Issuances and Forwards Sample Clauses

Issuances and Forwards. (i) Upon the terms and subject to the conditions of this Agreement, the Company may issue Issuance Shares through a Sales Agent, and such Sales Agent shall use commercially reasonable efforts consistent with its normal trading and sales practices to sell Issuance Shares, with an aggregate Sales Price of up to the Maximum Amount, less the aggregate Sales Price for any Forward Hedge Shares previously sold under this Agreement, based on and in accordance with such number of Transaction Notices, each specifying that it relates to an “Issuance,” as the Company in its sole discretion shall choose to deliver during the Commitment Period until the aggregate Sales Price of the Issuance Shares sold under this Agreement, plus the aggregate Sales Prices for any Forward Hedge Shares previously sold under this Agreement, equals the Maximum Amount, or this Agreement is otherwise terminated. Subject to the foregoing and the other terms and conditions of this Agreement, upon (1) the delivery of a Transaction Notice specifying that it relates to an “Issuance,” and (2) such Sales Agent’s acceptance of the terms of such Transaction Notice, and unless the sale of the Issuance Shares described therein has been suspended, cancelled or otherwise terminated in accordance with the terms of this Agreement, such Sales Agent will use commercially reasonable efforts consistent with its normal trading and sales practices to sell such Issuance Shares up to the amount specified on the NYSE, and otherwise in accordance with the terms of such Transaction Notice. Such Sales Agent will use commercially reasonable efforts consistent with its normal trading and sales practices to provide written confirmation to the Company not later than 6:00 p.m. Eastern Time on the Issuance Date, and will in no event provide such confirmation later than the opening of the Trading Day next following the Trading Day on which it has made sales of Issuance Shares hereunder. Such written confirmation will set forth under the Actual Sold Issuance Amount for such Trading Day, the corresponding Sales Price and the Issuance Price payable to the Company in respect thereof. Each of the Company and the Operating Company acknowledges and agrees that (i) there can be no assurance that the such Sales Agent will be successful in selling Issuance Shares, and (ii) such Sales Agent will incur no liability or obligation to the Company, the Operating Company or any other person if it does not sell Issuance Shares for any reason other than a failure by such Sales Agent to use commercially reasonable efforts consistent with its normal trading and sales practices to sell such Issuance Shares as required under this Section 3. (ii) In addition, upon the terms and subject to the conditions of this Agreement and the related Master Forward Confirmation, a Forward Purchaser (or its affiliate) may borrow, offer and sell Forward Hedge Shares through a Forward Seller to hedge each Forward, and such Forward Seller shall use commercially reasonable efforts consistent with its normal trading and sales practices to sell Forward Hedge Shares with an aggregate Sales Price of up to the Maximum Amount, less the aggregate Sales Price for any Issuance Shares previously sold under this Agreement, based on and in accordance with such number of Transaction Notices, each specifying that it relates to a “Forward,” as the Company in its sole discretion shall choose to deliver during the Commitment Period and to which such Forward Purchaser and such Forward Seller have agreed, until the aggregate Sales Price of the Forward Hedge Shares sold under this Agreement, plus the aggregate Sales Prices for any Issuance Shares previously sold under this Agreement, equals the Maximum Amount or this Agreement is otherwise terminated. Subject to the foregoing and the other terms and conditions of this Agreement and the related Master Forward Confirmation, upon (1) the delivery of a Transaction Notice specifying that it relates to a “Forward,” and (2) such Forward Purchaser’s and such Forward Seller’s acceptance of the terms of such Transaction Notice, and unless the sale of the Forward Hedge Shares described therein has been suspended or otherwise terminated in accordance with the terms of this Agreement or the related Master Forward Confirmation, such Forward Seller will use commercially reasonable efforts consistent with its normal trading and sales practices to sell the Forward Hedge Shares on the NYSE, and otherwise in accordance with the terms of such Transaction Notice. (iii) The applicable Forward Seller will provide written confirmation to the Company and the related Forward Purchaser no later than the opening of the Trading Day next following each Trading Day on which it has made sales of Forward Hedge Shares hereunder setting forth the number of Forward Hedge Shares sold on such Trading Day, the corresponding Sales Price and the Forward Hedge Price payable to the related Forward Purchaser in respect thereof. Each of the Company and the Operating Company acknowledges and agrees that: (A) there can be no assurance that such Forward Purchaser (or its affiliate) will be successful in borrowing or that such Forward Seller will be successful in selling Forward Hedge Shares; (B) such Forward Seller will incur no liability or obligation to the Company, the Operating Company, the Forward Purchaser, or any other person if it does not sell Forward Hedge Shares borrowed by such Forward Purchaser (or its affiliate) for any reason other than a failure by such Forward Seller to use commercially reasonable efforts consistent with its normal trading and sales practices to sell such Forward Hedge Shares as required under this Section 3 and (C) such Forward Purchaser is not incurring any liability or obligation to the Company, the Operating Company or any other person under this Agreement. In acting hereunder, such Forward Seller will be acting as agent for such Forward Purchaser and not as principal. (iv) No later than the opening of the Trading Day next following the last Trading Day of each Forward Hedge Selling Period (or, if earlier, the date on which any Forward Hedge Selling Period is suspended or terminated pursuant to Section 3(h)), the applicable Forward Purchaser shall deliver to the Company a Supplemental Confirmation in respect of the Forward for such Forward Hedge Selling Period, which shall set forth the “Trade Date” for such Forward (which shall, subject to the terms of the related Master Forward Confirmation, be the last Trading Day of such Forward Hedge Selling Period), the “Effective Date” for such Forward (which shall, subject to the terms of the related Master Forward Confirmation, be the date one Settlement Cycle (as such term is defined in the related Master Forward Confirmation) immediately following the last Trading Day of such Forward Hedge Selling Period), the initial “Number of Shares” for such Forward (which shall be the Actual Sold Forward Amount for such Forward Hedge Selling Period), the “Maturity Date” for such Forward (which shall, subject to the terms of the related Master Forward Confirmation, be the date that follows the last Trading Day of such Forward Hedge Selling Period by the number of days or months set forth opposite the caption “Term” in the Transaction Notice for such Forward), the “Initial Forward Price” for such Forward, the “Spread” for such Forward, the “Volume-Weighted Hedge Price” for such Forward, the “Threshold Price” for such Forward, the “Initial Stock Loan Rate” for such Forward, the Maximum Stock Loan Rate for such Forward, the “Forward Price Reduction Dates” for such Forward (which shall be each of the dates set forth below the caption “Forward Price Reduction Dates” in the Transaction Notice for such Forward) and the “Forward Price Reduction Amounts” corresponding to such Forward Price Reduction Dates (which shall be each amount set forth opposite each “Forward Price Reduction Date” and below the caption “Forward Price Reduction Amounts” in the Transaction Notice for such Forward) and the “Regular Dividend Amounts” for such Forward (which shall be each of the amount(s) set forth below the caption “Regular Dividend Amounts” in the Transaction Notice for such Forward). (v) Notwithstanding anything herein to the contrary, the applicable Forward Seller’s obligation to use commercially reasonable efforts consistent with its normal trading and sales practices to sell such portion of the Forward Hedge Shares for any Forward hereunder shall be subject in all respects to the related Master Forward Confirmation. (vi) The Shares may be offered and sold by any method permitted by law, including by means of ordinary brokers’ transactions on the NYSE at the market prices, in block transactions, or as otherwise agreed to among the relevant parties, or by means of any other existing trading market for the Common Stock or to or through a market marker other than on an exchange. (vii) Upon the terms and subject to the conditions set forth herein, on any Trading Day as provided in Section 3(c)(ii) during the Commitment Period on which (A) the conditions set forth in paragraphs (a) and (b) of Section 6 have been satisfied and (B) no event described in clause (a) or clause (b) of the proviso contained in the definition of Forward Hedge Selling Period shall have occurred, the Company may exercise an Issuance by the delivery of a Transaction Notice specifying that it relates to an “Issuance,” executed by the Chief Executive Officer, the Chief Financial Officer, the Treasurer, the President, the Corporate Secretary or any Vice President (or such other authorized officers) of the Company or the Operating Company as may be acceptable to the applicable Sales Agent), to such Sales Agent. The number of Issuance Shares that a Sales Agent shall use commercially reasonable efforts consistent with its normal trading and sales practices to sell pursuant to such Issuance shall have an aggregate Sales Price equal to the Issuance Amount. Each Issuance will be settled on the applicable Settlement Date following the Issuance Date. (viii) Upon the terms and subject to the conditions set forth herein, on any Trading Day as provided in Section 3(c)(ii) during the Commitment Period on which the conditions set forth in paragraphs (a) and (b) of Section 6 have been satisfied and provided that the Company shall have executed a Master Forward Confirmation with the applicable Forward Purchaser, the Company may exercise its right to call for a Forward by the delivery of a Transaction Notice specifying that it relates to a “Forward,” executed by the Chief Executive Officer, the Chief Financial Officer, the Treasurer, the President, the Corporate Secretary or any Vice President (or such other authorized officers) of the Company or the Operating Company as may be acceptable to the applicable Forward Seller and the related Forward Purchaser), to such Forward Seller and such Forward Purchaser. The number of Forward Hedge Shares that such Forward Seller shall use commercially reasonable efforts consistent with its normal trading and sales practices to sell pursuant to such Forward shall have an aggregate Sales Price equal to the Forward Hedge Amount. Each sale of Forward Hedge Shares will be settled as between such Forward Seller and such Forward Purchaser on each applicable Forward Hedge Settlement Date following the relevant Forward Date. (b) The effectiveness of this Agreement (the “Closing”) shall be deemed to take place concurrently with the execution and delivery of this Agreement by the parties hereto and the completion of the closing transactions set forth in the immediately following sentence. At the Closing, the following closing transactions shall take place, each of which shall be deemed to occur simultaneously with the Closing: (i) each of the Company and the Operating Company shall deliver to the Sales Agents, the Forward Sellers and the Forward Purchasers a certificate executed by any two of its following representatives: the Chief Executive Officer, the Chief Financial Officer, the Treasurer, the President, the Corporate Secretary or any Vice President (or such other authorized officers) of the Company or the Operating Company as may be acceptable to the Sales Agents, the Forward Sellers and the Forward Purchasers), signing in such capacity, dated the date of the Closing, certifying that attached thereto are true and complete copies of the resolutions duly adopted by the board of directors of the Company and the Operating Company, as applicable, authorizing the execution and delivery of this Agreement, each Forward Contract and the consummation of the transactions contemplated hereby and thereby, which authorization shall be in full force and effect on and as of the date of such certificate; (ii) each of the Company and the Operating Company shall deliver to the Sales Agents, the Forward Sellers and the Forward Purchasers a certificate executed by any two of its following representatives: the Chief Executive Officer, the Chief Financial Officer, the Treasurer, the President, the Corporate Secretary or any Vice President (or such other authorized officers) of the Company or the Operating Company as may be acceptable to the Sales Agents, the Forward Sellers and the Forward Purchasers), signing in such capacity, dated the date of the Closing, as to the matters set forth in Sections 6(a)(i) and 6(e); (iii) ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Company and the Operating Company (“Company Counsel”), or other counsel satisfactory to the Sales Agents, the Forward Sellers and the Forward Purchasers, shall deliver to the Sales Agents, the Forward Sellers and the Forward Purchasers a written opinion, dated the date of the Closing, and addressed to the Sales Agents, the Forward Sellers and the Forward Purchasers, in form and substance satisfactory to the Sales Agents, the Forward Sellers and the Forward Purchasers, of the same tenor as the opinions referred to in Section 6(c); (iv) ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsel to the Sales Agents, the Forward Sellers and the Forward Purchasers, shall deliver to the Sales Agents, the Forward Sellers and the Forward Purchasers a written opinion, dated the date of the Closing, and addressed to the Sales Agents, the Forward Sellers and the Forward Purchasers, in form and substance satisfactory to the Sales Agents, the Forward Sellers and the Forward Purchasers; (v) ▇▇▇▇▇ & ▇▇▇▇▇ shall deliver to the Sales Agents and the Forward Sellers a letter, dated the Closing Date, in form and substance satisfactory to the Sales Agents and the Forward Sellers; and (vi) the Company and the Operating Company, jointly and severally, without duplication, shall pay the expenses set forth in Sections 5(d), (e) and (i) by wire transfer to the account designated by the applicable Sales Agent in writing prior to the Closing. (i) On any Trading Day during the Commitment Period, the Company may deliver a Transaction Notice to a Sales Agent (in the case of an Issuance) or a Forward Seller and a Forward Purchaser (in the case of a Forward), subject to the satisfaction of the conditions set forth in Section 6; provided, however, that (1) the Issuance Amount or Forward Hedge Amount, as the case may be, for each Transaction as designated by the Company in the applicable Transaction Notice shall in no event exceed $100,000,000 for any Issuance or Forward, as the case may be, without the prior written consent of such Agent or such Forward Seller, as applicable, which may be withheld in such Sales Agent’s or such Forward Seller’s sole discretion and (2) notwithstanding anything in this Agreement or the related Master Forward Confirmation to the contrary, none of such Forward Purchaser, such Sales Agent or such Forward Seller shall have any further obligations with respect to any Transaction Notice if and to the extent the aggregate Sales Price of the Shares sold pursuant thereto, together with the aggregate Sales Price of the Shares previously sold under this Agreement, shall exceed the Maximum Amount. The Company shall have the right, in its sole discretion, to amend at any time and from time to time any Transaction Notice subject to compliance with the limitations set forth in this Agreement; provided, however, that (i) the Company may not amend the Issuance Amount or Forward He

Appears in 2 contracts

Sources: Equity Distribution Agreement (Welltower Inc.), Equity Distribution Agreement (Welltower Inc.)

Issuances and Forwards. (a) (i) Upon the terms and subject to the conditions of this Agreement, the Company may issue Issuance Shares through a Sales Agent, and such Sales Agent shall use commercially reasonable efforts consistent with its normal trading and sales practices to sell Issuance Shares, with an aggregate Sales Price of up to the Maximum Amount, less the aggregate Sales Price for any Forward Hedge Shares previously sold under this Agreement, based on and in accordance with such number of Transaction Notices, each specifying that it relates to an “Issuance,” as the Company in its sole discretion shall choose to deliver during the Commitment Period until the aggregate Sales Price of the Issuance Shares sold under this Agreement, plus the aggregate Sales Prices for any Forward Hedge Shares previously sold under this Agreement, equals the Maximum Amount, or this Agreement is otherwise terminated. Subject to the foregoing and the other terms and conditions of this Agreement, upon (1) the delivery of a Transaction Notice specifying that it relates to an “Issuance,” and (2) such Sales Agent’s acceptance of the terms of such Transaction Notice, and unless the sale of the Issuance Shares described therein has been suspended, cancelled or otherwise terminated in accordance with the terms of this Agreement, such Sales Agent will use commercially reasonable efforts consistent with its normal trading and sales practices to sell such Issuance Shares up to the amount specified on the NYSE, and otherwise in accordance with the terms of such Transaction Notice. Such Sales Agent will use commercially reasonable efforts consistent with its normal trading and sales practices to provide written confirmation to the Company not later than 6:00 p.m. Eastern Time on the Issuance Date, and will in no event provide such confirmation later than the opening of the Trading Day next following the Trading Day on which it has made sales of Issuance Shares hereunder. Such written confirmation will set forth under the Actual Sold Issuance Amount for such Trading Day, the corresponding Sales Price and the Issuance Price payable to the Company in respect thereof. Each of the Company and the Operating Company acknowledges and agrees that (i) there can be no assurance that the such Sales Agent will be successful in selling Issuance Shares, and (ii) such Sales Agent will incur no liability or obligation to the Company, the Operating Company or any other person if it does not sell Issuance Shares for any reason other than a failure by such Sales Agent to use commercially reasonable efforts consistent with its normal trading and sales practices to sell such Issuance Shares as required under this Section 3. (ii) In addition, upon the terms and subject to the conditions of this Agreement and the related Master Forward Confirmation, a Forward Purchaser (or its affiliate) may borrow, offer and sell Forward Hedge Shares through a Forward Seller to hedge each Forward, and such Forward Seller shall use commercially reasonable efforts consistent with its normal trading and sales practices to sell Forward Hedge Shares with an aggregate Sales Price of up to the Maximum Amount, less the aggregate Sales Price for any Issuance Shares previously sold under this Agreement, based on and in accordance with such number of Transaction Notices, each specifying that it relates to a “Forward,” as the Company in its sole discretion shall choose to deliver during the Commitment Period and to which such Forward Purchaser and such Forward Seller have agreed, until the aggregate Sales Price of the Forward Hedge Shares sold under this Agreement, plus the aggregate Sales Prices for any Issuance Shares previously sold under this Agreement, equals the Maximum Amount or this Agreement is otherwise terminated. Subject to the foregoing and the other terms and conditions of this Agreement and the related Master Forward Confirmation, upon (1) the delivery of a Transaction Notice specifying that it relates to a “Forward,” and (2) such Forward Purchaser’s and such Forward Seller’s acceptance of the terms of such Transaction Notice, and unless the sale of the Forward Hedge Shares described therein has been suspended or otherwise terminated in accordance with the terms of this Agreement or the related Master Forward Confirmation, such Forward Seller will use commercially reasonable efforts consistent with its normal trading and sales practices to sell the Forward Hedge Shares on the NYSE, and otherwise in accordance with the terms of such Transaction Notice. (iii) The applicable Forward Seller will provide written confirmation to the Company and the related Forward Purchaser no later than the opening of the Trading Day next following each Trading Day on which it has made sales of Forward Hedge Shares hereunder setting forth the number of Forward Hedge Shares sold on such Trading Day, the corresponding Sales Price and the Forward Hedge Price payable to the related Forward Purchaser in respect thereof. Each of the Company and the Operating Company acknowledges and agrees that: (A) there can be no assurance that such Forward Purchaser (or its affiliate) will be successful in borrowing or that such Forward Seller will be successful in selling Forward Hedge Shares; (B) such Forward Seller will incur no liability or obligation to the Company, the Operating Company, the Forward Purchaser, or any other person if it does not sell Forward Hedge Shares borrowed by such Forward Purchaser (or its affiliate) for any reason other than a failure by such Forward Seller to use commercially reasonable efforts consistent with its normal trading and sales practices to sell such Forward Hedge Shares as required under this Section 3 and (C) such Forward Purchaser is not incurring any liability or obligation to the Company, the Operating Company or any other person under this Agreement. In acting hereunder, such Forward Seller will be acting as agent for such Forward Purchaser and not as principal. (iv) No later than the opening of the Trading Day next following the last Trading Day of each Forward Hedge Selling Period (or, if earlier, the date on which any Forward Hedge Selling Period is suspended or terminated pursuant to Section 3(h)), the applicable Forward Purchaser shall deliver to the Company a Supplemental Confirmation in respect of the Forward for such Forward Hedge Selling Period, which shall set forth the “Trade Date” for such Forward (which shall, subject to the terms of the related Master Forward Confirmation, be the last Trading Day of such Forward Hedge Selling Period), the “Effective Date” for such Forward (which shall, subject to the terms of the related Master Forward Confirmation, be the date one Settlement Cycle (as such term is defined in the related Master Forward Confirmation) immediately following the last Trading Day of such Forward Hedge Selling Period), the initial “Number of Shares” for such Forward (which shall be the Actual Sold Forward Amount for such Forward Hedge Selling Period), the “Maturity Date” for such Forward (which shall, subject to the terms of the related Master Forward Confirmation, be the date that follows the last Trading Day of such Forward Hedge Selling Period by the number of days or months set forth opposite the caption “Term” in the Transaction Notice for such Forward), the “Initial Forward Price” for such Forward, the “Spread” for such Forward, the “Volume-Weighted Hedge Price” for such Forward, the “Threshold Price” for such Forward, the “Initial Stock Loan Rate” for such Forward, the Maximum Stock Loan Rate for such Forward, the “Forward Price Reduction Dates” for such Forward (which shall be each of the dates set forth below the caption “Forward Price Reduction Dates” in the Transaction Notice for such Forward) and the “Forward Price Reduction Amounts” corresponding to such Forward Price Reduction Dates (which shall be each amount set forth opposite each “Forward Price Reduction Date” and below the caption “Forward Price Reduction Amounts” in the Transaction Notice for such Forward) and the “Regular Dividend Amounts” for such Forward (which shall be each of the amount(s) set forth below the caption “Regular Dividend Amounts” in the Transaction Notice for such Forward). (v) Notwithstanding anything herein to the contrary, the applicable Forward Seller’s obligation to use commercially reasonable efforts consistent with its normal trading and sales practices to sell such portion of the Forward Hedge Shares for any Forward hereunder shall be subject in all respects to the related Master Forward Confirmation. (vi) The Shares may be offered and sold by any method permitted by law, including by means of ordinary brokers’ transactions on the NYSE at the market prices, in block transactions, or as otherwise agreed to among the relevant parties, or by means of any other existing trading market for the Common Stock or to or through a market marker other than on an exchange. (vii) Upon the terms and subject to the conditions set forth herein, on any Trading Day as provided in Section 3(c)(ii) during the Commitment Period on which (A) the conditions set forth in paragraphs (a) and (b) of Section 6 have been satisfied and (B) no event described in clause (a) or clause (b) of the proviso contained in the definition of Forward Hedge Selling Period shall have occurred, the Company may exercise an Issuance by the delivery of a Transaction Notice specifying that it relates to an “Issuance,” executed by the Chief Executive Officer, the Chief Financial Officer, the Treasurer, the President, the Corporate Secretary or any Vice President (or such other authorized officers) of the Company or the Operating Company as may be acceptable to the applicable Sales Agent), to such Sales Agent. The number of Issuance Shares that a Sales Agent shall use commercially reasonable efforts consistent with its normal trading and sales practices to sell pursuant to such Issuance shall have an aggregate Sales Price equal to the Issuance Amount. Each Issuance will be settled on the applicable Settlement Date following the Issuance Date. (viii) Upon the terms and subject to the conditions set forth herein, on any Trading Day as provided in Section 3(c)(ii) during the Commitment Period on which the conditions set forth in paragraphs (a) and (b) of Section 6 have been satisfied and provided that the Company shall have executed a Master Forward Confirmation with the applicable Forward Purchaser, the Company may exercise its right to call for a Forward by the delivery of a Transaction Notice specifying that it relates to a “Forward,” executed by the Chief Executive Officer, the Chief Financial Officer, the Treasurer, the President, the Corporate Secretary or any Vice President (or such other authorized officers) of the Company or the Operating Company as may be acceptable to the applicable Forward Seller and the related Forward Purchaser), to such Forward Seller and such Forward Purchaser. The number of Forward Hedge Shares that such Forward Seller shall use commercially reasonable efforts consistent with its normal trading and sales practices to sell pursuant to such Forward shall have an aggregate Sales Price equal to the Forward Hedge Amount. Each sale of Forward Hedge Shares will be settled as between such Forward Seller and such Forward Purchaser on each applicable Forward Hedge Settlement Date following the relevant Forward Date. (b) The effectiveness of this Agreement (the “Closing”) shall be deemed to take place concurrently with the execution and delivery of this Agreement by the parties hereto and the completion of the closing transactions set forth in the immediately following sentence. At the Closing, the following closing transactions shall take place, each of which shall be deemed to occur simultaneously with the Closing: (i) each of the Company and the Operating Company shall deliver to the Sales Agents, the Forward Sellers and the Forward Purchasers a certificate executed by any two of its following representatives: the Chief Executive Officer, the Chief Financial Officer, the Treasurer, the President, the Corporate Secretary or any Vice President (or such other authorized officers) of the Company or the Operating Company as may be acceptable to the Sales Agents, the Forward Sellers and the Forward Purchasers), signing in such capacity, dated the date of the Closing, certifying that attached thereto are true and complete copies of the resolutions duly adopted by the board of directors of the Company and the Operating Company, as applicable, authorizing the execution and delivery of this Agreement, each Forward Contract and the consummation of the transactions contemplated hereby and thereby, which authorization shall be in full force and effect on and as of the date of such certificate; (ii) each of the Company and the Operating Company shall deliver to the Sales Agents, the Forward Sellers and the Forward Purchasers a certificate executed by any two of its following representatives: the Chief Executive Officer, the Chief Financial Officer, the Treasurer, the President, the Corporate Secretary or any Vice President (or such other authorized officers) of the Company or the Operating Company as may be acceptable to the Sales Agents, the Forward Sellers and the Forward Purchasers), signing in such capacity, dated the date of the Closing, as to the matters set forth in Sections 6(a)(i) and 6(e); (iii) ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Company and the Operating Company (“Company Counsel”), or other counsel satisfactory to the Sales Agents, the Forward Sellers and the Forward Purchasers, shall deliver to the Sales Agents, the Forward Sellers and the Forward Purchasers a written opinion, dated the date of the Closing, and addressed to the Sales Agents, the Forward Sellers and the Forward Purchasers, in form and substance satisfactory to the Sales Agents, the Forward Sellers and the Forward Purchasers, of the same tenor as the opinions referred to in Section 6(c); (iv) ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsel to the Sales Agents, the Forward Sellers and the Forward Purchasers, shall deliver to the Sales Agents, the Forward Sellers and the Forward Purchasers a written opinion, dated the date of the Closing, and addressed to the Sales Agents, the Forward Sellers and the Forward Purchasers, in form and substance satisfactory to the Sales Agents, the Forward Sellers and the Forward Purchasers; (v) ▇▇▇▇▇ & ▇▇▇▇▇ shall deliver to the Sales Agents and the Forward Sellers a letter, dated the Closing Date, in form and substance satisfactory to the Sales Agents and the Forward Sellers; and (vi) the Company and the Operating Company, jointly and severally, without duplication, shall pay the expenses set forth in Sections 5(d), (e) and (i) by wire transfer to the account designated by the applicable Sales Agent in writing prior to the Closing. (i) On any Trading Day during the Commitment Period, the Company may deliver a Transaction Notice to a Sales Agent (in the case of an Issuance) or a Forward Seller and a Forward Purchaser (in the case of a Forward), subject to the satisfaction of the conditions set forth in Section 6; provided, however, that (1) the Issuance Amount or Forward Hedge Amount, as the case may be, for each Transaction as designated by the Company in the applicable Transaction Notice shall in no event exceed $100,000,000 for any Issuance or Forward, as the case may be, without the prior written consent of such Agent or such Forward Seller, as applicable, which may be withheld in such Sales Agent’s or such Forward Seller’s sole discretion and (2) notwithstanding anything in this Agreement or the related Master Forward Confirmation to the contrary, none of such Forward Purchaser, such Sales Agent or such Forward Seller shall have any further obligations with respect to any Transaction Notice if and to the extent the aggregate Sales Price of the Shares sold pursuant thereto, together with the aggregate Sales Price of the Shares previously sold under this Agreement, shall exceed the Maximum Amount. The Company shall have the right, in its sole discretion, to amend at any time and from time to time any Transaction Notice subject to compliance with the limitations set forth in this Agreement; provided, however, that (i) the Company may not amend the Issuance Amount or Forward He

Appears in 1 contract

Sources: Equity Distribution Agreement (Welltower Inc.)

Issuances and Forwards. (a) (i) Upon the terms and subject to the conditions of this Agreement, the Company may issue Issuance Shares through a Sales Agent, and ~~such~~ Sales Agent shall use commercially reasonable efforts consistent with its normal trading and sales practices to sell Issuance Shares, with an aggregate Sales Price of up to the Maximum Amount, less the aggregate Sales Price for any Forward Hedge Shares previously sold under ~~this Agreement~~the Distribution Agreements, based on and in accordance with such number of Transaction Notices, each specifying that it relates to an “Issuance,” as the Company in its sole discretion shall choose to deliver during the Commitment Period until the aggregate Sales Price of the Issuance Shares sold under ~~this Agreement~~the Distribution Agreements, plus the aggregate Sales Prices for any Forward Hedge Shares previously sold under ~~this Agreement~~the Distribution Agreements, equals the Maximum Amount, or this Agreement is otherwise terminated. Subject to the foregoing and the other terms and conditions of this Agreement, upon (1) the delivery of a Transaction Notice specifying that it relates to an “Issuance,” and (2) ~~such~~ Sales Agent’s acceptance of the terms of such Transaction Notice, and unless the sale of the Issuance Shares described therein has been suspended, cancelled or otherwise terminated in accordance with the terms of this Agreement, ~~such~~ Sales Agent will use commercially reasonable efforts consistent with its normal trading and sales practices to sell such Issuance Shares up to the amount specified on into the NYSE, and otherwise in accordance with the terms of such Transaction Notice. ~~Such~~ Sales Agent will use commercially reasonable efforts consistent with its normal trading and sales practices to provide written confirmation to the Company not later than 6:00 p.m. Eastern Time on the Issuance Date, and will in no event provide such confirmation later than the opening of the Trading Day next following the Trading Day on which it has made sales of Issuance Shares hereunder. Such written confirmation will set forth ~~under~~ the portion of the Actual Sold Issuance Amount for such Trading Day, the corresponding Sales Price and the Issuance Price payable to the Company in respect thereof. ~~Each of the Company and the Operating~~ The Company acknowledges and agrees that (i) there can be no assurance that ~~the such~~ Sales Agent will be successful in selling Issuance Shares, and (ii) ~~such~~ Sales Agent will incur no liability or obligation to the ~~Company, the Operating~~ Company or any other person if it does not sell Issuance Shares for any reason other than a failure by ~~such~~ Sales Agent to use commercially reasonable efforts consistent with its normal trading and sales practices to sell such Issuance Shares as required under this Section 3. (ii) In addition, upon the terms and subject to the conditions of this Agreement and the ~~related~~ Master Forward Confirmation, a the Forward Purchaser ~~(or its affiliate)~~ may borrow, offer and sell Forward Hedge Shares through a the Forward Seller to hedge each Forward, and ~~such~~ the Forward Seller shall use commercially reasonable efforts consistent with its normal trading and sales practices to sell Forward Hedge Shares with an aggregate Sales Price of up to the Maximum Amount, less the aggregate Sales Price for any Issuance Shares previously sold under ~~this Agreement~~the Distribution Agreements, based on and in accordance with such number of Transaction Notices, each specifying that it relates to a “Forward,” as the Company in its sole discretion shall choose to deliver during the Commitment Period ~~and to which such Forward Purchaser and such Forward Seller have agreed,~~ until the aggregate Sales Price of the Forward Hedge Shares sold under ~~this Agreement~~the Distribution Agreements, plus the aggregate Sales Prices for any Issuance Shares previously sold under ~~this Agreement~~the Distribution Agreements, equals the Maximum Amount or this Agreement is otherwise terminated. Subject to the foregoing and the other terms and conditions of this Agreement and the ~~related~~ Master Forward Confirmation, upon (1) the delivery of a Transaction Notice specifying that it relates to a “Forward,” and (2) ~~such~~ Forward ~~Purchaser’s~~ Purchaser and ~~such~~ Forward Seller’s acceptance of the terms of such Transaction Notice, and unless the sale of the Forward Hedge Shares described therein has been suspended or otherwise terminated in accordance with the terms of this Agreement or the ~~related~~ Master Forward ~~Confirmation~~Confirmation (including without limitation as a result of any event described in clause (a) or (b) of the proviso contained in the definition of Forward Hedge Selling Period), ~~such~~ the Forward Purchaser will use commercially reasonable efforts consistent with its normal trading and sales practices to borrow Forward Hedge Shares up to the amount specified and the Forward Seller will use commercially reasonable efforts consistent with its normal trading and sales practices to sell ~~the~~ such Forward Hedge Shares on into the NYSE, and otherwise in accordance with the terms of such Transaction Notice. (iii) The ~~applicable~~ Forward Seller will provide written confirmation to the Company and the ~~related~~ Forward Purchaser no later than the opening of the Trading Day next following each Trading Day on which it has made sales of Forward Hedge Shares hereunder setting forth the number of Forward Hedge Shares sold on such Trading Day, the corresponding Sales Price and the Forward Hedge Price payable to the ~~related~~ Forward Purchaser in respect thereof. Each of the Company and the ~~Operating Company~~ Forward Purchaser acknowledges and agrees that: (A) there can be no assurance that ~~such~~ the Forward Purchaser ~~(or its affiliate)~~ will be successful in borrowing or that ~~such~~ the Forward Seller will be successful in selling Forward Hedge Shares; (B) ~~such~~ the Forward Seller will incur no liability or obligation to the Company, the ~~Operating Company, the~~ Forward ~~Purchaser~~Purchasers, or any other person if it does not sell Forward Hedge Shares borrowed by ~~such~~ the Forward Purchaser ~~(or its affiliate)~~ for any reason other than a failure by ~~such~~ the Forward Seller to use commercially reasonable efforts consistent with its normal trading and sales practices to sell such Forward Hedge Shares as required under this Section 3 and (C) ~~such~~ the Forward Purchaser ~~is not incurring any~~ will incur no liability or obligation to the Company, the ~~Operating Company~~ Forward Seller, or any other person if it does not borrow Forward Hedge Shares for any reason other than a failure by the Forward Purchaser to use commercially reasonable efforts consistent with its normal trading and sales practices to borrow such Forward Hedge Shares as required under this ~~Agreement~~Section 3. In acting hereunder, ~~such~~ the Forward Seller will be acting as agent for ~~such~~ the Forward Purchaser and not as principal. (iv) No later than the opening of the Trading Day next following the last Trading Day of each Forward Hedge Selling Period (or, if earlier, the date on which any Forward Hedge Selling Period is suspended or terminated pursuant to Section 3(h)), the ~~applicable~~ Forward Purchaser shall execute and deliver to the Company a “Supplemental ~~Confirmation~~ Confirmation” in respect of the Forward for such Forward Hedge Selling Period, which “Supplemental Confirmation” shall set forth the “Trade Date” for such Forward (which shall, subject to the terms of the ~~related~~ Master Forward Confirmation, be the last Trading Day of such Forward Hedge Selling Period), the “Effective Date” for such Forward (which shall, subject to the terms of the ~~related~~ Master Forward Confirmation, be the date one “Settlement ~~Cycle~~ Cycle” (as such term is defined in the ~~related~~ Master Forward Confirmation) immediately following the last Trading Day of such Forward Hedge Selling Period), the initial “Number of Shares” for such Forward (which shall be the Actual Sold Forward Amount for such Forward Hedge Selling Period), the “Maturity Date” for such Forward (which shall, subject to the terms of the ~~related~~ Master Forward Confirmation, be the date that follows the last Trading Day of such Forward Hedge Selling Period by the number of days or months set forth opposite the caption “Term” in the Transaction Notice for such Forward, which number of days or months shall in no event be less than three months nor more than two years), the “Initial Forward Price” for such Forward, the “Spread” for such Forward, the “Volume-Weighted Hedge Price” for such Forward, the “Threshold Price” for such Forward, the “Initial Stock Loan Rate” for such Forward, the “Maximum Stock Loan ~~Rate~~ Rate” for such Forward, the “Forward Price Reduction Dates” for such Forward (which shall be each of the dates set forth below the caption “Forward Price Reduction Dates” in the Transaction Notice for such Forward) and the “Forward Price Reduction Amounts” corresponding to such Forward Price Reduction Dates (which shall be each amount set forth opposite each “Forward Price Reduction Date” and below the caption “Forward Price Reduction Amounts” in the Transaction Notice for such Forward) and the “Regular Dividend Amounts” for such Forward (which shall be each of the amount(s) set forth below the caption “Regular Dividend Amounts” in the Transaction Notice for such Forward). (v) Notwithstanding anything herein to the contrary, the ~~applicable~~ Forward Purchaser’s obligation to use commercially reasonable efforts to borrow all or any portion of the Forward Hedge Shares (and the Forward Seller’s obligation to use commercially reasonable efforts consistent with its normal trading and sales practices to sell such portion of the Forward Hedge ~~Shares~~ Shares) for any Forward hereunder shall be subject in all respects to the ~~related~~ Master Forward Confirmation. (vi) The Shares may be offered and sold by any method permitted by law, including by means of ordinary brokers’ transactions on the NYSE at the market prices, in block transactions, or as otherwise agreed ~~to among~~ with the ~~relevant parties~~applicable sales agent, or by means of any other existing trading market for ~~the Common Stock~~ our common stock or to or through a market marker other than on an exchange. (vii) Upon the terms and subject to the conditions set forth herein, on any Trading Day as provided in Section ~~3(c)(ii~~(c)(ii) hereof during the Commitment Period on which (A) the conditions set forth in paragraphs (a) and (b) of Section 6 have been satisfied and (B) no event described in clause (a) or clause (b) of the proviso contained in the definition of Forward Hedge Selling Period shall have occurred, the Company may exercise an Issuance by the delivery of a Transaction Notice specifying that it relates to an “Issuance,” executed by the Chief Executive Officer, the Chief Financial Officer, the Treasurer, the ~~President, the Corporate~~ Secretary or any Vice President of the Company (or such other authorized ~~officers)~~ officers of the ~~Company or the Operating~~ Company as may be acceptable to the ~~applicable~~ Sales ~~Agent~~Agent and the Forward Seller), to ~~such~~ Sales Agent. The number of Issuance Shares that a Sales Agent shall use commercially reasonable efforts consistent with its normal trading and sales practices to sell pursuant to such Issuance shall have an aggregate Sales Price equal to the Issuance Amount. Each Issuance will be settled on the applicable Settlement Date following the Issuance Date. (viii) Upon the terms and subject to the conditions set forth herein, on any Trading Day as provided in Section ~~3(c)(ii~~(c)(ii) during the Commitment Period on which the conditions set forth in paragraphs (a) and (b) of Section 6 have been ~~satisfied and provided that the Company shall have executed a Master Forward Confirmation with the applicable Forward Purchaser~~satisfied, the Company may exercise its right to call for a Forward by the delivery of a Transaction Notice specifying that it relates to a “Forward,” executed by the Chief Executive Officer, the Chief Financial Officer, the Treasurer, the ~~President, the Corporate~~ Secretary or any Vice President of the Company (or such other authorized ~~officers)~~ officers of the ~~Company or the Operating~~ Company as may be acceptable to the ~~applicable~~ Sales Agent and the Forward Seller), to the Forward Seller and the ~~related Forward Purchaser), to such Forward Seller and such~~ Forward Purchaser. The number of Forward Hedge Shares that ~~such~~ the Forward Purchaser shall use commercially reasonable efforts consistent with its normal trading and sales practices to borrow and that the Forward Seller shall use commercially reasonable efforts consistent with its normal trading and sales practices to sell pursuant to such Forward shall have an aggregate Sales Price equal to the Forward Hedge Amount. Each sale of Forward Hedge Shares will be settled as between ~~such~~ the Forward Seller and ~~such~~ the Forward Purchaser on each applicable Forward Hedge Settlement Date following the relevant Forward Date. (b) The effectiveness of this Agreement (the “Closing”) shall be deemed to take place concurrently with the execution and delivery of this Agreement by the parties hereto and the completion of the closing transactions set forth in the immediately following sentence. At the Closing, the following closing transactions shall take place, each of which shall be deemed to occur simultaneously with the Closing: (i) each of the Company and the Operating Company shall deliver to the Sales Agents, the Forward Sellers and the Forward Purchasers a certificate executed by any two of its following representatives: the Chief Executive Officer, the Chief Financial Officer, the Treasurer, the President, the Corporate Secretary or any Vice President (or such other authorized officers) of the Company or the Operating Company as may be acceptable to the Sales Agents, the Forward Sellers and the Forward Purchasers), signing in such capacity, dated the date of the Closing, certifying that attached thereto are true and complete copies of the resolutions duly adopted by the board of directors of the Company and the Operating Company, as applicable, authorizing the execution and delivery of this Agreement, each Forward Contract and the consummation of the transactions contemplated hereby and thereby, which authorization shall be in full force and effect on and as of the date of such certificate; (ii) each of the Company and the Operating Company shall deliver to the Sales Agents, the Forward Sellers and the Forward Purchasers a certificate executed by any two of its following representatives: the Chief Executive Officer, the Chief Financial Officer, the Treasurer, the President, the Corporate Secretary or any Vice President (or such other authorized officers) of the Company or the Operating Company as may be acceptable to the Sales Agents, the Forward Sellers and the Forward Purchasers), signing in such capacity, dated the date of the Closing, as to the matters set forth in Sections 6(a)(i) and 6(e); (iii) ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Company and the Operating Company (“Company Counsel”), or other counsel satisfactory to the Sales Agents, the Forward Sellers and the Forward Purchasers, shall deliver to the Sales Agents, the Forward Sellers and the Forward Purchasers a written opinion, dated the date of the Closing, and addressed to the Sales Agents, the Forward Sellers and the Forward Purchasers, in form and substance satisfactory to the Sales Agents, the Forward Sellers and the Forward Purchasers, of the same tenor as the opinions referred to in Section 6(c); (iv) ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsel to the Sales Agents, the Forward Sellers and the Forward Purchasers, shall deliver to the Sales Agents, the Forward Sellers and the Forward Purchasers a written opinion, dated the date of the Closing, and addressed to the Sales Agents, the Forward Sellers and the Forward Purchasers, in form and substance satisfactory to the Sales Agents, the Forward Sellers and the Forward Purchasers; (v) ▇▇▇▇▇ & ▇▇▇▇▇ shall deliver to the Sales Agents and the Forward Sellers a letter, dated the Closing Date, in form and substance satisfactory to the Sales Agents and the Forward Sellers; and (vi) the Company and the Operating Company, jointly and severally, without duplication, shall pay the expenses set forth in Sections 5(d), (e) and (i) by wire transfer to the account designated by the applicable Sales Agent in writing prior to the Closing. (i) On any Trading Day during the Commitment Period, the Company may deliver a Transaction Notice to a Sales Agent (in the case of an Issuance) or a Forward Seller and a Forward Purchaser (in the case of a Forward), subject to the satisfaction of the conditions set forth in Section 6; provided, however, that (1) the Issuance Amount or Forward Hedge Amount, as the case may be, for each Transaction as designated by the Company in the applicable Transaction Notice shall in no event exceed $100,000,000 for any Issuance or Forward, as the case may be, without the prior written consent of such Agent or such Forward Seller, as applicable, which may be withheld in such Sales Agent’s or such Forward Seller’s sole discretion and (2) notwithstanding anything in this Agreement or the related Master Forward Confirmation to the contrary, none of such Forward Purchaser, such Sales Agent or such Forward Seller shall have any further obligations with respect to any Transaction Notice if and to the extent the aggregate Sales Price of the Shares sold pursuant thereto, together with the aggregate Sales Price of the Shares previously sold under this Agreement, shall exceed the Maximum Amount. The Company shall have the right, in its sole discretion, to amend at any time and from time to time any Transaction Notice subject to compliance with the limitations set forth in this Agreement; provided, however, that (i) the Company may not amend the Issuance Amount or Forward He

Appears in 1 contract

Sources: Equity Distribution Agreement (Welltower Inc.)

Issuances and Forwards. (a) (i) Upon the terms and subject to the conditions of this Agreement, the Company may issue Issuance Shares through a Sales Agent, and ~~such~~ Sales Agent shall use commercially reasonable efforts ~~consistent with its normal trading and sales practices~~ to sell Issuance Shares, with an aggregate Sales Price of up to the Maximum Amount, less the aggregate Sales Price for any Forward Hedge Shares previously sold under ~~this Agreement~~the Distribution Agreements, based on and in accordance with such number of Transaction Notices, each specifying that it relates to an “Issuance,” as the Company in its sole discretion shall choose to deliver during the Commitment Period until the aggregate Sales Price of the Issuance Shares sold under ~~this Agreement~~the Distribution Agreements, plus the aggregate Sales Prices for any Forward Hedge Shares previously sold under ~~this Agreement~~the Distribution Agreements, equals the Maximum Amount, or this Agreement is otherwise terminated. Subject to the foregoing and the other terms and conditions of this Agreement, upon ~~(1)~~ the delivery of a Transaction Notice specifying that it relates to an “Issuance,” ~~and (2) such Sales Agent’s acceptance of the terms of such Transaction Notice,~~ and unless the sale of the Issuance Shares described therein has been suspended, cancelled or otherwise terminated in accordance with the terms of this Agreement, ~~such~~ Sales Agent will use commercially reasonable efforts consistent with its normal trading and sales practices to sell such Issuance Shares up to the amount specified on into the NYSE, and otherwise in accordance with the terms of such Transaction Notice. ~~Such~~ Sales Agent will use commercially reasonable efforts ~~consistent with its normal trading and sales practices~~ to provide written confirmation to the Company not later than 6:00 p.m. Eastern Time on the Issuance Date, and will in no event provide such confirmation later than the opening of the Trading Day next following the Trading Day on which it has made sales of Issuance Shares hereunder. Such written confirmation will set forth ~~under~~ the portion of the Actual Sold Issuance Amount for such Trading Day, the corresponding Sales Price and the Issuance Price payable to the Company in respect thereof. ~~Each of~~ Sales Agent may sell Issuance Shares in the ~~Company and the Operating~~ manner described in Section 3(a)(ii) herein. The Company acknowledges and agrees that (i) there can be no assurance that ~~the such~~ Sales Agent will be successful in selling Issuance Shares, ~~and~~ (ii) ~~such~~ Sales Agent will incur no liability or obligation to the ~~Company, the Operating~~ Company or any other person if it does not sell Issuance Shares for any reason other than a failure by ~~such~~ Sales Agent to use commercially reasonable efforts consistent with its normal trading and sales practices to sell such Issuance Shares as required under this Section 33 and (iii) the Sales Agent shall be under no obligation to purchase Issuance Shares on a principal basis pursuant to this Agreement. The amount of any commission, discount or other compensation to be paid by the Company to the Sales Agent, when the Sales Agent is acting as principal, in connection with the sale of the Issuance Shares shall be as separately agreed among the parties hereto at the time of any such sales. (ii) In addition, upon the terms and subject to the conditions of this Agreement and the ~~related~~ Master Forward Confirmation, a the Forward Purchaser ~~(or its affiliate)~~ may borrow, offer and sell Forward Hedge Shares through a the Forward Seller to hedge each Forward, and ~~such~~ the Forward Seller shall use commercially reasonable efforts ~~consistent with its normal trading and sales practices~~ to sell Forward Hedge Shares with an aggregate Sales Price of up to the Maximum Amount, less the aggregate Sales Price for any Issuance Shares previously sold under ~~this Agreement~~the Distribution Agreements, based on and in accordance with such number of Transaction Notices, each specifying that it relates to a “Forward,” as the Company in its sole discretion shall choose to deliver during the Commitment Period ~~and to which such Forward Purchaser and such Forward Seller have agreed,~~ until the aggregate Sales Price of the Forward Hedge Shares sold under ~~this Agreement~~the Distribution Agreements, plus the aggregate Sales Prices for any Issuance Shares previously sold under ~~this Agreement~~the Distribution Agreements, equals the Maximum Amount or this Agreement is otherwise terminated. Subject to the foregoing and the other terms and conditions of this Agreement and the ~~related~~ Master Forward Confirmation, upon ~~(1)~~ the delivery of a Transaction Notice specifying that it relates to a “Forward,” ~~and (2) such Forward Purchaser’s and such Forward Seller’s acceptance of the terms of such Transaction Notice,~~ and unless the sale of the Forward Hedge Shares described therein has been suspended or otherwise terminated in accordance with the terms of this Agreement or the ~~related~~ Master Forward ~~Confirmation~~Confirmation (including without limitation as a result of any event described in clause (a) or (b) of the proviso contained in the definition of Forward Hedge Selling Period), ~~such~~ the Forward Purchaser will use commercially reasonable efforts to borrow Forward Hedge Shares up to the amount specified and the Forward Seller will use commercially reasonable efforts consistent with its normal trading and sales practices to sell ~~the~~ such Forward Hedge Shares on into the NYSE, and otherwise in accordance with the terms of such Transaction Notice. (iii) The ~~applicable~~ Forward Seller will provide written confirmation to the Company and the ~~related~~ Forward Purchaser no later than the opening of the Trading Day next following each Trading Day on which it has made sales of Forward Hedge Shares hereunder setting forth the number of Forward Hedge Shares sold on such Trading Day, the corresponding Sales Price and the Forward Hedge Price payable to the ~~related~~ Forward Purchaser in respect thereof. Each of the Company and the ~~Operating Company~~ Forward Purchaser acknowledges and agrees that: (A) there can be no assurance that ~~such~~ the Forward Purchaser ~~(or its affiliate)~~ will be successful in borrowing or that ~~such~~ the Forward Seller will be successful in selling Forward Hedge Shares; (B) ~~such~~ the Forward Seller will incur no liability or obligation to the Company, the ~~Operating Company, the~~ Forward ~~Purchaser~~Purchasers, or any other person if it does not sell Forward Hedge Shares borrowed by ~~such~~ the Forward Purchaser ~~(or its affiliate)~~ for any reason other than a failure by ~~such~~ the Forward Seller to use commercially reasonable efforts consistent with its normal trading and sales practices to sell such Forward Hedge Shares as required under this Section 3 and (C) ~~such~~ the Forward Purchaser ~~is not incurring any~~ will incur no liability or obligation to the Company, the ~~Operating Company~~ Forward Seller, or any other person if it does not borrow Forward Hedge Shares for any reason other than a failure by the Forward Purchaser to use commercially reasonable efforts to borrow such Forward Hedge Shares as required under this ~~Agreement~~Section 3. In acting hereunder, ~~such~~ the Forward Seller will be acting as agent for ~~such~~ the Forward Purchaser and not as principal. (iv) No later than the opening of the Trading Day next following the last Trading Day of each Forward Hedge Selling Period (or, if earlier, the date on which any Forward Hedge Selling Period is suspended or terminated pursuant to Section 3(h)), the ~~applicable~~ Forward Purchaser shall execute and deliver to the Company a “Supplemental ~~Confirmation~~ Confirmation” in respect of the Forward for such Forward Hedge Selling Period, which “Supplemental Confirmation” shall set forth the “Trade Date” for such Forward (which shall, subject to the terms of the ~~related~~ Master Forward Confirmation, be the last Trading Day of such Forward Hedge Selling Period), the “Effective Date” for such Forward (which shall, subject to the terms of the ~~related~~ Master Forward Confirmation, be the date one Settlement Cycle (as such term is defined in the ~~related~~ Master Forward Confirmation) immediately following the last Trading Day of such Forward Hedge Selling Period), the initial “Number of Shares” for such Forward (which shall be the Actual Sold Forward Amount for such Forward Hedge Selling Period), the “Maturity Date” for such Forward (which shall, subject to the terms of the ~~related~~ Master Forward Confirmation, be the date that follows the last Trading Day of such Forward Hedge Selling Period by the number of days or months set forth opposite the caption “Term” in the Transaction Notice for such Forward, which number of days or months shall in no event be less than three months nor more than two years), the “Initial Forward Price” for such Forward, the “Spread” for such Forward, the “Volume-Weighted Hedge Price” for such Forward, the “Threshold Price” for such Forward, the “Initial Stock Loan Rate” for such Forward, the “Maximum Stock Loan ~~Rate~~ Rate” for such Forward, the “Forward Price Reduction Dates” for such Forward (which shall be each of the dates set forth below the caption “Forward Price Reduction Dates” in the Transaction Notice for such Forward) and the “Forward Price Reduction Amounts” corresponding to such Forward Price Reduction Dates (which shall be each amount set forth opposite each “Forward Price Reduction Date” and below the caption “Forward Price Reduction Amounts” in the Transaction Notice for such Forward) and the “Regular Dividend Amounts” for such Forward (which shall be each of the amount(s) set forth below the caption “Regular Dividend Amounts” in the Transaction Notice for such Forward). (v) Notwithstanding anything herein to the contrary, the ~~applicable~~ Forward Purchaser’s obligation to use commercially reasonable efforts to borrow all or any portion of the Forward Hedge Shares (and the Forward Seller’s obligation to use commercially reasonable efforts ~~consistent with its normal trading and sales practices~~ to sell such portion of the Forward Hedge ~~Shares~~ Shares) for any Forward hereunder shall be subject in all respects to the ~~related~~ last paragraph of Section 3 of the Master Forward Confirmation. (vi) The Shares may be offered and sold in (A) privately negotiated transactions (if and only if the parties hereto have so agreed in writing), or (B) by any other method or payment permitted by ~~law~~law deemed to be an “at the market” offering as defined in Rule 415 of the Securities Act, including ~~by means of ordinary brokers’ transactions~~ sales made directly on the NYSE ~~at the market prices, in block transactions,~~ or ~~as otherwise agreed to among the relevant parties, or by means of any other existing trading market for the Common Stock or~~ sales made to or through a market ~~marker other than on~~ maker or through an ~~exchange~~electronic communications network. Nothing in this Agreement shall be deemed to require any party to agree to the method of offer and sale specified in clause (A) above, and any party may withhold its consent thereto in such party’s sole discretion. (vii) Upon the terms and subject to the conditions set forth herein, on any Trading Day as provided in Section ~~3(c)(ii~~(c)(ii) hereof during the Commitment Period on which (A) the conditions set forth in paragraphs (a) and (b) of Section 6 have been satisfied and (B) no event described in clause (a) or clause (b) of the proviso contained in the definition of Forward Hedge Selling Period shall have occurred, the Company may exercise an Issuance by the delivery of a Transaction Notice specifying that it relates to an “Issuance,” executed by the Chief Executive Officer, the Chief Financial Officer, the Treasurer, the ~~President, the Corporate~~ Secretary or any Vice President of the Company (or such other authorized ~~officers)~~ officers of the ~~Company or the Operating~~ Company as may be acceptable to the ~~applicable~~ Sales ~~Agent~~Agent and the Forward Seller), to ~~such~~ Sales Agent. The number of Issuance Shares that a Sales Agent shall use commercially reasonable efforts ~~consistent with its normal trading and sales practices~~ to sell pursuant to such Issuance shall have an aggregate Sales Price equal to the Issuance Amount. Each Issuance will be settled on the applicable Settlement Date following the Issuance Date. (viii) Upon the terms and subject to the conditions set forth herein, on any Trading Day as provided in Section ~~3(c)(ii~~(c)(ii) during the Commitment Period on which the conditions set forth in paragraphs (a) and (b) of Section 6 have been ~~satisfied and provided that the Company shall have executed a Master Forward Confirmation with the applicable Forward Purchaser~~satisfied, the Company may exercise its right to call for a Forward by the delivery of a Transaction Notice specifying that it relates to a “Forward,” executed by the Chief Executive Officer, the Chief Financial Officer, the Treasurer, the ~~President, the Corporate~~ Secretary or any Vice President of the Company (or such other authorized ~~officers)~~ officers of the ~~Company or the Operating~~ Company as may be acceptable to the ~~applicable~~ Sales Agent and the Forward Seller), to the Forward Seller and the ~~related Forward Purchaser), to such Forward Seller and such~~ Forward Purchaser. The number of Forward Hedge Shares that ~~such~~ the Forward Purchaser shall use commercially reasonable efforts to borrow and that the Forward Seller shall use commercially reasonable efforts ~~consistent with its normal trading and sales practices~~ to sell pursuant to such Forward shall have an aggregate Sales Price equal to the Forward Hedge Amount. Each sale of Forward Hedge Shares will be settled as between ~~such~~ the Forward Seller and ~~such~~ the Forward Purchaser on each applicable Forward Hedge Settlement Date following the relevant Forward Date. (b) The effectiveness of this Agreement (the “Closing”) shall be deemed to take place concurrently with the execution and delivery of this Agreement by the parties hereto and the completion of the closing transactions set forth in the immediately following sentence. At the Closing, the following closing transactions shall take place, each of which shall be deemed to occur simultaneously with the Closing: (i) ~~each of~~ the ~~Company and the Operating~~ Company shall deliver to the Sales ~~Agents~~Agent, the Forward ~~Sellers~~ Seller and the Forward ~~Purchasers~~ Purchaser a certificate executed by any two of ~~its following representatives~~the following: the Chief Executive Officer, the Chief Financial Officer, the Treasurer, the ~~President, the Corporate~~ Secretary or any Vice President of the Company (or such other authorized ~~officers)~~ officers of the ~~Company or the Operating~~ Company as may be acceptable to the Sales ~~Agents~~Agent, the Forward ~~Sellers~~ Seller and the Forward ~~Purchasers~~Purchaser), signing in such capacity, dated the date of the ~~Closing,~~ Closing certifying that attached thereto are true and complete copies of the resolutions duly adopted by the ~~board~~ Board of ~~directors~~ Directors of the Company ~~and the Operating Company, as applicable,~~ authorizing the execution and delivery of this Agreement, ~~each~~ the Master Forward ~~Contract~~ Confirmation and the consummation of the transactions contemplated hereby and thereby, which authorization shall be in full force and effect on and as of the date of such ~~certificate~~certificate and; (ii) ~~each of~~ the ~~Company and the Operating~~ Company shall deliver to the Sales ~~Agents~~Agent, the Forward ~~Sellers~~ Seller and the Forward ~~Purchasers~~ Purchaser a certificate executed by any two of ~~its following representatives~~the following: the Chief Executive Officer, the Chief Financial Officer, the Treasurer, the ~~President, the Corporate~~ Secretary or any Vice President of the Company (or such other authorized ~~officers)~~ officers of the ~~Company or the Operating~~ Company as may be acceptable to the Sales ~~Agents~~Agent, the Forward ~~Sellers~~ Seller and the Forward ~~Purchasers~~Purchaser), signing in such capacity, dated the date of the Closing, confirming that the representations and warranties of the Company contained in this Agreement and the Master Forward Confirmation are true and correct and that the Company has performed all of its obligations hereunder to be performed on or prior to the Closing Date and as to the matters set forth in ~~Sections~~ Section 6(a)(i) ~~and 6(e)~~hereof; (iii) ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Company ~~and the Operating Company~~ (“Company Counsel”), or other counsel satisfactory to the Sales ~~Agents~~Agent, the Forward ~~Sellers~~ Seller and the Forward ~~Purchasers~~Purchaser, shall deliver to the Sales ~~Agents~~Agent, the Forward ~~Sellers~~ Seller and the Forward ~~Purchasers~~ Purchaser a written opinion, dated the date of the ~~Closing,~~ Closing and addressed to the Sales ~~Agents~~Agent, the Forward ~~Sellers~~ Seller and the Forward ~~Purchasers~~Purchaser, in form and substance satisfactory to the Sales ~~Agents~~Agent, the Forward ~~Sellers~~ Seller and the Forward ~~Purchasers~~Purchaser, of the same tenor as the opinions referred to in Section 6(c)) of this Agreement; (iv) ~~▇▇▇▇▇▇ ▇▇▇▇▇▇~~ Sidley Austin LLP, counsel to ~~the~~ Sales ~~Agents~~Agent, the Forward ~~Sellers~~ Seller and the Forward ~~Purchasers,~~ Purchaser shall deliver to the Sales ~~Agents~~Agent, the Forward ~~Sellers~~ Seller and the Forward ~~Purchasers~~ Purchaser a written opinion, dated the date of the ~~Closing,~~ Closing and addressed to the Sales ~~Agents~~Agent, the Forward ~~Sellers~~ Seller and the Forward ~~Purchasers~~Purchaser, in form and substance satisfactory to the Sales ~~Agents~~Agent, the Forward ~~Sellers~~ Seller and the Forward ~~Purchasers~~Purchaser; (v) ~~▇▇▇▇▇~~ Ernst & ~~▇▇▇▇▇~~ Young LLP shall deliver to the Sales ~~Agents~~ Agent, the Forward Seller and the Forward ~~Sellers~~ Purchaser a letter, dated the Closing Date, in form and substance satisfactory to the Sales ~~Agents~~ Agent, the Forward Seller and the Forward ~~Sellers~~Purchaser; and (vi) the Company ~~and the Operating Company, jointly and severally, without duplication,~~ shall pay the expenses set forth in ~~Sections~~ Section 5(d), (e) and (i) hereof by wire transfer to the account designated by ~~the applicable~~ Sales Agent in writing prior to the Closing. (i) On any Trading Day during the Commitment Period, the Company may deliver a Transaction Notice to a Sales Agent (in the case of an Issuance) or a the Forward Seller and a the Forward Purchaser (in the case of a Forward), subject to the satisfaction of the conditions set forth in Section 6; provided, however, that (1) the Issuance Amount or Forward Hedge Amount, as the case may be, for each Transaction as designated by the Company in the applicable Transaction Notice shall in no event exceed $100,000,000 for any Issuance or Forward, as the case may be, without the prior written consent of ~~such~~ Sales Agent or ~~such~~ the Forward Seller, as applicable, which may be withheld in ~~such~~ Sales Agent’s or ~~such~~ the Forward Seller’s sole discretion and (2) notwithstanding anything in this Agreement or the ~~related~~ Master Forward Confirmation to the contrary, none of ~~such~~ the Forward Purchaser, such Sales Agent or such Forward Seller shall have any further obligations with respect to any Transaction Notice if and to the extent the aggregate Sales Price of the Shares sold pursuant thereto, together with the aggregate Sales Price of the Shares previously sold under this Agreement, shall exceed the Maximum Amount. The Company shall have the right, in its sole discretion, to amend at any time and from time to time any Transaction Notice subject to compliance with the limitations set forth in this Agreement; provided, however, that (i) the Company may not amend the Issuance Amount or Forward HeS

Appears in 1 contract

Sources: Equity Distribution Agreement (Welltower Inc.)

Issuances and Forwards. (a) (i) Upon the terms and subject to the conditions of this Agreement, the Company may issue Issuance Shares through a Sales Agent, and such Sales Agent shall use commercially reasonable efforts consistent with its normal trading and sales practices to sell Issuance Shares, with an aggregate Sales Price of up to the Maximum Amount, less the aggregate Sales Price for any Forward Hedge Shares previously sold under this Agreement, based on and in accordance with such number of Transaction Notices, each specifying that it relates to an “Issuance,” as the Company in its sole discretion shall choose to deliver during the Commitment Period until the aggregate Sales Price of the Issuance Shares sold under this Agreement, plus the aggregate Sales Prices for any Forward Hedge Shares previously sold under this Agreement, equals the Maximum Amount, or this Agreement is otherwise terminated. Subject to the foregoing and the other terms and conditions of this Agreement, upon (1) the delivery of a Transaction Notice specifying that it relates to an “Issuance,” and (2) such Sales Agent’s acceptance of the terms of such Transaction Notice, and unless the sale of the Issuance Shares described therein has been suspended, cancelled or otherwise terminated in accordance with the terms of this Agreement, such Sales Agent will use commercially reasonable efforts consistent with its normal trading and sales practices to sell such Issuance Shares up to the amount specified on the NYSE, and otherwise in accordance with the terms of such Transaction Notice. Such Sales Agent will use commercially reasonable efforts consistent with its normal trading and sales practices to provide written confirmation to the Company not later than 6:00 p.m. Eastern Time on the Issuance Date, and will in no event provide such confirmation later than the opening of the Trading Day next following the Trading Day on which it has made sales of Issuance Shares hereunder. Such written confirmation will set forth under the Actual Sold Issuance Amount for such Trading Day, the corresponding Sales Price and the Issuance Price payable to the Company in respect thereof. Each of the Company and the Operating Company acknowledges and agrees that (i) there can be no assurance that the such Sales Agent will be successful in selling Issuance Shares, and (ii) such Sales Agent will incur no liability or obligation to the Company, the Operating Company or any other person if it does not sell Issuance Shares for any reason other than a failure by such Sales Agent to use commercially reasonable efforts consistent with its normal trading and sales practices to sell such Issuance Shares as required under this Section 3. (ii) In addition, upon the terms and subject to the conditions of this Agreement and the related Master Forward Confirmation, a Forward Purchaser (or its affiliate) may borrow, offer and sell Forward Hedge Shares through a Forward Seller to hedge each Forward, and such Forward Seller shall use commercially reasonable efforts consistent with its normal trading and sales practices to sell Forward Hedge Shares with an aggregate Sales Price of up to the Maximum Amount, less the aggregate Sales Price for any Issuance Shares previously sold under this Agreement, based on and in accordance with such number of Transaction Notices, each specifying that it relates to a “Forward,” as the Company in its sole discretion shall choose to deliver during the Commitment Period and to which such Forward Purchaser and such Forward Seller have agreed, until the aggregate Sales Price of the Forward Hedge Shares sold under this Agreement, plus the aggregate Sales Prices for any Issuance Shares previously sold under this Agreement, equals the Maximum Amount or this Agreement is otherwise terminated. Subject to the foregoing and the other terms and conditions of this Agreement and the related Master Forward Confirmation, upon (1) the delivery of a Transaction Notice specifying that it relates to a “Forward,” and (2) such Forward Purchaser’s and such Forward Seller’s acceptance of the terms of such Transaction Notice, and unless the sale of the Forward Hedge Shares described therein has been suspended or otherwise terminated in accordance with the terms of this Agreement or the related Master Forward Confirmation, such Forward Seller will use commercially reasonable efforts consistent with its normal trading and sales practices to sell the Forward Hedge Shares on the NYSE, and otherwise in accordance with the terms of such Transaction Notice. (iii) The applicable Forward Seller will provide written confirmation to the Company and the related Forward Purchaser no later than the opening of the Trading Day next following each Trading Day on which it has made sales of Forward Hedge Shares hereunder setting forth the number of Forward Hedge Shares sold on such Trading Day, the corresponding Sales Price and the Forward Hedge Price payable to the related Forward Purchaser in respect thereof. Each of the Company and the Operating Company acknowledges and agrees that: (A) there can be no assurance that such Forward Purchaser (or its affiliate) will be successful in borrowing or that such Forward Seller will be successful in selling Forward Hedge Shares; (B) such Forward Seller will incur no liability or obligation to the Company, the Operating Company, the Forward Purchaser, or any other person if it does not sell Forward Hedge Shares borrowed by such Forward Purchaser (or its affiliate) for any reason other than a failure by such Forward Seller to use commercially reasonable efforts consistent with its normal trading and sales practices to sell such Forward Hedge Shares as required under this Section 3 and (C) such Forward Purchaser is not incurring any liability or obligation to the Company, the Operating Company or any other person under this Agreement. In acting hereunder, such Forward Seller will be acting as agent for such Forward Purchaser and not as principal. (iv) No later than the opening of the Trading Day next following the last Trading Day of each Forward Hedge Selling Period (or, if earlier, the date on which any Forward Hedge Selling Period is suspended or terminated pursuant to Section 3(h)), the applicable Forward Purchaser shall deliver to the Company a Supplemental Confirmation in respect of the Forward for such Forward Hedge Selling Period, which shall set forth the “Trade Date” for such Forward (which shall, subject to the terms of the related Master Forward Confirmation, be the last Trading Day of such Forward Hedge Selling Period), the “Effective Date” for such Forward (which shall, subject to the terms of the related Master Forward Confirmation, be the date one Settlement Cycle (as such term is defined in the related Master Forward Confirmation) immediately following the last Trading Day of such Forward Hedge Selling Period), the initial “Number of Shares” for such Forward (which shall be the Actual Sold Forward Amount for such Forward Hedge Selling Period), the “Maturity Date” for such Forward (which shall, subject to the terms of the related Master Forward Confirmation, be the date that follows the last Trading Day of such Forward Hedge Selling Period by the number of days or months set forth opposite the caption “Term” in the Transaction Notice for such Forward), the “Initial Forward Price” for such Forward, the “Spread” for such Forward, the “Volume-Weighted Hedge Price” for such Forward, the “Threshold Price” for such Forward, the “Initial Stock Loan Rate” for such Forward, the Maximum Stock Loan Rate for such Forward, the “Forward Price Reduction Dates” for such Forward (which shall be each of the dates set forth below the caption “Forward Price Reduction Dates” in the Transaction Notice for such Forward) and the “Forward Price Reduction Amounts” corresponding to such Forward Price Reduction Dates (which shall be each amount set forth opposite each “Forward Price Reduction Date” and below the caption “Forward Price Reduction Amounts” in the Transaction Notice for such Forward) and the “Regular Dividend Amounts” for such Forward (which shall be each of the amount(s) set forth below the caption “Regular Dividend Amounts” in the Transaction Notice for such Forward). (v) Notwithstanding anything herein to the contrary, the applicable Forward Seller’s obligation to use commercially reasonable efforts consistent with its normal trading and sales practices to sell such portion of the Forward Hedge Shares for any Forward hereunder shall be subject in all respects to the related Master Forward Confirmation. (vi) The Shares may be offered and sold by any method permitted by law, including by means of ordinary brokers’ transactions on the NYSE at the market prices, in block transactions, or as otherwise agreed to among the relevant parties, or by means of any other existing trading market for the Common Stock or to or through a market marker other than on an exchange. (vii) Upon the terms and subject to the conditions set forth herein, on any Trading Day as provided in Section 3(c)(ii) during the Commitment Period on which (A) the conditions set forth in paragraphs (a) and (b) of Section 6 have been satisfied and (B) no event described in clause (a) or clause (b) of the proviso contained in the definition of Forward Hedge Selling Period shall have occurred, the Company may exercise an Issuance by the delivery of a Transaction Notice specifying that it relates to an “Issuance,” executed by the Chief Executive Officer, the Chief Financial Officer, the Treasurer, the ~~President, the Corporate~~ Secretary or any Vice President of the Company (or such other authorized ~~officers)~~ officers of the ~~Company or the Operating~~ Company as may be acceptable to the applicable Sales ~~Agent~~Agent and the related Forward Seller), to such Sales Agent. The number of Issuance Shares that a Sales Agent shall use commercially reasonable efforts consistent with its normal trading and sales practices to sell pursuant to such Issuance shall have an aggregate Sales Price equal to the Issuance Amount. Each Issuance will be settled on the applicable Settlement Date following the Issuance Date. (viii) Upon the terms and subject to the conditions set forth herein, on any Trading Day as provided in Section 3(c)(ii) during the Commitment Period on which the conditions set forth in paragraphs (a) and (b) of Section 6 have been satisfied and provided that the Company shall have executed a Master Forward Confirmation with the applicable Forward Purchaser, the Company may exercise its right to call for a Forward by the delivery of a Transaction Notice specifying that it relates to a “Forward,” executed by the Chief Executive Officer, the Chief Financial Officer, the Treasurer, the ~~President, the Corporate~~ Secretary or any Vice President of the Company (or such other authorized ~~officers)~~ officers of the ~~Company or the Operating~~ Company as may be acceptable to the applicable ~~Forward Seller~~ Sales Agent and the ~~related~~ applicable Forward ~~Purchaser~~Seller), to such Forward Seller and such Forward Purchaser. The number of Forward Hedge Shares that such Forward Seller shall use commercially reasonable efforts consistent with its normal trading and sales practices to sell pursuant to such Forward shall have an aggregate Sales Price equal to the Forward Hedge Amount. Each sale of Forward Hedge Shares will be settled as between such Forward Seller and such Forward Purchaser on each applicable Forward Hedge Settlement Date following the relevant Forward Date. (b) The effectiveness of this Agreement (the “Closing”) shall be deemed to take place concurrently with the execution and delivery of this Agreement by the parties hereto and the completion of the closing transactions set forth in the immediately following sentence. At the Closing, the following closing transactions shall take place, each of which shall be deemed to occur simultaneously with the Closing: (i) each of the Company and the Operating Company shall deliver to the Sales Agents, the Forward Sellers and the Forward Purchasers a certificate executed by any two of its following representatives: the Chief Executive Officer, the Chief Financial Officer, the Treasurer, the ~~President, the Corporate~~ Secretary or any Vice President (or such other ~~authorized officers) of the Company or the Operating Company~~ representatives as may be acceptable to the Sales Agents, the Forward Sellers and the Forward Purchasers), signing in such capacity, dated the date of the Closing, certifying that attached thereto are true and complete copies of the resolutions duly adopted by the board of directors of the Company and the Operating Company, as applicable, authorizing the execution and delivery of this Agreement, each Forward Contract and the consummation of the transactions contemplated hereby and thereby, which authorization shall be in full force and effect on and as of the date of such certificate; (ii) each of the Company and the Operating Company shall deliver to the Sales Agents, the Forward Sellers and the Forward Purchasers a certificate executed by any two of its following representatives: the Chief Executive Officer, the Chief Financial Officer, the Treasurer, the ~~President, the Corporate~~ Secretary or any Vice President (or such other ~~authorized officers) of the Company or the Operating Company~~ representatives as may be acceptable to the Sales Agents, the Forward Sellers and the Forward Purchasers), signing in such capacity, dated the date of the Closing, confirming that the representations and warranties of the Company and the Operating Company, as applicable, contained in this Agreement and, solely in the case of the Company, each Master Forward Confirmation and each Supplemental Confirmation are (or will be upon execution of such agreement) true and correct and that each of the Company and the Operating Company has performed all of its obligations hereunder to be performed on or prior to the Closing Date and as to the matters set forth in ~~Sections~~ Section 6(a)(i~~) and 6(e~~); (iii) ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Company and the Operating Company (“Company Counsel”), or other counsel satisfactory to the Sales Agents, the Forward Sellers and the Forward Purchasers, shall deliver to the Sales Agents, the Forward Sellers and the Forward Purchasers a written opinion, dated the date of the Closing, and addressed to the Sales Agents, the Forward Sellers and the Forward Purchasers, in form and substance satisfactory to the Sales Agents, the Forward Sellers and the Forward Purchasers, of the same tenor as the opinions referred to in Section 6(c); (iv) ~~▇▇▇▇▇▇ ▇▇▇▇▇▇~~ Sidley Austin LLP, counsel to the Sales Agents, the Forward Sellers and the Forward Purchasers, shall deliver to the Sales Agents, the Forward Sellers and the Forward Purchasers a written opinion, dated the date of the Closing, and addressed to the Sales Agents, the Forward Sellers and the Forward Purchasers, in form and substance satisfactory to the Sales Agents, the Forward Sellers and the Forward Purchasers; (v) ~~▇▇▇▇▇~~ Ernst & ~~▇▇▇▇▇~~ Young shall deliver to the Sales Agents and the Forward Sellers a letter, dated the Closing Date, in form and substance satisfactory to the Sales Agents and the Forward Sellers; and (vi) the Company and the Operating Company, jointly and severally, without duplication, shall pay the expenses set forth in Sections 5(d), (e) and (i) by wire transfer to the account designated by the applicable Sales Agent in writing prior to the Closing. (i) On any Trading Day during the Commitment Period, the Company may deliver a Transaction Notice to a Sales Agent (in the case of an Issuance) or a Forward Seller and a Forward Purchaser (in the case of a Forward), subject to the satisfaction of the conditions set forth in Section 6; provided, however, that (1) the Issuance Amount or Forward Hedge Amount, as the case may be, for each Transaction as designated by the Company in the applicable Transaction Notice shall in no event exceed $100,000,000 for any Issuance or Forward, as the case may be, without the prior written consent of such Agent or such Forward Seller, as applicable, which may be withheld in such Sales Agent’s or such Forward Seller’s sole discretion and (2) notwithstanding anything in this Agreement or the related Master Forward Confirmation to the contrary, none of such Forward Purchaser, such Sales Agent or such Forward Seller shall have any further obligations with respect to any Transaction Notice if and to the extent the aggregate Sales Price of the Shares sold pursuant thereto, together with the aggregate Sales Price of the Shares previously sold under this Agreement, shall exceed the Maximum Amount. The Company shall have the right, in its sole discretion, to amend at any time and from time to time any Transaction Notice subject to compliance with the limitations set forth in this Agreement; provided, however, that (i) the Company may not amend the Issuance Amount or Forward HeComp

Appears in 1 contract

Sources: Equity Distribution Agreement (Welltower Inc.)

Issuances and Forwards. (i) Upon the terms and subject to the conditions of this Agreement, the Company may issue Issuance Shares through a Sales Agent, and such Sales Agent shall use commercially reasonable efforts consistent with its normal trading and sales practices to sell Issuance Shares, with an aggregate Sales Price of up to the Maximum Amount, less the aggregate Sales Price for any Forward Hedge Shares previously sold under this Agreement, based on and in accordance with such number of Transaction Notices, each specifying that it relates to an “Issuance,” as the Company in its sole discretion shall choose to deliver during the Commitment Period until the aggregate Sales Price of the Issuance Shares sold under this Agreement, plus the aggregate Sales Prices for any Forward Hedge Shares previously sold under this Agreement, equals the Maximum Amount, or this Agreement is otherwise terminated. Subject to the foregoing and the other terms and conditions of this Agreement, upon (1) the delivery of a Transaction Notice specifying that it relates to an “Issuance,” and (2) such Sales Agent’s acceptance of the terms of such Transaction Notice, and unless the sale of the Issuance Shares described therein has been suspended, cancelled or otherwise terminated in accordance with the terms of this Agreement, such Sales Agent will use commercially reasonable efforts consistent with its normal trading and sales practices to sell such Issuance Shares up to the amount specified on the NYSE, and otherwise in accordance with the terms of such Transaction Notice. Such Sales Agent will use commercially reasonable efforts consistent with its normal trading and sales practices to provide written confirmation to the Company not later than 6:00 p.m. Eastern Time on the Issuance Date, and will in no event provide such confirmation later than the opening of the Trading Day next following the Trading Day on which it has made sales of Issuance Shares hereunder. Such written confirmation will set forth under the Actual Sold Issuance Amount for such Trading Day, the corresponding Sales Price and the Issuance Price payable to the Company in respect thereof. Each of the Company and the Operating Company acknowledges and agrees that (i) there can be no assurance that the such Sales Agent will be successful in selling Issuance Shares, and (ii) such Sales Agent will incur no liability or obligation to the Company, the Operating Company or any other person if it does not sell Issuance Shares for any reason other than a failure by such Sales Agent to use commercially reasonable efforts consistent with its normal trading and sales practices to sell such Issuance Shares as required under this Section 3. (ii) In addition, upon the terms and subject to the conditions of this Agreement and the related Master Forward Confirmation, a Forward Purchaser (or its affiliate) may borrow, offer and sell Forward Hedge Shares through a Forward Seller to hedge each Forward, and such Forward Seller shall use commercially reasonable efforts consistent with its normal trading and sales practices to sell Forward Hedge Shares with an aggregate Sales Price of up to the Maximum Amount, less the aggregate Sales Price for any Issuance Shares previously sold under this Agreement, based on and in accordance with such number of Transaction Notices, each specifying that it relates to a “Forward,” as the Company in its sole discretion shall choose to deliver during the Commitment Period and to which such Forward Purchaser and such Forward Seller have agreed, until the aggregate Sales Price of the Forward Hedge Shares sold under this Agreement, plus the aggregate Sales Prices for any Issuance Shares previously sold under this Agreement, equals the Maximum Amount or this Agreement is otherwise terminated. Subject to the foregoing and the other terms and conditions of this Agreement and the related Master Forward Confirmation, upon (1) the delivery of a Transaction Notice specifying that it relates to a “Forward,” and (2) such Forward Purchaser’s and such Forward Seller’s acceptance of the terms of such Transaction Notice, and unless the sale of the Forward Hedge Shares described therein has been suspended or otherwise terminated in accordance with the terms of this Agreement or the related Master Forward Confirmation, such Forward Seller will use commercially reasonable efforts consistent with its normal trading and sales practices to sell the Forward Hedge Shares on the NYSE, and otherwise in accordance with the terms of such Transaction Notice. (iii) The applicable Forward Seller will provide written confirmation to the Company and the related Forward Purchaser no later than the opening of the Trading Day next following each Trading Day on which it has made sales of Forward Hedge Shares hereunder setting forth the number of Forward Hedge Shares sold on such Trading Day, the corresponding Sales Price and the Forward Hedge Price payable to the related Forward Purchaser in respect thereof. Each of the Company and the Operating Company acknowledges and agrees that: (A) there can be no assurance that such Forward Purchaser (or its affiliate) will be successful in borrowing or that such Forward Seller will be successful in selling Forward Hedge Shares; (B) such Forward Seller will incur no liability or obligation to the Company, the Operating Company, the Forward Purchaser, or any other person if it does not sell Forward Hedge Shares borrowed by such Forward Purchaser (or its affiliate) for any reason other than a failure by such Forward Seller to use commercially reasonable efforts consistent with its normal trading and sales practices to sell such Forward Hedge Shares as required under this Section 3 and (C) such Forward Purchaser is not incurring any liability or obligation to the Company, the Operating Company or any other person under this Agreement. In acting hereunder, such Forward Seller will be acting as agent for such Forward Purchaser and not as principal. (iv) No later than the opening of the Trading Day next following the last Trading Day of each Forward Hedge Selling Period (or, if earlier, the date on which any Forward Hedge Selling Period is suspended or terminated pursuant to Section 3(h)), the applicable Forward Purchaser shall deliver to the Company a Supplemental Confirmation in respect of the Forward for such Forward Hedge Selling Period, which shall set forth the “Trade Date” for such Forward (which shall, subject to the terms of the related Master Forward Confirmation, be the last Trading Day of such Forward Hedge Selling Period), the “Effective Date” for such Forward (which shall, subject to the terms of the related Master Forward Confirmation, be the date one Settlement Cycle (as such term is defined in the related Master Forward Confirmation) immediately following the last Trading Day of such Forward Hedge Selling Period), the initial “Number of Shares” for such Forward (which shall be the Actual Sold Forward Amount for such Forward Hedge Selling Period), the “Maturity Date” for such Forward (which shall, subject to the terms of the related Master Forward Confirmation, be the date that follows the last Trading Day of such Forward Hedge Selling Period by the number of days or months set forth opposite the caption “Term” in the Transaction Notice for such Forward), the “Initial Forward Price” for such Forward, the “Spread” for such Forward, the “Volume-Weighted Hedge Price” for such Forward, the “Threshold Price” for such Forward, the “Initial Stock Loan Rate” for such Forward, the Maximum Stock Loan Rate for such Forward, the “Forward Price Reduction Dates” for such Forward (which shall be each of the dates set forth below the caption “Forward Price Reduction Dates” in the Transaction Notice for such Forward) and the “Forward Price Reduction Amounts” corresponding to such Forward Price Reduction Dates (which shall be each amount set forth opposite each “Forward Price Reduction Date” and below the caption “Forward Price Reduction Amounts” in the Transaction Notice for such Forward) and the “Regular Dividend Amounts” for such Forward (which shall be each of the amount(s) set forth below the caption “Regular Dividend Amounts” in the Transaction Notice for such Forward). (v) Notwithstanding anything herein to the contrary, the applicable Forward Seller’s obligation to use commercially reasonable efforts consistent with its normal trading and sales practices to sell such portion of the Forward Hedge Shares for any Forward hereunder shall be subject in all respects to the related Master Forward Confirmation. (vi) The Shares may be offered and sold by any method permitted by law, including by means of ordinary brokers’ transactions on the NYSE at the market prices, in block transactions, or as otherwise agreed to among the relevant parties, or by means of any other existing trading market for the Common Stock or to or through a market marker other than on an exchange. (vii) Upon the terms and subject to the conditions set forth herein, on any Trading Day as provided in Section 3(c)(ii) during the Commitment Period on which (A) the conditions set forth in paragraphs (a) and (b) of Section 6 have been satisfied and (B) no event described in clause (a) or clause (b) of the proviso contained in the definition of Forward Hedge Selling Period shall have occurred, the Company may exercise an Issuance by the delivery of a Transaction Notice specifying that it relates to an “Issuance,” executed by the Chief Executive Officer, the Chief Financial Officer, the Treasurer, the President, the Corporate Secretary or any Vice President (or such other authorized officers) of the Company or the Operating Company as may be acceptable to the applicable Sales Agent), to such Sales Agent. The number of Issuance Shares that a Sales Agent shall use commercially reasonable efforts consistent with its normal trading and sales practices to sell pursuant to such Issuance shall have an aggregate Sales Price equal to the Issuance Amount. Each Issuance will be settled on the applicable Settlement Date following the Issuance Date. (viii) Upon the terms and subject to the conditions set forth herein, on any Trading Day as provided in Section 3(c)(ii) during the Commitment Period on which the conditions set forth in paragraphs (a) and (b) of Section 6 have been satisfied and provided that the Company shall have executed a Master Forward Confirmation with the applicable Forward Purchaser, the Company may exercise its right to call for a Forward by the delivery of a Transaction Notice specifying that it relates to a “Forward,” executed by the Chief Executive Officer, the Chief Financial Officer, the Treasurer, the President, the Corporate Secretary or any Vice President (or such other authorized officers) of the Company or the Operating Company as may be acceptable to the applicable Forward Seller and the related Forward Purchaser), to such Forward Seller and such Forward Purchaser. The number of Forward Hedge Shares that such Forward Seller shall use commercially reasonable efforts consistent with its normal trading and sales practices to sell pursuant to such Forward shall have an aggregate Sales Price equal to the Forward Hedge Amount. Each sale of Forward Hedge Shares will be settled as between such Forward Seller and such Forward Purchaser on each applicable Forward Hedge Settlement Date following the relevant Forward Date. (b) The effectiveness of this Agreement (the “Closing”) shall be deemed to take place concurrently with the execution and delivery of this Agreement by the parties hereto and the completion of the closing transactions set forth in the immediately following sentence. At the Closing, the following closing transactions shall take place, each of which shall be deemed to occur simultaneously with the Closing: (i) each of the Company and the Operating Company shall deliver to the Sales Agents, the Forward Sellers and the Forward Purchasers a certificate executed by any two of its following representatives: the Chief Executive Officer, the Chief Financial Officer, the Treasurer, the President, the Corporate Secretary or any Vice President (or such other authorized officers) of the Company or the Operating Company as may be acceptable to the Sales Agents, the Forward Sellers and the Forward Purchasers), signing in such capacity, dated the date of the Closing, certifying that attached thereto are true and complete copies of the resolutions duly adopted by the board of directors of the Company and the Operating Company, as applicable, authorizing the execution and delivery of this Agreement, each Forward Contract and the consummation of the transactions contemplated hereby and thereby, which authorization shall be in full force and effect on and as of the date of such certificate; (ii) each of the Company and the Operating Company shall deliver to the Sales Agents, the Forward Sellers and the Forward Purchasers a certificate executed by any two of its following representatives: the Chief Executive Officer, the Chief Financial Officer, the Treasurer, the President, the Corporate Secretary or any Vice President (or such other authorized officers) of the Company or the Operating Company as may be acceptable to the Sales Agents, the Forward Sellers and the Forward Purchasers), signing in such capacity, dated the date of the Closing, as to the matters set forth in Sections 6(a)(i) and 6(e); (iii) ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Company and the Operating Company (“Company Counsel”), or other counsel satisfactory to the Sales Agents, the Forward Sellers and the Forward Purchasers, shall deliver to the Sales Agents, the Forward Sellers and the Forward Purchasers a written opinion, dated the date of the Closing, and addressed to the Sales Agents, the Forward Sellers and the Forward Purchasers, in form and substance satisfactory to the Sales Agents, the Forward Sellers and the Forward Purchasers, of the same tenor as the opinions referred to in Section 6(c); (iv) ~~▇▇▇▇▇▇ ▇▇▇▇▇▇~~ Sidley Austin LLP, counsel to the Sales Agents, the Forward Sellers and the Forward Purchasers, shall deliver to the Sales Agents, the Forward Sellers and the Forward Purchasers a written opinion, dated the date of the Closing, and addressed to the Sales Agents, the Forward Sellers and the Forward Purchasers, in form and substance satisfactory to the Sales Agents, the Forward Sellers and the Forward Purchasers; (v) ▇▇▇▇▇ & ▇▇▇▇▇ shall deliver to the Sales Agents and the Forward Sellers a letter, dated the Closing Date, in form and substance satisfactory to the Sales Agents and the Forward Sellers; and (vi) the Company and the Operating Company, jointly and severally, without duplication, shall pay the expenses set forth in Sections 5(d), (e) and (i) by wire transfer to the account designated by the applicable Sales Agent in writing prior to the Closing. (i) On any Trading Day during the Commitment Period, the Company may deliver a Transaction Notice to a Sales Agent (in the case of an Issuance) or a Forward Seller and a Forward Purchaser (in the case of a Forward), subject to the satisfaction of the conditions set forth in Section 6; provided, however, that (1) the Issuance Amount or Forward Hedge Amount, as the case may be, for each Transaction as designated by the Company in the applicable Transaction Notice shall in no event exceed $100,000,000 for any Issuance or Forward, as the case may be, without the prior written consent of such Agent or such Forward Seller, as applicable, which may be withheld in such Sales Agent’s or such Forward Seller’s sole discretion and (2) notwithstanding anything in this Agreement or the related Master Forward Confirmation to the contrary, none of such Forward Purchaser, such Sales Agent or such Forward Seller shall have any further obligations with respect to any Transaction Notice if and to the extent the aggregate Sales Price of the Shares sold pursuant thereto, together with the aggregate Sales Price of the Shares previously sold under this Agreement, shall exceed the Maximum Amount. The Company shall have the right, in its sole discretion, to amend at any time and from time to time any Transaction Notice subject to compliance with the limitations set forth in this Agreement; provided, however, that (i) the Company may not amend the Issuance Amount or Forward He

Appears in 1 contract

Sources: Equity Distribution Agreement (Welltower Inc.)

Issuances and Forwards. (a) (i) Upon the terms and subject to the conditions of this Agreement, the Company may issue Issuance Shares through a Sales Agent, and ~~such~~ Sales Agent shall use commercially reasonable efforts ~~consistent with its normal trading and sales practices~~ to sell Issuance Shares, with an aggregate Sales Price of up to the Maximum Amount, less the aggregate Sales Price for any Forward Hedge Shares previously sold under ~~this Agreement~~the Distribution Agreements, based on and in accordance with such number of Transaction Notices, each specifying that it relates to an “Issuance,” as the Company in its sole discretion shall choose to deliver during the Commitment Period until the aggregate Sales Price of the Issuance Shares sold under ~~this Agreement~~the Distribution Agreements, plus the aggregate Sales Prices for any Forward Hedge Shares previously sold under ~~this Agreement~~the Distribution Agreements, equals the Maximum Amount, or this Agreement is otherwise terminated. Subject to the foregoing and the other terms and conditions of this Agreement, upon ~~(1)~~ the delivery of a Transaction Notice specifying that it relates to an “Issuance,” ~~and (2) such Sales Agent’s acceptance of the terms of such Transaction Notice,~~ and unless the sale of the Issuance Shares described therein has been suspended, cancelled or otherwise terminated in accordance with the terms of this Agreement, ~~such~~ Sales Agent will use commercially reasonable efforts consistent with its normal trading and sales practices to sell such Issuance Shares up to the amount specified on into the NYSE, and otherwise in accordance with the terms of such Transaction Notice. ~~Such~~ Sales Agent will use commercially reasonable efforts ~~consistent with its normal trading and sales practices~~ to provide written confirmation to the Company not later than 6:00 p.m. Eastern Time on the Issuance Date, and will in no event provide such confirmation later than the opening of the Trading Day next following the Trading Day on which it has made sales of Issuance Shares hereunder. Such written confirmation will set forth ~~under~~ the portion of the Actual Sold Issuance Amount for such Trading Day, the corresponding Sales Price and the Issuance Price payable to the Company in respect thereof. ~~Each of~~ Sales Agent may sell Issuance Shares in the ~~Company and the Operating~~ manner described in Section 3(a)(ii) herein. The Company acknowledges and agrees that (i) there can be no assurance that ~~the such~~ Sales Agent will be successful in selling Issuance Shares, ~~and~~ (ii) ~~such~~ Sales Agent will incur no liability or obligation to the ~~Company, the Operating~~ Company or any other person if it does not sell Issuance Shares for any reason other than a failure by ~~such~~ Sales Agent to use commercially reasonable efforts consistent with its normal trading and sales practices to sell such Issuance Shares as required under this Section 33 and (iii) the Sales Agent shall be under no obligation to purchase Issuance Shares on a principal basis pursuant to this Agreement. The amount of any commission, discount or other compensation to be paid by the Company to the Sales Agent, when the Sales Agent is acting as principal, in connection with the sale of the Issuance Shares shall be as separately agreed among the parties hereto at the time of any such sales. (ii) In addition, upon the terms and subject to the conditions of this Agreement and the ~~related~~ Master Forward Confirmation, a the Forward Purchaser ~~(or its affiliate)~~ may borrow, offer and sell Forward Hedge Shares through a the Forward Seller to hedge each Forward, and ~~such~~ the Forward Seller shall use commercially reasonable efforts ~~consistent with its normal trading and sales practices~~ to sell Forward Hedge Shares with an aggregate Sales Price of up to the Maximum Amount, less the aggregate Sales Price for any Issuance Shares previously sold under ~~this Agreement~~the Distribution Agreements, based on and in accordance with such number of Transaction Notices, each specifying that it relates to a “Forward,” as the Company in its sole discretion shall choose to deliver during the Commitment Period ~~and to which such Forward Purchaser and such Forward Seller have agreed,~~ until the aggregate Sales Price of the Forward Hedge Shares sold under ~~this Agreement~~the Distribution Agreements, plus the aggregate Sales Prices for any Issuance Shares previously sold under ~~this Agreement~~the Distribution Agreements, equals the Maximum Amount or this Agreement is otherwise terminated. Subject to the foregoing and the other terms and conditions of this Agreement and the ~~related~~ Master Forward Confirmation, upon ~~(1)~~ the delivery of a Transaction Notice specifying that it relates to a “Forward,” ~~and (2) such Forward Purchaser’s and such Forward Seller’s acceptance of the terms of such Transaction Notice,~~ and unless the sale of the Forward Hedge Shares described therein has been suspended or otherwise terminated in accordance with the terms of this Agreement or the ~~related~~ Master Forward ~~Confirmation~~Confirmation (including without limitation as a result of any event described in clause (a) or (b) of the proviso contained in the definition of Forward Hedge Selling Period), ~~such~~ the Forward Purchaser will use commercially reasonable efforts to borrow Forward Hedge Shares up to the amount specified and the Forward Seller will use commercially reasonable efforts consistent with its normal trading and sales practices to sell ~~the~~ such Forward Hedge Shares on into the NYSE, and otherwise in accordance with the terms of such Transaction Notice. (iii) The ~~applicable~~ Forward Seller will provide written confirmation to the Company and the ~~related~~ Forward Purchaser no later than the opening of the Trading Day next following each Trading Day on which it has made sales of Forward Hedge Shares hereunder setting forth the number of Forward Hedge Shares sold on such Trading Day, the corresponding Sales Price and the Forward Hedge Price payable to the ~~related~~ Forward Purchaser in respect thereof. Each of the Company and the ~~Operating Company~~ Forward Purchaser acknowledges and agrees that: (A) there can be no assurance that ~~such~~ the Forward Purchaser ~~(or its affiliate)~~ will be successful in borrowing or that ~~such~~ the Forward Seller will be successful in selling Forward Hedge Shares; (B) ~~such~~ the Forward Seller will incur no liability or obligation to the Company, the ~~Operating Company, the~~ Forward ~~Purchaser~~Purchasers, or any other person if it does not sell Forward Hedge Shares borrowed by ~~such~~ the Forward Purchaser ~~(or its affiliate)~~ for any reason other than a failure by ~~such~~ the Forward Seller to use commercially reasonable efforts consistent with its normal trading and sales practices to sell such Forward Hedge Shares as required under this Section 3 and (C) ~~such~~ the Forward Purchaser ~~is not incurring any~~ will incur no liability or obligation to the Company, the ~~Operating Company~~ Forward Seller, or any other person if it does not borrow Forward Hedge Shares for any reason other than a failure by the Forward Purchaser to use commercially reasonable efforts to borrow such Forward Hedge Shares as required under this ~~Agreement~~Section 3. In acting hereunder, ~~such~~ the Forward Seller will be acting as agent for ~~such~~ the Forward Purchaser and not as principal. (iv) No later than the opening of the Trading Day next following the last Trading Day of each Forward Hedge Selling Period (or, if earlier, the date on which any Forward Hedge Selling Period is suspended or terminated pursuant to Section 3(h)), the ~~applicable~~ Forward Purchaser shall execute and deliver to the Company a “Supplemental ~~Confirmation~~ Confirmation” in respect of the Forward for such Forward Hedge Selling Period, which “Supplemental Confirmation” shall set forth the “Trade Date” for such Forward (which shall, subject to the terms of the ~~related~~ Master Forward Confirmation, be the last Trading Day of such Forward Hedge Selling Period), the “Effective Date” for such Forward (which shall, subject to the terms of the ~~related~~ Master Forward Confirmation, be the date one Settlement Cycle (as such term is defined in the ~~related~~ Master Forward Confirmation) immediately following the last Trading Day of such Forward Hedge Selling Period), the initial “Number of Shares” for such Forward (which shall be the Actual Sold Forward Amount for such Forward Hedge Selling Period), the “Maturity Date” for such Forward (which shall, subject to the terms of the ~~related~~ Master Forward Confirmation, be the date that follows the last Trading Day of such Forward Hedge Selling Period by the number of days or months set forth opposite the caption “Term” in the Transaction Notice for such Forward, which number of days or months shall in no event be less than three months nor more than two years), the “Initial Forward Price” for such Forward, the “Spread” for such Forward, the “Volume-Weighted Hedge Price” for such Forward, the “Threshold Price” for such Forward, the “Initial Stock Loan Rate” for such Forward, the “Maximum Stock Loan ~~Rate~~ Rate” for such Forward, the “Forward Price Reduction Dates” for such Forward (which shall be each of the dates set forth below the caption “Forward Price Reduction Dates” in the Transaction Notice for such Forward) and the “Forward Price Reduction Amounts” corresponding to such Forward Price Reduction Dates (which shall be each amount set forth opposite each “Forward Price Reduction Date” and below the caption “Forward Price Reduction Amounts” in the Transaction Notice for such Forward) and the “Regular Dividend Amounts” for such Forward (which shall be each of the amount(s) set forth below the caption “Regular Dividend Amounts” in the Transaction Notice for such Forward). (v) Notwithstanding anything herein to the contrary, the ~~applicable~~ Forward Purchaser’s obligation to use commercially reasonable efforts to borrow all or any portion of the Forward Hedge Shares (and the Forward Seller’s obligation to use commercially reasonable efforts ~~consistent with its normal trading and sales practices~~ to sell such portion of the Forward Hedge ~~Shares~~ Shares) for any Forward hereunder shall be subject in all respects to the ~~related~~ last paragraph of Section 3 of the Master Forward Confirmation. (vi) The Shares may be offered and sold in (A) privately negotiated transactions (if and only if the parties hereto have so agreed in writing), or (B) by any other method or payment permitted by ~~law~~law deemed to be an “at the market” offering as defined in Rule 415 of the Securities Act, including ~~by means of ordinary brokers’ transactions~~ sales made directly on the NYSE ~~at the market prices, in block transactions,~~ or ~~as otherwise agreed to among the relevant parties, or by means of any other existing trading market for the Common Stock or~~ sales made to or through a market ~~marker other than on~~ maker or through an ~~exchange~~electronic communications network. Nothing in this Agreement shall be deemed to require any party to agree to the method of offer and sale specified in clause (A) above, and any party may withhold its consent thereto in such party’s sole discretion. (vii) Upon the terms and subject to the conditions set forth herein, on any Trading Day as provided in Section ~~3(c)(ii~~(c)(ii) hereof during the Commitment Period on which (A) the conditions set forth in paragraphs (a) and (b) of Section 6 have been satisfied and (B) no event described in clause (a) or clause (b) of the proviso contained in the definition of Forward Hedge Selling Period shall have occurred, the Company may exercise an Issuance by the delivery of a Transaction Notice specifying that it relates to an “Issuance,” executed by the Chief Executive Officer, the Chief Financial Officer, the Treasurer, the ~~President, the Corporate~~ Secretary or any Vice President of the Company (or such other authorized ~~officers)~~ officers of the ~~Company or the Operating~~ Company as may be acceptable to the ~~applicable~~ Sales ~~Agent~~Agent and the Forward Seller), to ~~such~~ Sales Agent. The number of Issuance Shares that a Sales Agent shall use commercially reasonable efforts ~~consistent with its normal trading and sales practices~~ to sell pursuant to such Issuance shall have an aggregate Sales Price equal to the Issuance Amount. Each Issuance will be settled on the applicable Settlement Date following the Issuance Date. (viii) Upon the terms and subject to the conditions set forth herein, on any Trading Day as provided in Section ~~3(c)(ii~~(c)(ii) during the Commitment Period on which the conditions set forth in paragraphs (a) and (b) of Section 6 have been ~~satisfied and provided that the Company shall have executed a Master Forward Confirmation with the applicable Forward Purchaser~~satisfied, the Company may exercise its right to call for a Forward by the delivery of a Transaction Notice specifying that it relates to a “Forward,” executed by the Chief Executive Officer, the Chief Financial Officer, the Treasurer, the ~~President, the Corporate~~ Secretary or any Vice President of the Company (or such other authorized ~~officers)~~ officers of the ~~Company or the Operating~~ Company as may be acceptable to the ~~applicable~~ Sales Agent and the Forward Seller), to the Forward Seller and the ~~related Forward Purchaser), to such Forward Seller and such~~ Forward Purchaser. The number of Forward Hedge Shares that ~~such~~ the Forward Purchaser shall use commercially reasonable efforts to borrow and that the Forward Seller shall use commercially reasonable efforts ~~consistent with its normal trading and sales practices~~ to sell pursuant to such Forward shall have an aggregate Sales Price equal to the Forward Hedge Amount. Each sale of Forward Hedge Shares will be settled as between ~~such~~ the Forward Seller and ~~such~~ the Forward Purchaser on each applicable Forward Hedge Settlement Date following the relevant Forward Date. (b) The effectiveness of this Agreement (the “Closing”) shall be deemed to take place concurrently with the execution and delivery of this Agreement by the parties hereto and the completion of the closing transactions set forth in the immediately following sentence. At the Closing, the following closing transactions shall take place, each of which shall be deemed to occur simultaneously with the Closing: (i) ~~each of~~ the ~~Company and the Operating~~ Company shall deliver to ~~the~~ Sales ~~Agents, the Forward Sellers~~ Agent and the Forward ~~Purchasers~~ Seller a certificate executed by any two of ~~its following representatives~~the following: the Chief Executive Officer, the Chief Financial Officer, the Treasurer, the ~~President, the Corporate~~ Secretary or any Vice President of the Company (or such other authorized ~~officers)~~ officers of the ~~Company or the Operating~~ Company as may be acceptable to the Sales ~~Agents, the Forward Sellers~~ Agent and the Forward ~~Purchasers~~Seller), signing in such capacity, dated the date of the ~~Closing,~~ Closing certifying that attached thereto are true and complete copies of the resolutions duly adopted by the ~~board~~ Board of ~~directors~~ Directors of the Company ~~and the Operating Company, as applicable,~~ authorizing the execution and delivery of this Agreement, ~~each~~ the Master Forward ~~Contract~~ Confirmation and the consummation of the transactions contemplated hereby and thereby, which authorization shall be in full force and effect on and as of the date of such ~~certificate~~certificate and; (ii) ~~each of~~ the ~~Company and the Operating~~ Company shall deliver to ~~the~~ Sales ~~Agents, the Forward Sellers~~ Agent and the Forward ~~Purchasers~~ Seller a certificate executed by any two of ~~its following representatives~~the following: the Chief Executive Officer, the Chief Financial Officer, the Treasurer, the ~~President, the Corporate~~ Secretary or any Vice President of the Company (or such other authorized ~~officers)~~ officers of the ~~Company or the Operating~~ Company as may be acceptable to the Sales ~~Agents, the Forward Sellers~~ Agent and the Forward ~~Purchasers~~Seller), signing in such capacity, dated the date of the Closing, confirming that the representations and warranties of the Company contained in this Agreement and the Master Forward Confirmation are true and correct and that the Company has performed all of its obligations hereunder to be performed on or prior to the Closing Date and as to the matters set forth in ~~Sections~~ Section 6(a)(i) ~~and 6(e)~~hereof; (iii) ▇▇▇▇▇▇, ▇▇▇▇ , Loop & ▇▇▇▇▇▇▇▇ ▇, LLP, counsel to the ~~Company and the Operating~~ Company (“Company Counsel”), or other counsel satisfactory to the Sales ~~Agents, the Forward Sellers~~ Agent and the Forward ~~Purchasers~~Seller, shall deliver to ~~the~~ Sales ~~Agents, the Forward Sellers~~ Agent and the Forward ~~Purchasers~~ Seller a written opinion, dated the date of the ~~Closing,~~ Closing and addressed to ~~the~~ Sales ~~Agents, the Forward Sellers~~ Agent and the Forward ~~Purchasers~~Seller, in form and substance satisfactory to the Sales ~~Agents, the~~ Agent or Forward ~~Sellers and the Forward Purchasers~~Seller, of the same tenor as the opinions referred to in Section 6(c)) of this Agreement; (iv) ▇▇▇▇▇▇ ~~▇▇▇▇▇▇~~ Lovells US LLP, counsel to Sales Agent and the Alternative Sales Agents~~, the Forward Sellers and the Forward Purchasers~~, shall deliver to ~~the~~ Sales ~~Agents~~Agent, the ~~Forward Sellers~~ Alternative Sales Agents and the Forward ~~Purchasers a written opinion~~Seller, dated the date of the ~~Closing,~~ Closing and addressed to ~~the~~ Sales ~~Agents~~Agent, the ~~Forward Sellers~~ Alternative Sales Agents and the Forward ~~Purchasers~~Seller, in form and substance satisfactory to the Sales ~~Agents~~Agent, the Forward ~~Sellers~~ Seller and the Forward ~~Purchasers~~Purchaser; (v) ~~▇▇▇▇▇~~ Ernst & ~~▇▇▇▇▇~~ Young LLP shall deliver to ~~the~~ Sales ~~Agents~~ Agent and the Forward ~~Sellers~~ Seller a letter, dated the Closing Date, in form and substance satisfactory to ~~the~~ Sales ~~Agents and the Forward Sellers~~Agent; and (vi) the Company ~~and the Operating Company, jointly and severally, without duplication,~~ shall pay the expenses set forth in ~~Sections~~ Section 5(d), (e) and (i) hereof by wire transfer to the account designated by ~~the applicable~~ Sales Agent in writing prior to the Closing. (i) On any Trading Day during the Commitment Period, the Company may deliver a Transaction Notice to a Sales Agent (in the case of an Issuance) or a the Forward Seller and a the Forward Purchaser (in the case of a Forward), subject to the satisfaction of the conditions set forth in Section 6; provided, however, that (1) the Issuance Amount or Forward Hedge Amount, as the case may be, for each Transaction as designated by the Company in the applicable Transaction Notice shall in no event exceed $100,000,000 for any Issuance or Forward, as the case may be, without the prior written consent of ~~such~~ Sales Agent or ~~such~~ the Forward Seller, as applicable, which may be withheld in ~~such~~ Sales Agent’s or ~~such~~ the Forward Seller’s sole discretion and (2) notwithstanding anything in this Agreement or the ~~related~~ Master Forward Confirmation to the contrary, none of ~~such~~ the Forward Purchaser, ~~such~~ Sales Agent or ~~such~~ the Forward Seller shall have any further obligations with respect to any Transaction Notice if and to the extent the aggregate Sales Price of the Shares sold pursuant thereto, together with the aggregate Sales Price of the Shares previously sold under ~~this Agreement~~the Distribution Agreements, shall exceed the Maximum Amount. The Company shall have the right, in its sole discretion, to amend at any time and from time to time any Transaction Notice subject to compliance with the limitations set forth in this Agreement; provided, however, that (i) the Company may not amend the Issuance Amount or Forward Heshal

Appears in 1 contract

Sources: Equity Distribution Agreement (Welltower Inc.)

Issuances and Forwards. (a) (i) Upon the terms and subject to the conditions of this Agreement, the Company may issue Issuance Shares through a the Designated Sales Agent, and ~~such~~ the Designated Sales Agent shall use commercially reasonable efforts consistent with its normal trading and sales practices to sell Issuance Shares, with an aggregate Sales Price of up to the Maximum Amount, less the aggregate Sales Price for any Forward Hedge Shares previously sold under this Agreement, based on and in accordance with such number of Transaction Notices, each specifying that it relates to an “Issuance,” as the Company in its sole discretion shall choose to deliver during the Commitment Period until the aggregate Sales Price of the Issuance Shares sold under this Agreement, plus the aggregate Sales Prices for any Forward Hedge Shares previously sold under this Agreement, equals the Maximum Amount, or this Agreement is otherwise terminated. Subject to the foregoing and the other terms and conditions of this Agreement, upon (1) the delivery of a Transaction Notice specifying that it relates to an “Issuance,” and (2) ~~such~~ the Designated Sales Agent’s acceptance of the terms of such Transaction Notice, and unless the sale of the Issuance Shares described therein has been suspended, cancelled or otherwise terminated in accordance with the terms of this Agreement, ~~such~~ the Designated Sales Agent will use commercially reasonable efforts consistent with its normal trading and sales practices to sell such Issuance Shares up to the amount specified on the NYSE, and otherwise in accordance with the terms of such Transaction Notice. ~~Such~~ The Designated Sales Agent will use commercially reasonable efforts consistent with its normal trading and sales practices to provide written confirmation to the Company not later than 6:00 p.m. Eastern Time on the Issuance Date, and will in no event provide such confirmation later than the opening of the Trading Day next following the Trading Day on which it has made sales of Issuance Shares hereunder. Such written confirmation will set forth ~~under~~ the portion of the Actual Sold Issuance Amount for such Trading Day, the corresponding Sales Price and the Issuance Price payable to the Company in respect thereof. ~~Each of the Company and the Operating~~ The Company acknowledges and agrees that (i) there can be no assurance that the ~~such~~ Designated Sales Agent will be successful in selling Issuance Shares, and (ii) ~~such~~ the Designated Sales Agent will incur no liability or obligation to the ~~Company, the Operating~~ Company or any other person if it does not sell Issuance Shares for any reason other than a failure by such Designated Sales Agent to use commercially reasonable efforts consistent with its normal trading and sales practices to sell such Issuance Shares as required under this Section 3. (ii) In addition, upon the terms and subject to the conditions of this Agreement and the related Master Forward Confirmation, a the Designated Forward Purchaser ~~(or its affiliate)~~ may borrow, offer and sell Forward Hedge Shares through a the Designated Forward Seller to hedge each Forward, and ~~such~~ the Designated Forward Seller shall use commercially reasonable efforts consistent with its normal trading and sales practices to sell Forward Hedge Shares with an aggregate Sales Price of up to the Maximum Amount, less the aggregate Sales Price for any Issuance Shares previously sold under this Agreement, based on and in accordance with such number of Transaction Notices, each specifying that it relates to a “Forward,” as the Company in its sole discretion shall choose to deliver during the Commitment Period and to which ~~such~~ the Designated Forward Purchaser and ~~such~~ Designated Forward Seller have agreed, until the aggregate Sales Price of the Forward Hedge Shares sold under this Agreement, plus the aggregate Sales Prices for any Issuance Shares previously sold under this Agreement, equals the Maximum Amount or this Agreement is otherwise terminated. Subject to the foregoing and the other terms and conditions of this Agreement and the related Master Forward Confirmation, upon (1) the delivery of a Transaction Notice specifying that it relates to a “Forward,” and (2) ~~such~~ the Designated Forward ~~Purchaser’s~~ Purchaser and ~~such~~ Designated Forward Seller’s acceptance of the terms of such Transaction Notice, and unless the sale of the Forward Hedge Shares described therein has been suspended or otherwise terminated in accordance with the terms of this Agreement or the related Master Forward ~~Confirmation~~Confirmation (including without limitation as a result of any event described in clause (a) or (b) of the proviso contained in the definition of Forward Hedge Selling Period), ~~such~~ the Designated Forward Seller will use commercially reasonable efforts consistent with its normal trading and sales practices to sell the Forward Hedge Shares on the NYSE, and otherwise in accordance with the terms of such Transaction Notice. (iii) The ~~applicable~~ Designated Forward Seller will provide written confirmation to the Company and the related Forward Purchaser no later than the opening of the Trading Day next following each Trading Day on which it has made sales of Forward Hedge Shares hereunder setting forth the number of Forward Hedge Shares sold on such Trading Day, the corresponding Sales Price and the Forward Hedge Price payable to the ~~related~~ Designated Forward Purchaser in respect thereof. ~~Each of the Company and the Operating~~ The Company acknowledges and agrees that: (A) there can be no assurance that ~~such~~ the Designated Forward Purchaser (or its affiliate) will be successful in borrowing or that ~~such~~ the Designated Forward Seller will be successful in selling Forward Hedge Shares; (B) ~~such~~ the Designated Forward Seller will incur no liability or obligation to the Company, the ~~Operating Company, the~~ Forward ~~Purchaser~~Purchasers, or any other person if it does not sell Forward Hedge Shares borrowed by ~~such~~ the Designated Forward Purchaser (or its affiliate) for any reason other than a failure by ~~such~~ the Designated Forward Seller to use commercially reasonable efforts consistent with its normal trading and sales practices to sell such Forward Hedge Shares as required under this Section 3 and (C) ~~such~~ the Designated Forward Purchaser ~~is not incurring any~~ will incur no liability or obligation to the Company, the ~~Operating Company~~ Designated Forward Seller, or any other person ~~under this Agreement~~if it does not borrow Forward Hedge Shares for any reason other than a failure by the Designated Forward Purchaser to use commercially reasonable efforts consistent with its normal trading and sales practices to borrow such Forward Hedge Shares. In acting hereunder, ~~such~~ the Designated Forward Seller will be acting as agent for ~~such~~ the Designated Forward Purchaser and not as principal. (iv) No later than the opening of the Trading Day next following the last Trading Day of each Forward Hedge Selling Period (or, if earlier, the date on which any Forward Hedge Selling Period is suspended or terminated pursuant to Section 3(h)), the ~~applicable~~ Designated Forward Purchaser shall execute and deliver to the Company a “Supplemental ~~Confirmation~~ Confirmation” in respect of the Forward for such Forward Hedge Selling Period, which “Supplemental Confirmation” shall set forth the “Trade Date” for such Forward (which shall, subject to the terms of the related Master Forward Confirmation, be the last Trading Day of such Forward Hedge Selling Period), the “Effective Date” for such Forward (which shall, subject to the terms of the related Master Forward Confirmation, be the date one “Settlement ~~Cycle~~ Cycle” (as such term is defined in the related Master Forward Confirmation) immediately following the last Trading Day of such Forward Hedge Selling Period), the initial “Number of Shares” for such Forward (which shall be the Actual Sold Forward Amount for such Forward Hedge Selling Period), the “Maturity Date” for such Forward (which shall, subject to the terms of the related Master Forward Confirmation, be the date that follows the last Trading Day of such Forward Hedge Selling Period by the number of days or months set forth opposite the caption “Term” in the Transaction Notice for such Forward), the “Initial Forward Price” for such Forward, the “Spread” for such Forward, the “Volume-Weighted Hedge Price” for such Forward, the “Threshold Price” for such Forward, the “Initial Stock Loan Rate” for such Forward, the “Maximum Stock Loan ~~Rate~~ Rate” for such Forward, the “Forward Price Reduction Dates” for such Forward (which shall be each of the dates set forth below the caption “Forward Price Reduction Dates” in the Transaction Notice for such Forward) and the “Forward Price Reduction Amounts” corresponding to such Forward Price Reduction Dates (which shall be each amount set forth opposite each “Forward Price Reduction Date” and below the caption “Forward Price Reduction Amounts” in the Transaction Notice for such Forward) and the “Regular Dividend Amounts” for such Forward (which shall be each of the amount(s) set forth below the caption “Regular Dividend Amounts” in the Transaction Notice for such Forward). (v) Notwithstanding anything herein to the contrary, the ~~applicable~~ Designated Forward Seller’s obligation to use commercially reasonable efforts consistent with its normal trading and sales practices to sell such portion of the Forward Hedge Shares for any Forward hereunder shall be subject in all respects to the related Master Forward Confirmation. (vi) The Shares may be offered and sold by any method permitted by law, including by means of ordinary brokers’ transactions on the NYSE at the market prices, in block transactions, or as otherwise agreed ~~to among~~ with the ~~relevant parties~~Designated Sales Agent, or by means of any other existing trading market for the Common Stock or to or through a market marker other than on an exchange. (vii) Upon the terms and subject to the conditions set forth herein, on any Trading Day as provided in Section ~~3(c)(ii~~(c)(ii) hereof during the Commitment Period on which (A) the conditions set forth in paragraphs (a) and (b) of Section 6 have been satisfied and (B) no event described in clause (a) or clause (b) of the proviso contained in the definition of Forward Hedge Selling Period shall have occurred, the Company may exercise an Issuance by the delivery of a Transaction Notice specifying that it relates to an “Issuance,” executed by the Chief Executive Officer, the Chief Financial Officer, the Treasurer, the ~~President, the Corporate~~ Secretary or any Vice President of the Company (or such other authorized ~~officers)~~ officers of the ~~Company or the Operating~~ Company as may be acceptable to the ~~applicable~~ Designated Sales ~~Agent~~Agent and the Designated Forward Seller), to ~~such~~ the Designated Sales Agent. The number of Issuance Shares that a the Designated Sales Agent shall use commercially reasonable efforts consistent with its normal trading and sales practices to sell pursuant to such Issuance shall have an aggregate Sales Price equal to the Issuance Amount. Each Issuance will be settled on the applicable Settlement Date following the Issuance Date. (viii) Upon the terms and subject to the conditions set forth herein, on any Trading Day as provided in Section ~~3(c)(ii~~(c)(ii) during the Commitment Period on which the conditions set forth in paragraphs (a) and (b) of Section 6 have been ~~satisfied and provided that the Company shall have executed a Master Forward Confirmation with the applicable Forward Purchaser~~satisfied, the Company may exercise its right to call for a Forward by the delivery of a Transaction Notice specifying that it relates to a “Forward,” executed by the Chief Executive Officer, the Chief Financial Officer, the Treasurer, the ~~President, the Corporate~~ Secretary or any Vice President of the Company (or such other authorized ~~officers)~~ officers of the ~~Company or the Operating~~ Company as may be acceptable to the ~~applicable~~ Designated Sales Agent and the Designated Forward Seller), to the Designated Forward Seller and the ~~related Forward Purchaser), to such Forward Seller and such~~ Designated Forward Purchaser. The number of Forward Hedge Shares that ~~such~~ the Designated Forward Seller shall use commercially reasonable efforts consistent with its normal trading and sales practices to sell pursuant to such Forward shall have an aggregate Sales Price equal to the Forward Hedge Amount. Each sale of Forward Hedge Shares will be settled as between ~~such~~ the Designated Forward Seller and ~~such~~ the Designated Forward Purchaser on each applicable Forward Hedge Settlement Date following the relevant Forward Date. (b) The effectiveness of this Agreement (the “Closing”) shall be deemed to take place concurrently with the execution and delivery of this Agreement by the parties hereto and the completion of the closing transactions set forth in the immediately following sentence. At the Closing, the following closing transactions shall take place, each of which shall be deemed to occur simultaneously with the Closing: (i) each of the Company and the Operating Company shall deliver to the Sales Agents, the Forward Sellers and the Forward Purchasers a certificate executed by any two of its following representatives: the Chief Executive Officer, the Chief Financial Officer, the Treasurer, the President, the Corporate Secretary or any Vice President (or such other authorized officers) of the Company or the Operating Company as may be acceptable to the Sales Agents, the Forward Sellers and the Forward Purchasers), signing in such capacity, dated the date of the Closing, certifying that attached thereto are true and complete copies of the resolutions duly adopted by the board of directors of the Company and the Operating Company, as applicable, authorizing the execution and delivery of this Agreement, each Forward Contract and the consummation of the transactions contemplated hereby and thereby, which authorization shall be in full force and effect on and as of the date of such certificate; (ii) each of the Company and the Operating Company shall deliver to the Sales Agents, the Forward Sellers and the Forward Purchasers a certificate executed by any two of its following representatives: the Chief Executive Officer, the Chief Financial Officer, the Treasurer, the President, the Corporate Secretary or any Vice President (or such other authorized officers) of the Company or the Operating Company as may be acceptable to the Sales Agents, the Forward Sellers and the Forward Purchasers), signing in such capacity, dated the date of the Closing, as to the matters set forth in Sections 6(a)(i) and 6(e); (iii) ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Company and the Operating Company (“Company Counsel”), or other counsel satisfactory to the Sales Agents, the Forward Sellers and the Forward Purchasers, shall deliver to the Sales Agents, the Forward Sellers and the Forward Purchasers a written opinion, dated the date of the Closing, and addressed to the Sales Agents, the Forward Sellers and the Forward Purchasers, in form and substance satisfactory to the Sales Agents, the Forward Sellers and the Forward Purchasers, of the same tenor as the opinions referred to in Section 6(c); (iv) ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsel to the Sales Agents, the Forward Sellers and the Forward Purchasers, shall deliver to the Sales Agents, the Forward Sellers and the Forward Purchasers a written opinion, dated the date of the Closing, and addressed to the Sales Agents, the Forward Sellers and the Forward Purchasers, in form and substance satisfactory to the Sales Agents, the Forward Sellers and the Forward Purchasers; (v) ▇▇▇▇▇ & ▇▇▇▇▇ shall deliver to the Sales Agents and the Forward Sellers a letter, dated the Closing Date, in form and substance satisfactory to the Sales Agents and the Forward Sellers; and (vi) the Company and the Operating Company, jointly and severally, without duplication, shall pay the expenses set forth in Sections 5(d), (e) and (i) by wire transfer to the account designated by the applicable Sales Agent in writing prior to the Closing. (i) On any Trading Day during the Commitment Period, the Company may deliver a Transaction Notice to a Sales Agent (in the case of an Issuance) or a Forward Seller and a Forward Purchaser (in the case of a Forward), subject to the satisfaction of the conditions set forth in Section 6; provided, however, that (1) the Issuance Amount or Forward Hedge Amount, as the case may be, for each Transaction as designated by the Company in the applicable Transaction Notice shall in no event exceed $100,000,000 for any Issuance or Forward, as the case may be, without the prior written consent of such Agent or such Forward Seller, as applicable, which may be withheld in such Sales Agent’s or such Forward Seller’s sole discretion and (2) notwithstanding anything in this Agreement or the related Master Forward Confirmation to the contrary, none of such Forward Purchaser, such Sales Agent or such Forward Seller shall have any further obligations with respect to any Transaction Notice if and to the extent the aggregate Sales Price of the Shares sold pursuant thereto, together with the aggregate Sales Price of the Shares previously sold under this Agreement, shall exceed the Maximum Amount. The Company shall have the right, in its sole discretion, to amend at any time and from time to time any Transaction Notice subject to compliance with the limitations set forth in this Agreement; provided, however, that (i) the Company may not amend the Issuance Amount or Forward He

Appears in 1 contract

Sources: Equity Distribution Agreement (Welltower Inc.)

Issuances and Forwards. (i) Upon the terms and subject to the conditions of this Agreement, the Company may issue Issuance Shares through a the Designated Sales Agent, and ~~such~~ the Designated Sales Agent shall use commercially reasonable efforts consistent with its normal trading and sales practices to sell Issuance Shares, with an aggregate Sales Price of up to the Maximum Amount, less the aggregate Sales Price for any Forward Hedge Shares previously sold under this Agreement, based on and in accordance with such number of Transaction Notices, each specifying that it relates to an “Issuance,” as the Company in its sole discretion shall choose to deliver during the Commitment Period until the aggregate Sales Price of the Issuance Shares sold under this Agreement, plus the aggregate Sales Prices for any Forward Hedge Shares previously sold under this Agreement, equals the Maximum Amount, or this Agreement is otherwise terminated. Subject to the foregoing and the other terms and conditions of this Agreement, upon (1) the delivery of a Transaction Notice specifying that it relates to an “Issuance,” and (2) ~~such~~ the Designated Sales Agent’s acceptance of the terms of such Transaction Notice, and unless the sale of the Issuance Shares described therein has been suspended, cancelled or otherwise terminated in accordance with the terms of this Agreement, ~~such~~ the Designated Sales Agent will use commercially reasonable efforts consistent with its normal trading and sales practices to sell such Issuance Shares up to the amount specified on the NYSE, and otherwise in accordance with the terms of such Transaction Notice. ~~Such~~ The Designated Sales Agent will use commercially reasonable efforts consistent with its normal trading and sales practices to provide written confirmation to the Company not later than 6:00 p.m. Eastern Time on the Issuance Date, and will in no event provide such confirmation later than the opening of the Trading Day next following the Trading Day on which it has made sales of Issuance Shares hereunder. Such written confirmation will set forth ~~under~~ the portion of the Actual Sold Issuance Amount for such Trading Day, the corresponding Sales Price and the Issuance Price payable to the Company in respect thereof. ~~Each of the Company and the Operating~~ The Company acknowledges and agrees that (i) there can be no assurance that the ~~such~~ Designated Sales Agent will be successful in selling Issuance Shares, and (ii) ~~such~~ the Designated Sales Agent will incur no liability or obligation to the ~~Company, the Operating~~ Company or any other person if it does not sell Issuance Shares for any reason other than a failure by such Designated Sales Agent to use commercially reasonable efforts consistent with its normal trading and sales practices to sell such Issuance Shares as required under this Section 3. (ii) In addition, upon the terms and subject to the conditions of this Agreement and the related Master Forward Confirmation, a the Designated Forward Purchaser ~~(or its affiliate)~~ may borrow, offer and sell Forward Hedge Shares through a the Designated Forward Seller to hedge each Forward, and ~~such~~ the Designated Forward Seller shall use commercially reasonable efforts consistent with its normal trading and sales practices to sell Forward Hedge Shares with an aggregate Sales Price of up to the Maximum Amount, less the aggregate Sales Price for any Issuance Shares previously sold under this Agreement, based on and in accordance with such number of Transaction Notices, each specifying that it relates to a “Forward,” as the Company in its sole discretion shall choose to deliver during the Commitment Period and to which ~~such~~ the Designated Forward Purchaser and ~~such~~ Designated Forward Seller have agreed, until the aggregate Sales Price of the Forward Hedge Shares sold under this Agreement, plus the aggregate Sales Prices for any Issuance Shares previously sold under this Agreement, equals the Maximum Amount or this Agreement is otherwise terminated. Subject to the foregoing and the other terms and conditions of this Agreement and the related Master Forward Confirmation, upon (1) the delivery of a Transaction Notice specifying that it relates to a “Forward,” and (2) ~~such~~ the Designated Forward ~~Purchaser’s~~ Purchaser and ~~such~~ Designated Forward Seller’s acceptance of the terms of such Transaction Notice, and unless the sale of the Forward Hedge Shares described therein has been suspended or otherwise terminated in accordance with the terms of this Agreement or the related Master Forward ~~Confirmation~~Confirmation (including without limitation as a result of any event described in clause (a) or (b) of the proviso contained in the definition of Forward Hedge Selling Period), ~~such~~ the Designated Forward Seller will use commercially reasonable efforts consistent with its normal trading and sales practices to sell the Forward Hedge Shares on the NYSE, and otherwise in accordance with the terms of such Transaction Notice. (iii) The ~~applicable~~ Designated Forward Seller will provide written confirmation to the Company and the related Forward Purchaser no later than the opening of the Trading Day next following each Trading Day on which it has made sales of Forward Hedge Shares hereunder setting forth the number of Forward Hedge Shares sold on such Trading Day, the corresponding Sales Price and the Forward Hedge Price payable to the ~~related~~ Designated Forward Purchaser in respect thereof. ~~Each of the Company and the Operating~~ The Company acknowledges and agrees that: (A) there can be no assurance that ~~such~~ the Designated Forward Purchaser (or its affiliate) will be successful in borrowing or that ~~such~~ the Designated Forward Seller will be successful in selling Forward Hedge Shares; (B) ~~such~~ the Designated Forward Seller will incur no liability or obligation to the Company, the ~~Operating Company, the~~ Forward ~~Purchaser~~Purchasers, or any other person if it does not sell Forward Hedge Shares borrowed by ~~such~~ the Designated Forward Purchaser (or its affiliate) for any reason other than a failure by ~~such~~ the Designated Forward Seller to use commercially reasonable efforts consistent with its normal trading and sales practices to sell such Forward Hedge Shares as required under this Section 3 and (C) ~~such~~ the Designated Forward Purchaser ~~is not incurring any~~ will incur no liability or obligation to the Company, the ~~Operating Company~~ Designated Forward Seller, or any other person ~~under this Agreement~~if it does not borrow Forward Hedge Shares for any reason other than a failure by the Designated Forward Purchaser to use commercially reasonable efforts consistent with its normal trading and sales practices to borrow such Forward Hedge Shares. In acting hereunder, ~~such~~ the Designated Forward Seller will be acting as agent for ~~such~~ the Designated Forward Purchaser and not as principal. (iv) No later than the opening of the Trading Day next following the last Trading Day of each Forward Hedge Selling Period (or, if earlier, the date on which any Forward Hedge Selling Period is suspended or terminated pursuant to Section 3(h)), the ~~applicable~~ Designated Forward Purchaser shall execute and deliver to the Company a “Supplemental ~~Confirmation~~ Confirmation” in respect of the Forward for such Forward Hedge Selling Period, which “Supplemental Confirmation” shall set forth the “Trade Date” for such Forward (which shall, subject to the terms of the related Master Forward Confirmation, be the last Trading Day of such Forward Hedge Selling Period), the “Effective Date” for such Forward (which shall, subject to the terms of the related Master Forward Confirmation, be the date one “Settlement ~~Cycle~~ Cycle” (as such term is defined in the related Master Forward Confirmation) immediately following the last Trading Day of such Forward Hedge Selling Period), the initial “Number of Shares” for such Forward (which shall be the Actual Sold Forward Amount for such Forward Hedge Selling Period), the “Maturity Date” for such Forward (which shall, subject to the terms of the related Master Forward Confirmation, be the date that follows the last Trading Day of such Forward Hedge Selling Period by the number of days or months set forth opposite the caption “Term” in the Transaction Notice for such Forward), the “Initial Forward Price” for such Forward, the “Spread” for such Forward, the “Volume-Weighted Hedge Price” for such Forward, the “Threshold Price” for such Forward, the “Initial Stock Loan Rate” for such Forward, the “Maximum Stock Loan ~~Rate~~ Rate” for such Forward, the “Forward Price Reduction Dates” for such Forward (which shall be each of the dates set forth below the caption “Forward Price Reduction Dates” in the Transaction Notice for such Forward) and the “Forward Price Reduction Amounts” corresponding to such Forward Price Reduction Dates (which shall be each amount set forth opposite each “Forward Price Reduction Date” and below the caption “Forward Price Reduction Amounts” in the Transaction Notice for such Forward) and the “Regular Dividend Amounts” for such Forward (which shall be each of the amount(s) set forth below the caption “Regular Dividend Amounts” in the Transaction Notice for such Forward). In addition, the parties hereto agree that, each and every “Supplemental Confirmation” executed on or after the date hereof shall be deemed to contain the following provision: “For the purposes of the Transaction, all references in this Supplemental Confirmation and in the Master Confirmation to the Equity Distribution Agreement shall be interpreted as references to such agreement as it has been amended, restated and supplemented to date.” (v) Notwithstanding anything herein to the contrary, the ~~applicable~~ Designated Forward Seller’s obligation to use commercially reasonable efforts consistent with its normal trading and sales practices to sell such portion of the Forward Hedge Shares for any Forward hereunder shall be subject in all respects to the related Master Forward Confirmation. (vi) The Shares may be offered and sold by any method permitted by law, including by means of ordinary brokers’ transactions on the NYSE at the market prices, in block transactions, or as otherwise agreed ~~to among~~ with the ~~relevant parties~~Designated Sales Agent, or by means of any other existing trading market for the Common Stock or to or through a market marker other than on an exchange. (vii) Upon the terms and subject to the conditions set forth herein, on any Trading Day as provided in Section ~~3(c)(ii~~(c)(ii) hereof during the Commitment Period on which (A) the conditions set forth in paragraphs (a) and (b) of Section 6 have been satisfied and (B) no event described in clause (a) or clause (b) of the proviso contained in the definition of Forward Hedge Selling Period shall have occurred, the Company may exercise an Issuance by the delivery of a Transaction Notice specifying that it relates to an “Issuance,” executed by the Chief Executive Officer, the Chief Financial Officer, the Treasurer, the ~~President, the Corporate~~ Secretary or any Vice President of the Company (or such other authorized ~~officers)~~ officers of the ~~Company or the Operating~~ Company as may be acceptable to the ~~applicable~~ Designated Sales ~~Agent~~Agent and the Designated Forward Seller), to ~~such~~ the Designated Sales Agent. The number of Issuance Shares that a the Designated Sales Agent shall use commercially reasonable efforts consistent with its normal trading and sales practices to sell pursuant to such Issuance shall have an aggregate Sales Price equal to the Issuance Amount. Each Issuance will be settled on the applicable Settlement Date following the Issuance Date. (viii) Upon the terms and subject to the conditions set forth herein, on any Trading Day as provided in Section ~~3(c)(ii~~(c)(ii) during the Commitment Period on which the conditions set forth in paragraphs (a) and (b) of Section 6 have been ~~satisfied and provided that the Company shall have executed a Master Forward Confirmation with the applicable Forward Purchaser~~satisfied, the Company may exercise its right to call for a Forward by the delivery of a Transaction Notice specifying that it relates to a “Forward,” executed by the Chief Executive Officer, the Chief Financial Officer, the Treasurer, the ~~President, the Corporate~~ Secretary or any Vice President of the Company (or such other authorized ~~officers)~~ officers of the ~~Company or the Operating~~ Company as may be acceptable to the ~~applicable~~ Designated Sales Agent and the Designated Forward Seller), to the Designated Forward Seller and the ~~related Forward Purchaser), to such Forward Seller and such~~ Designated Forward Purchaser. The number of Forward Hedge Shares that ~~such~~ the Designated Forward Seller shall use commercially reasonable efforts consistent with its normal trading and sales practices to sell pursuant to such Forward shall have an aggregate Sales Price equal to the Forward Hedge Amount. Each sale of Forward Hedge Shares will be settled as between ~~such~~ the Designated Forward Seller and ~~such~~ the Designated Forward Purchaser on each applicable Forward Hedge Settlement Date following the relevant Forward Date. (b) The effectiveness of this Agreement (the “Closing”) shall be deemed to take place concurrently with the execution and delivery of this Agreement by the parties hereto and the completion of the closing transactions set forth in the immediately following sentence. At the Closing, the following closing transactions shall take place, each of which shall be deemed to occur simultaneously with the Closing: (i) ~~each of~~ the ~~Company and the Operating~~ Company shall deliver to the Sales Agents, the Forward Sellers and the Forward Purchasers a certificate executed by any two of ~~its following representatives~~the following: the Chief Executive Officer, the Chief Financial Officer, the Treasurer, the ~~President, the Corporate~~ Secretary or any Vice President of the Company (or such other authorized ~~officers)~~ officers of the ~~Company or the Operating~~ Company as may be acceptable to the Sales Agents, the Forward Sellers and the Forward Purchasers), signing in such capacity, dated the date of the Closing, certifying that attached thereto are true and complete copies of the resolutions duly adopted by the ~~board~~ Board of ~~directors~~ Directors of the Company ~~and the Operating Company, as applicable,~~ authorizing the execution and delivery of this Agreement, each Master Forward ~~Contract~~ Confirmation and the consummation of the transactions contemplated hereby and thereby, which authorization shall be in full force and effect on and as of the date of such ~~certificate~~certificate and; (ii) ~~each of~~ the ~~Company and the Operating~~ Company shall deliver to the Sales Agents, the Forward Sellers and the Forward Purchasers a certificate executed by any two of ~~its following representatives~~the following: the Chief Executive Officer, the Chief Financial Officer, the Treasurer, the ~~President, the Corporate~~ Secretary or any Vice President of the Company (or such other authorized ~~officers)~~ officers of the ~~Company or the Operating~~ Company as may be acceptable to the Sales Agents, the Forward Sellers and the Forward Purchasers), signing in such capacity, dated the date of the Closing, confirming that the representations and warranties of the Company contained in this Agreement and each Master Forward Confirmation are true and correct and that the Company has performed all of its obligations hereunder to be performed on or prior to the Closing Date and as to the matters set forth in ~~Sections~~ Section 6(a)(i) ~~and 6(e)~~hereof; (iii) ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the ~~Company and the Operating~~ Company (“Company Counsel”), or other counsel satisfactory to the Sales Agents, the Forward Sellers and the Forward Purchasers, shall deliver to the Sales Agents, the Forward Sellers and the Forward Purchasers a written opinion, dated the date of the Closing, and addressed to the Sales Agents, the Forward Sellers and the Forward Purchasers, in form and substance satisfactory to the Sales Agents, the Forward Sellers and the Forward Purchasers, of the same tenor as the opinions referred to in Section 6(c)) of this Agreement; (iv) ~~▇▇▇▇▇▇ ▇▇▇▇▇▇~~ Sidley Austin LLP, counsel to the Sales Agents, the Forward Sellers and the Forward Purchasers, shall deliver to the Sales Agents, the Forward Sellers and the Forward Purchasers a written opinion, dated the date of the Closing, and addressed to the Sales Agents, the Forward Sellers and the Forward Purchasers, in form and substance satisfactory to the Sales Agents, the Forward Sellers and the Forward Purchasers; (v) ~~▇▇▇▇▇~~ Ernst & ~~▇▇▇▇▇~~ Young shall deliver to the Sales ~~Agents~~ Agents, the Forward Sellers and the Forward ~~Sellers~~ Purchasers a letter, dated the Closing Date, in form and substance satisfactory to the Sales ~~Agents~~ Agents, the Forward Sellers and the Forward ~~Sellers~~Purchasers; and (vi) the Company ~~and the Operating Company, jointly and severally, without duplication,~~ shall pay the expenses set forth in ~~Sections~~ Section 5(d), (e) and (i) hereof by wire transfer to the account designated by ~~the applicable~~ Designated Sales Agent in writing prior to the Closing. (i) On any Trading Day during the Commitment Period, the Company may deliver a Transaction Notice to a the Designated Sales Agent (in the case of an Issuance) or a the Designated Forward Seller and a the Designated Forward Purchaser (in the case of a Forward), subject to the satisfaction of the conditions set forth in Section 6; provided, however, that (1) the Issuance Amount or Forward Hedge Amount, as the case may be, for each Transaction as designated by the Company in the applicable Transaction Notice shall in no event exceed $100,000,000 for any Issuance or Forward, as the case may be, without the prior written consent of such Agent or such Forward Seller, as applicable, which may be withheld in such Sales Agent’s or such Forward Seller’s sole discretion and (2) notwithstanding anything in this Agreement or the related Master Forward Confirmation to the contrary, none of such Forward Purchaser, such Sales Agent or such Forward Seller shall have any further obligations with respect to any Transaction Notice if and to the extent the aggregate Sales Price of the Shares sold pursuant thereto, together with the aggregate Sales Price of the Shares previously sold under this Agreement, shall exceed the Maximum Amount. The Company shall have the right, in its sole discretion, to amend at any time and from time to time any Transaction Notice subject to compliance with the limitations set forth in this Agreement; provided, however, that (i) the Company may not amend the Issuance Amount or Forward Hee

Appears in 1 contract

Sources: Equity Distribution Agreement (Welltower Inc.)

Issuances and Forwards. (i) Upon the terms and subject to the conditions of this Agreement, the Company may issue Issuance Shares through a Sales Agent, and such Sales Agent shall use commercially reasonable efforts consistent with its normal trading and sales practices to sell Issuance Shares, with an aggregate Sales Price of up to the Maximum Amount, less the aggregate Sales Price for any Forward Hedge Shares previously sold under this Agreement, based on and in accordance with such number of Transaction Notices, each specifying that it relates to an “Issuance,” as the Company in its sole discretion shall choose to deliver during the Commitment Period until the aggregate Sales Price of the Issuance Shares sold under this Agreement, plus the aggregate Sales Prices for any Forward Hedge Shares previously sold under this Agreement, equals the Maximum Amount, or this Agreement is otherwise terminated. Subject to the foregoing and the other terms and conditions of this Agreement, upon (1) the delivery of a Transaction Notice specifying that it relates to an “Issuance,” and (2) such Sales Agent’s acceptance of the terms of such Transaction Notice, and unless the sale of the Issuance Shares described therein has been suspended, cancelled or otherwise terminated in accordance with the terms of this Agreement, such Sales Agent will use commercially reasonable efforts consistent with its normal trading and sales practices to sell such Issuance Shares up to the amount specified on the NYSE, and otherwise in accordance with the terms of such Transaction Notice. Such Sales Agent will use commercially reasonable efforts consistent with its normal trading and sales practices to provide written confirmation to the Company not later than 6:00 p.m. Eastern Time on the Issuance Date, and will in no event provide such confirmation later than the opening of the Trading Day next following the Trading Day on which it has made sales of Issuance Shares hereunder. Such written confirmation will set forth under the Actual Sold Issuance Amount for such Trading Day, the corresponding Sales Price and the Issuance Price payable to the Company in respect thereof. Each of the Company and the Operating Company acknowledges and agrees that (i) there can be no assurance that the such Sales Agent will be successful in selling Issuance Shares, and (ii) such Sales Agent will incur no liability or obligation to the Company, the Operating Company or any other person if it does not sell Issuance Shares for any reason other than a failure by such Sales Agent to use commercially reasonable efforts consistent with its normal trading and sales practices to sell such Issuance Shares as required under this Section 3. (ii) In addition, upon the terms and subject to the conditions of this Agreement and the related Master Forward Confirmation, a Forward Purchaser (or its affiliate) may borrow, offer and sell Forward Hedge Shares through a Forward Seller to hedge each Forward, and such Forward Seller shall use commercially reasonable efforts consistent with its normal trading and sales practices to sell Forward Hedge Shares with an aggregate Sales Price of up to the Maximum Amount, less the aggregate Sales Price for any Issuance Shares previously sold under this Agreement, based on and in accordance with such number of Transaction Notices, each specifying that it relates to a “Forward,” as the Company in its sole discretion shall choose to deliver during the Commitment Period and to which such Forward Purchaser and such Forward Seller have agreed, until the aggregate Sales Price of the Forward Hedge Shares sold under this Agreement, plus the aggregate Sales Prices for any Issuance Shares previously sold under this Agreement, equals the Maximum Amount or this Agreement is otherwise terminated. Subject to the foregoing and the other terms and conditions of this Agreement and the related Master Forward Confirmation, upon (1) the delivery of a Transaction Notice specifying that it relates to a “Forward,” and (2) such Forward Purchaser’s and such Forward Seller’s acceptance of the terms of such Transaction Notice, and unless the sale of the Forward Hedge Shares described therein has been suspended or otherwise terminated in accordance with the terms of this Agreement or the related Master Forward Confirmation, such Forward Seller will use commercially reasonable efforts consistent with its normal trading and sales practices to sell the Forward Hedge Shares on the NYSE, and otherwise in accordance with the terms of such Transaction Notice. (iii) The applicable Forward Seller will provide written confirmation to the Company and the related Forward Purchaser no later than the opening of the Trading Day next following each Trading Day on which it has made sales of Forward Hedge Shares hereunder setting forth the number of Forward Hedge Shares sold on such Trading Day, the corresponding Sales Price and the Forward Hedge Price payable to the related Forward Purchaser in respect thereof. Each of the Company and the Operating Company acknowledges and agrees that: (A) there can be no assurance that such Forward Purchaser (or its affiliate) will be successful in borrowing or that such Forward Seller will be successful in selling Forward Hedge Shares; (B) such Forward Seller will incur no liability or obligation to the Company, the Operating Company, the Forward Purchaser, or any other person if it does not sell Forward Hedge Shares borrowed by such Forward Purchaser (or its affiliate) for any reason other than a failure by such Forward Seller to use commercially reasonable efforts consistent with its normal trading and sales practices to sell such Forward Hedge Shares as required under this Section 3 and (C) such Forward Purchaser is not incurring any liability or obligation to the Company, the Operating Company or any other person under this Agreement. In acting hereunder, such Forward Seller will be acting as agent for such Forward Purchaser and not as principal. (iv) No later than the opening of the Trading Day next following the last Trading Day of each Forward Hedge Selling Period (or, if earlier, the date on which any Forward Hedge Selling Period is suspended or terminated pursuant to Section 3(h)), the applicable Forward Purchaser shall deliver to the Company a Supplemental Confirmation in respect of the Forward for such Forward Hedge Selling Period, which shall set forth the “Trade Date” for such Forward (which shall, subject to the terms of the related Master Forward Confirmation, be the last Trading Day of such Forward Hedge Selling Period), the “Effective Date” for such Forward (which shall, subject to the terms of the related Master Forward Confirmation, be the date one Settlement Cycle (as such term is defined in the related Master Forward Confirmation) immediately following the last Trading Day of such Forward Hedge Selling Period), the initial “Number of Shares” for such Forward (which shall be the Actual Sold Forward Amount for such Forward Hedge Selling Period), the “Maturity Date” for such Forward (which shall, subject to the terms of the related Master Forward Confirmation, be the date that follows the last Trading Day of such Forward Hedge Selling Period by the number of days or months set forth opposite the caption “Term” in the Transaction Notice for such Forward), the “Initial Forward Price” for such Forward, the “Spread” for such Forward, the “Volume-Weighted Hedge Price” for such Forward, the “Threshold Price” for such Forward, the “Initial Stock Loan Rate” for such Forward, the Maximum Stock Loan Rate for such Forward, the “Forward Price Reduction Dates” for such Forward (which shall be each of the dates set forth below the caption “Forward Price Reduction Dates” in the Transaction Notice for such Forward) and the “Forward Price Reduction Amounts” corresponding to such Forward Price Reduction Dates (which shall be each amount set forth opposite each “Forward Price Reduction Date” and below the caption “Forward Price Reduction Amounts” in the Transaction Notice for such Forward) and the “Regular Dividend Amounts” for such Forward (which shall be each of the amount(s) set forth below the caption “Regular Dividend Amounts” in the Transaction Notice for such Forward). (v) Notwithstanding anything herein to the contrary, the applicable Forward Seller’s obligation to use commercially reasonable efforts consistent with its normal trading and sales practices to sell such portion of the Forward Hedge Shares for any Forward hereunder shall be subject in all respects to the related Master Forward Confirmation. (vi) The Shares may be offered and sold by any method permitted by law, including by means of ordinary brokers’ transactions on the NYSE at the market prices, in block transactions, or as otherwise agreed to among the relevant parties, or by means of any other existing trading market for the Common Stock or to or through a market marker other than on an exchange. (vii) Upon the terms and subject to the conditions set forth herein, on any Trading Day as provided in Section 3(c)(ii) during the Commitment Period on which (A) the conditions set forth in paragraphs (a) and (b) of Section 6 have been satisfied and (B) no event described in clause (a) or clause (b) of the proviso contained in the definition of Forward Hedge Selling Period shall have occurred, the Company may exercise an Issuance by the delivery of a Transaction Notice specifying that it relates to an “Issuance,” executed by the Chief Executive Officer, the Chief Financial Officer, the Treasurer, the President, the Corporate Secretary or any Vice President (or such other authorized officers) of the Company or the Operating Company as may be acceptable to the applicable Sales Agent), to such Sales Agent. The number of Issuance Shares that a Sales Agent shall use commercially reasonable efforts consistent with its normal trading and sales practices to sell pursuant to such Issuance shall have an aggregate Sales Price equal to the Issuance Amount. Each Issuance will be settled on the applicable Settlement Date following the Issuance Date. (viii) Upon the terms and subject to the conditions set forth herein, on any Trading Day as provided in Section 3(c)(ii) during the Commitment Period on which the conditions set forth in paragraphs (a) and (b) of Section 6 have been satisfied and provided that the Company shall have executed a Master Forward Confirmation with the applicable Forward Purchaser, the Company may exercise its right to call for a Forward by the delivery of a Transaction Notice specifying that it relates to a “Forward,” executed by the Chief Executive Officer, the Chief Financial Officer, the Treasurer, the President, the Corporate Secretary or any Vice President (or such other authorized officers) of the Company or the Operating Company as may be acceptable to the applicable Forward Seller and the related Forward Purchaser), to such Forward Seller and such Forward Purchaser. The number of Forward Hedge Shares that such Forward Seller shall use commercially reasonable efforts consistent with its normal trading and sales practices to sell pursuant to such Forward shall have an aggregate Sales Price equal to the Forward Hedge Amount. Each sale of Forward Hedge Shares will be settled as between such Forward Seller and such Forward Purchaser on each applicable Forward Hedge Settlement Date following the relevant Forward Date. (b) The effectiveness of this Agreement (the “Closing”) shall be deemed to take place concurrently with the execution and delivery of this Agreement by the parties hereto and the completion of the closing transactions set forth in the immediately following sentence. At the Closing, the following closing transactions shall take place, each of which shall be deemed to occur simultaneously with the Closing: (i) each of the Company and the Operating Company shall deliver to the Sales Agents, the Forward Sellers and the Forward Purchasers a certificate executed by any two of its following representatives: the Chief Executive Officer, the Chief Financial Officer, the Treasurer, the President, the Corporate Secretary or any Vice President (or such other authorized officers) of the Company or the Operating Company as may be acceptable to the Sales Agents, the Forward Sellers and the Forward Purchasers), signing in such capacity, dated the date of the Closing, certifying that attached thereto are true and complete copies of the resolutions duly adopted by the board of directors of the Company and the Operating Company, as applicable, authorizing the execution and delivery of this Agreement, each Forward Contract and the consummation of the transactions contemplated hereby and thereby, which authorization shall be in full force and effect on and as of the date of such certificate; (ii) each of the Company and the Operating Company shall deliver to the Sales Agents, the Forward Sellers and the Forward Purchasers a certificate executed by any two of its following representatives: the Chief Executive Officer, the Chief Financial Officer, the Treasurer, the President, the Corporate Secretary or any Vice President (or such other authorized officers) of the Company or the Operating Company as may be acceptable to the Sales Agents, the Forward Sellers and the Forward Purchasers), signing in such capacity, dated the date of the Closing, as to the matters set forth in Sections 6(a)(i) and 6(e); (iii) ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Company and the Operating Company (“Company Counsel”), or other counsel satisfactory to the Sales Agents, the Forward Sellers and the Forward Purchasers, shall deliver to the Sales Agents, the Forward Sellers and the Forward Purchasers a written opinion, dated the date of the Closing, and addressed to the Sales Agents, the Forward Sellers and the Forward Purchasers, in form and substance satisfactory to the Sales Agents, the Forward Sellers and the Forward Purchasers, of the same tenor as the opinions referred to in Section 6(c); (iv) ~~▇▇▇▇▇▇ ▇▇▇▇▇▇~~ Sidley Austin LLP, counsel to the Sales Agents, the Forward Sellers and the Forward Purchasers, shall deliver to the Sales Agents, the Forward Sellers and the Forward Purchasers a written opinion, dated the date of the Closing, and addressed to the Sales Agents, the Forward Sellers and the Forward Purchasers, in form and substance satisfactory to the Sales Agents, the Forward Sellers and the Forward Purchasers; (v) ▇▇▇▇▇ & ~~▇▇▇▇▇~~ Young shall deliver to the Sales Agents and the Forward Sellers a letter, dated the Closing Date, in form and substance satisfactory to the Sales Agents and the Forward Sellers; and (vi) the Company and the Operating Company, jointly and severally, without duplication, shall pay the expenses set forth in Sections 5(d), (e) and (i) by wire transfer to the account designated by the applicable Sales Agent in writing prior to the Closing. (i) On any Trading Day during the Commitment Period, the Company may deliver a Transaction Notice to a Sales Agent (in the case of an Issuance) or a Forward Seller and a Forward Purchaser (in the case of a Forward), subject to the satisfaction of the conditions set forth in Section 6; provided, however, that (1) the Issuance Amount or Forward Hedge Amount, as the case may be, for each Transaction as designated by the Company in the applicable Transaction Notice shall in no event exceed $100,000,000 for any Issuance or Forward, as the case may be, without the prior written consent of such Agent or such Forward Seller, as applicable, which may be withheld in such Sales Agent’s or such Forward Seller’s sole discretion and (2) notwithstanding anything in this Agreement or the related Master Forward Confirmation to the contrary, none of such Forward Purchaser, such Sales Agent or such Forward Seller shall have any further obligations with respect to any Transaction Notice if and to the extent the aggregate Sales Price of the Shares sold pursuant thereto, together with the aggregate Sales Price of the Shares previously sold under this Agreement, shall exceed the Maximum Amount. The Company shall have the right, in its sole discretion, to amend at any time and from time to time any Transaction Notice subject to compliance with the limitations set forth in this Agreement; provided, however, that (i) the Company may not amend the Issuance Amount or Forward He

Appears in 1 contract

Sources: Equity Distribution Agreement (Welltower Inc.)

Common use of Issuances and Forwards Clause in Contracts