by the Representatives Underwriters and the Company or the Operating Partnership, as the case may beCompany. If the option is exercised as to all or any portion of the Option Securities, each of the Underwriters, acting severally and not jointly, will purchase that proportion of the total number of Option Securities then being purchased which the number of Initial Underwritten Securities each such Underwriter has severally agreed to purchase as set forth in Schedule A opposite the applicable Terms Agreement name of such Underwriter bears to the total number of Initial Underwritten Securities (except as otherwise provided in the applicable Terms Pricing Agreement), subject in each case to such adjustments as the Representatives Underwriters in their discretion shall make to eliminate any sales or purchases of fractional Underwritten Securitiesshares.
(c) Payment of the purchase price for, and delivery of certificates for, the Initial Underwritten Securities to be purchased by the Underwriters shall be made at the offices of Xxxxxxxx Chance US LLP, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, at 10:00 A.M. on the fourth business day (or the third business day if required under Rule 15c6-1 of the 1934 Act, or unless postponed in accordance with the provisions of Section 10) following the date of the applicable Terms Agreement or at such other time as shall be agreed upon by the Representatives and the Company (such time and date of payment and delivery being herein called the “Closing Time”). In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates for, such Option Securities shall be made at the above-mentioned offices of Xxxxxxxx Chance US LLP, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, on each Date of Delivery as specified in the notice from the Representatives to the Company. Payment for the Underwritten Securities shall be made to the Company or the Operating Partnership, as the case may be, by wire transfer of immediately available funds to a bank account designated by the Company or the Operating Partnership, as the case may be, against delivery to the Representatives for the respective accounts of the Underwriters of the Underwritten Securities to be purchased by them. Certificates for the Underwritten Securities and the Option Securities, if any, shall be in such denominations and registered in such names as the Representatives may request in writing at least two business days before the Closing Time or the relevant Date of Delivery, as the case may be. It is understood that each Underwriter has authorized the Representatives, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Underwritten Securities and the Option Securities, if any, which it has agreed to purchase. The Representatives, individually and not as representatives of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Underwritten Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have not been received by the Closing Time or the relevant Date of Delivery, as the case may be, but any such payment shall not relieve such Underwriter from its obligations hereunder. The certificates for the Initial Securities and the Option Securities, if any, will be made available for examination and packaging by the Representatives not later than 10:00 A.M. on the last business day prior to the Closing Time or the relevant Date of Delivery, as the case may be, in New York, New York. If authorized by the applicable Terms Agreement, the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company or the Operating Partnership, as the case may be, pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially in the form of Exhibit B hereto with such changes therein as the Company or the Operating Partnership, as the case may be, may approve. As compensation for arranging Delayed Delivery Contracts, the Company or the Operating Partnership, as the case may be, will pay to the Representatives at Closing Time, for the respective accounts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors of the types described in the Prospectus. At the applicable Closing Time, the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery Contracts.
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Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on the basis of the representations and warranties herein contained and shall be subject to the terms and conditions set forth herein or in the applicable Terms Agreement.
(b) In addition, on On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company or the Operating Partnership, as the case may be, may grant, if so provided in the applicable Terms Agreement relating Trust agrees to the Initial Underwritten Securities, an option sell to the Underwriters named in such Terms Agreementeach Underwriter, severally and not jointly, to purchase up to the number of Option Securities set forth therein at the same price per Option Security as is applicable to the Initial Underwritten Securitiesand each Underwriter, less an amount equal to any dividends or distributions declared by the Company and paid or payable on the Initial Underwritten Securities but not payable on the Option Securities. Such option, if granted, will expire 30 days (or such lesser number of days as may be specified in the applicable Terms Agreement) after the Representation Date relating to the Initial Underwritten Securities, and may be exercised in whole or in part from time to time upon notice by the Representatives to the Company or the Operating Partnership, as the case may be, setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time, date and place of payment and delivery for such Option Securities. Any such time, date and place of delivery (a “Date of Delivery”) shall be determined by the Representatives, but shall not be later than seven full business days nor earlier than two full business days after the exercise of said option, nor in any event prior to the Closing Time, unless otherwise agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be. If the option is exercised as to all or any portion of the Option Securities, each of the Underwriters, acting severally and not jointly, will agrees to purchase that proportion of from the total number of Option Securities then being purchased which Trust, at the price per security set forth in the Schedule B, the number of Initial Underwritten Capital Securities each such Underwriter has severally agreed to purchase as set forth in Schedule A opposite the applicable Terms Agreement bears to the total number name of Initial Underwritten Securities such Underwriter (except as otherwise provided in the applicable Terms AgreementSchedule B), subject plus any additional number of Initial Capital Securities that such Underwriter may become obligated to such adjustments as purchase pursuant to the Representatives provisions of Section 8 hereof. The purchase price per security to be paid by the several Underwriters for the Initial Capital Securities shall be an amount equal to the initial public offering price. The initial public offering price per Capital Security and the purchase price per Capital Security are set forth in Schedule B. As compensation to the Underwriters for their discretion shall make commitments hereunder and in view of the fact that the proceeds of the sale of the Initial Capital Securities will be used to eliminate any sales or purchases purchase the Junior Subordinated Notes of fractional Underwritten Securities.the Company, the Company hereby agrees to pay at the Closing Time to the Underwriters, a commission per Initial Capital Security determined by agreement between the Representative and the Company for the Initial Capital Securities to be delivered by the Trust hereunder at the Closing Time. The commission is set forth in Schedule B.
(cb) Payment of the purchase price for, and delivery of certificates for, the Initial Underwritten Capital Securities to be purchased by the Underwriters shall be made at the offices office of Xxxxxxxx Chance US & Xxxxxxxx LLP, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as shall be agreed upon by the Representatives Representative, the Company and the Company or the Operating Partnership, as the case may beTrust, at 10:00 9:00 A.M. New York time on the fourth fifth business day (or the third business day if required under Rule 15c6-1 of the 1934 Act, or unless postponed in accordance with the provisions of Section 10) following 8) after the date of the applicable Terms Agreement hereof, or at such other time not later than ten business days after such date as shall be agreed upon by the Representatives Representative, the Trust and the Company (such time and date of payment and delivery being herein called the “"Closing Time”"). Payment shall be made to the Trust by wire transfer or certified or official bank check or similar same day funds payable to the order of the Trust to an account designated by the Trust, against delivery to the Representative for the respective accounts of the Underwriters of certificates for the Initial Capital Securities to be purchased by them. Unless otherwise agreed, certificates for the Initial Capital Securities shall be in the form set forth in the Declaration, and such certificates shall be deposited with a custodian (the "Custodian") for The Depository Trust Company ("DTC") and registered in the name of Cede & Co., as nominee for DTC. 10
(c) In addition, on the basis of the representations and warranties herein contained, and subject to the terms and conditions herein set forth, the Trust grants the Option to the Underwriters, severally and not jointly, to purchase up to an additional 5,400,000 Option Capital Securities at the same price per security determined as provided above for the Initial Capital Securities plus any accrued distributions thereon. The Option hereby granted may be exercised only once and will expire 30 days after the date hereof, and may be exercised, in whole or in part, solely for the purpose of covering over-allotments upon written notice by the Representative to the Trust and the Company setting forth the number of Option Capital Securities as to which the several Underwriters are exercising the Option. The Representative, the Trust and the Company shall mutually agree on the time and date of payment and delivery of the Option Capital Securities. Such time and date of delivery (the "Option Closing Time") shall not be later than six business days after the exercise of the Option and not, in any event, prior to the Closing Time. If the Option is exercised as to all or any portion of the Option Capital Securities, the Option Capital Securities as to which the Option is exercised shall be purchased by the Underwriters, severally and not jointly, in proportion to, as nearly as practicable, their respective Initial Capital Securities underwriting obligations as set forth on Schedule A. The Company hereby agrees to pay at the Option Closing Time to the Representative, for the accounts of the several Underwriters, a commission per Option Capital Security equal to the commission set forth on Schedule B. In addition, in the event that any or all of the Option Capital Securities are purchased by the Underwriters, delivery and payment of for the purchase price for, and delivery of certificates for, such Option Capital Securities shall be made at the above-mentioned offices of Xxxxxxxx Chance US & Xxxxxxxx LLP, or at such other place as the Trust, the Company and the Representative shall determine, at the specified Option Closing Time. Delivery of the Option Capital Securities shall be agreed upon made to the Representative against payment by the Representatives Underwriters through the Representative of the purchase price thereof to or upon the order of the Trust in the manner set forth in Section 2(b) above. Unless otherwise agreed, certificates for the Option Capital Securities shall be in the form set forth in the Declaration, and such certificates shall be deposited with the Company Custodian for DTC and registered in the name of Cede & Co., as nominee for DTC.
(d) At the Closing Time, or at the Operating PartnershipOption Closing Time, as the case may be, on each Date of Delivery as specified in the notice from Company will pay, or cause to be paid, the Representatives commission payable at such time to the Company. Payment for the Underwritten Securities shall be made to the Company or the Operating Partnership, as the case may be, Underwriters under this Section 2 hereof by wire transfer of immediately available funds to a or certified or official bank account designated by the Company check or the Operating Partnership, as the case may be, against delivery checks payable to the Representatives for the respective accounts of the Underwriters of the Underwritten Securities to be purchased by them. Certificates for the Underwritten Securities and the Option Securities, if any, shall be Representative in such denominations and registered in such names as the Representatives may request in writing at least two business days before the Closing Time or the relevant Date of Delivery, as the case may be. It is understood that each Underwriter has authorized the Representatives, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Underwritten Securities and the Option Securities, if any, which it has agreed to purchase. The Representatives, individually and not as representatives of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Underwritten Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have not been received by the Closing Time or the relevant Date of Delivery, as the case may be, but any such payment shall not relieve such Underwriter from its obligations hereunder. The certificates for the Initial Securities and the Option Securities, if any, will be made available for examination and packaging by the Representatives not later than 10:00 A.M. on the last business same day prior to the Closing Time or the relevant Date of Delivery, as the case may be, in New York, New York. If authorized by the applicable Terms Agreement, the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company or the Operating Partnership, as the case may be, pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially in the form of Exhibit B hereto with such changes therein as the Company or the Operating Partnership, as the case may be, may approve. As compensation for arranging Delayed Delivery Contracts, the Company or the Operating Partnership, as the case may be, will pay to the Representatives at Closing Time, for the respective accounts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors of the types described in the Prospectus. At the applicable Closing Time, the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery Contractsfunds.
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Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on the basis of the representations and warranties herein contained and shall be subject to the terms and conditions set forth herein or in the applicable Terms Agreement.
(b) In addition, on On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company or the Operating Partnership, as the case may be, may grant, if so provided in the applicable Terms Agreement relating Seller agrees to the Initial Underwritten Securities, an option sell to the Underwriters named in such Terms Agreementeach Underwriter and each Underwriter agrees, severally and not jointly, to purchase up to from the number of Option Securities Seller, the Underwritten Notes set forth therein opposite its name in the Pricing Agreement at the same price per Option Security as is applicable respective prices to the Initial Underwritten Securities, less an amount equal to any dividends or distributions declared by the Company and paid or payable on the Initial Underwritten Securities but not payable on the Option Securities. Such option, if granted, will expire 30 days (or such lesser number of days as may be specified in the applicable Terms Agreement) after the Representation Date relating to the Initial Underwritten Securities, and may be exercised in whole or in part from time to time upon notice by the Representatives to the Company or the Operating Partnership, as the case may be, setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time, date and place of payment and delivery for such Option Securities. Any such time, date and place of delivery (a “Date of Delivery”) shall be determined by agreement between the RepresentativesSeller and you, but which prices shall be set forth in the Pricing Agreement. In the event that such prices have not be later than seven full been agreed upon and the Pricing Agreement has not been executed and delivered by all parties thereto by the close of business days nor earlier than two full on the fourth business days after day following the exercise date of said optionthis Agreement, nor in this Agreement shall terminate forthwith, without liability of any event prior party to the Closing Timeany other party, unless otherwise agreed upon to by the Representatives Seller and the Company or the Operating Partnership, as the case may be. If the option is exercised as to all or any portion of the Option Securities, each of the Underwriters, acting severally and not jointly, will purchase that proportion of the total number of Option Securities then being purchased which the number of Initial Underwritten Securities each such Underwriter has severally agreed to purchase as set forth in the applicable Terms Agreement bears to the total number of Initial Underwritten Securities (except as otherwise provided in the applicable Terms Agreement), subject to such adjustments as the Representatives in their discretion shall make to eliminate any sales or purchases of fractional Underwritten Securitiesyou.
(cb) Payment of the purchase price for, and delivery of certificates forof, the Initial Underwritten Securities to be purchased by the Underwriters Notes shall be made at the offices office of Xxxxxxxx Chance US Shearman & Sterling LLP, 00 Xxxx 00xx 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, Seller at 10:00 A.M. on the fourth business day (or the third business day if required under Rule 15c6-1 of the 1934 ActMarch 2, 2016, or unless postponed in accordance with the provisions of Section 10) following the date of the applicable Terms Agreement or at such other time as shall be agreed upon by the Representatives and the Company Seller (such time and date of payment and delivery being herein called the “Closing Time” and such date of delivery being called the “Closing Date”). In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates for, such Option Securities Payment shall be made at the above-mentioned offices of Xxxxxxxx Chance US LLP, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may be, on each Date of Delivery as specified in the notice from the Representatives to the Company. Payment for the Underwritten Securities shall be made to the Company or the Operating Partnership, as the case may be, by wire transfer of immediately available Seller in same day funds to a bank account designated by the Company or the Operating Partnership, as the case may be, against delivery to the Representatives for the respective accounts of the Underwriters of the Underwritten Securities to be purchased by themNotes to, or at the direction of, the Representatives. Certificates for the The Underwritten Securities and the Option Securities, if any, Notes shall be in such denominations and registered in such names as the Representatives may request in writing at least two business days before the Closing Time or the relevant Date of Delivery, as the case may beTime. It is understood that each Underwriter has authorized the Representatives, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the The Underwritten Securities and the Option Securities, if anyNotes, which it has agreed to purchase. The Representatives, individually and not as representatives of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Underwritten Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have not been received by the Closing Time or the relevant Date of Delivery, as the case may be, but any such payment shall not relieve such Underwriter from its obligations hereunder. The certificates for the Initial Securities and the Option Securities, if anyin temporary form, will be made available for examination and packaging by the Representatives not later than 10:00 A.M. on the last business day prior to Closing Time. The Underwritten Notes will be represented initially by Underwritten Notes registered in the Closing Time or the relevant Date name of Delivery, as the case may be, in New York, New York. If authorized by the applicable Terms AgreementCede & Co., the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company or the Operating Partnership, as the case may be, pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially in the form nominee of Exhibit B hereto with such changes therein as the Company or the Operating Partnership, as the case may be, may approve. As compensation for arranging Delayed Delivery Contracts, the Company or the Operating Partnership, as the case may be, will pay to the Representatives at Closing Time, for the respective accounts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors of the types described in the Prospectus. At the applicable Closing Time, the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery ContractsDepository Trust Company.
Appears in 1 contract
Samples: Underwriting Agreement (John Deere Owner Trust 2016)
Sale and Delivery to Underwriters Closing. (a) The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on On the basis of the representations and warranties herein contained and shall be subject to the terms and conditions herein set forth, the Company hereby agrees to sell to the Underwriters, severally and not jointly, the respective numbers of Initial Securities set forth herein opposite the name of the Company in Exhibit B hereto, and each Underwriter, severally and not jointly, agrees to purchase the respective number of Initial Securities set forth opposite the name of such Underwriter on Exhibit A hereto, plus any additional number of Initial Securities which such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereof, subject to such adjustments among the Underwriters as the Representatives in their sole discretion shall make to eliminate any sales or purchases of fractional Securities, in each case at a purchase price of $16.89 per share (the applicable Terms Agreement“Purchase Price”).
(b) In addition, on the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company or the Operating Partnership, as the case may be, may grant, if so provided in the applicable Terms Agreement relating to the Initial Underwritten Securities, hereby grants an option to the Underwriters named in such Terms AgreementUnderwriters, severally and not jointly, to purchase up to the number of 525,000 Option Securities set forth therein at the same a price per Option Security as is applicable share equal to the Initial Underwritten Securities, less Purchase Price referred to in Section 2(a) above; provided that the price per share for any Option Securities shall be reduced by an amount per share equal to any dividends or distributions declared paid by the Company and paid or payable on the Initial Underwritten Securities but not payable on the such Option Securities. Such option, if granted, The option hereby granted will expire 30 days at 11:59 P.M. (or such lesser number of days as may be specified in New York City time) on the applicable Terms Agreement) 30th day after the Representation Date relating to the Initial Underwritten Securities, date hereof and may be exercised on up to three occasions in whole or in part from time to time upon notice by the Representatives to the Company or the Operating Partnership, as the case may be, setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time, time and date and place of payment and delivery for such Option Securities. Any such time, time and date and place of delivery (a an “Date of DeliveryOption Closing Date”) shall be determined by the Representatives, but shall not be later than seven full business days nor earlier than two full business days after the exercise of said option, nor in any event prior to the Closing Time, unless otherwise agreed upon by the Representatives and the Company or the Operating Partnership, as the case may beDate. If the option is exercised as to all or any portion of the Option Securities, the Company will sell to the Underwriters that proportion of the total number of Option Securities then being purchased which the number of Option Securities set forth in Section 2(b), and each of the Underwriters, acting severally and not jointly, will purchase that proportion of the total number of Option Securities then being purchased which the number of Initial Underwritten Securities each such Underwriter has severally agreed to purchase as set forth in Exhibit A opposite the applicable Terms Agreement name of such Underwriter, plus any additional number of Initial Securities which such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereof, bears to the total number of Initial Underwritten Securities (except as otherwise provided in the applicable Terms Agreement)Securities, subject in each case to such adjustments as the Representatives in their discretion shall make to eliminate any sales or purchases of fractional Underwritten Securitiesshares.
(c) Payment of the purchase price for, and delivery of certificates for, the Initial Underwritten Securities to be purchased by the Underwriters shall be made at the offices of Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx Chance US LLP, 00 Xxx Xxx Xxxx 00xx XxxxxxXxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may beCompany, at 10:00 A.M. (New York City time) on the fourth business day April 15, 2015 (or the third business day if required under Rule 15c6-1 of the 1934 Act, or unless postponed in accordance with the provisions of Section 10) following the date of the applicable Terms Agreement ), or at such other time not later than ten business days after such date as shall be agreed upon by the Representatives and the Company (such time and date of payment and delivery being herein called the “Closing TimeDate”). In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates for, such Option Securities shall be made at 10:00 A.M. (New York City time) at the above-mentioned offices of Xxxxxxxx Chance US LLPoffices, or at such other place as shall be agreed upon by the Representatives and the Company or the Operating Partnership, as the case may beCompany, on each Option Closing Date of Delivery as specified in the notice from the Representatives to the Company. Payment for the Underwritten Securities shall be made to the Company or the Operating Partnership, as the case may be, by wire transfer of immediately available funds to a single bank account designated by the Company or the Operating Partnership, as the case may be, against delivery to the Representatives for the respective accounts of the Underwriters of the Underwritten Securities to be purchased by them. Certificates for the Underwritten Securities and the Option Securities, if any, shall be in such denominations and registered in such names as the Representatives may request in writing at least two business days before the Closing Time or the relevant Date of Delivery, as the case may be. It is understood that each Underwriter has authorized the Representatives, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Underwritten Initial Securities and the Option Securities, if any, which it has agreed to purchase. The Each of the Representatives, individually and not as representatives representative of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Underwritten Initial Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have not been received by the Closing Time Date or the relevant Date of DeliveryOption Closing Date, as the case may be, but any such payment shall not relieve such Underwriter from its obligations hereunder.
(d) Certificates for the Initial Securities and the Option Securities, if any, shall be in such denominations and registered in such names as the Representatives may request in writing at least one full business day before the Closing Date or the relevant Option Closing Date, as the case may be. The certificates for the Initial Securities and the Option Securities, if any, will be made available for examination and packaging by the Representatives in The City of New York not later than 10:00 A.M. noon (New York time) on the last business day prior to the Closing Time Date or the relevant Date of DeliveryOption Closing Date, as the case may be, in New York, New York. If authorized by the applicable Terms Agreement, the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company or the Operating Partnership, as the case may be, pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially in the form of Exhibit B hereto with such changes therein as the Company or the Operating Partnership, as the case may be, may approve. As compensation for arranging Delayed Delivery Contracts, the Company or the Operating Partnership, as the case may be, will pay to the Representatives at Closing Time, for the respective accounts of the Underwriters, a fee equal to that percentage of the amount of Underwritten Securities for which Delayed Delivery contracts are made at the applicable Closing Time as is specified in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors of the types described in the Prospectus. At the applicable Closing Time, the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts (for not less than the minimum amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by the Company or the Operating Partnership, as the case may be, as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts. The Representatives shall submit to the Company or the Operating Partnership, as the case may be, at least three business days prior to the applicable Closing Time, the names of any institutional investors with which it is proposed that the Company or the Operating Partnership, as the case may be, will enter into Delayed Delivery Contracts and the amount of Underwritten Securities to be purchased by each of them, and the Company or the Operating Partnership, as the case may be, will advise the Representatives at least two business days prior to the applicable Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company or the Operating Partnership, as the case may be, and the amount of Underwritten Securities to be covered by each such Delayed Delivery Contract. The amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by the Representatives to the Company or the Operating Partnership, as the case may be; provided, however, that the total amount of Underwritten Securities to be purchased by all Underwriters shall be the total amount of Underwritten Securities covered by the applicable Terms Agreement, less the amount of Underwritten Securities covered by Delayed Delivery Contracts.
Appears in 1 contract
