Issuance and Sale (a) Upon the basis of the representations, warranties and agreements and subject to the terms and conditions set forth herein and provided the Company provides such Agent with any due diligence materials and information reasonably requested by such Agent necessary for such Agent to satisfy its due diligence obligations, on any Exchange Business Day (as defined below) selected by the Company, the Company and such Agent shall enter into an agreement in accordance with Section 2 hereof regarding the number of Shares to be placed by the Agent, as agent, and the manner in which and other terms upon which such placement is to occur (each such transaction being referred to as an “Agency Transaction”). The Company may also offer to sell the Shares directly to an Agent, as principal, in which event such parties shall enter into a separate agreement (each, a “Terms Agreement”) in substantially the form of Exhibit A hereto (with such changes thereto as may be agreed upon by the Company and such Agent to accommodate a transaction involving additional underwriters), relating to such sale in accordance with Section 2(g) hereof (each such transaction being referred to as a “Principal Transaction”). As used herein, (i) the “Term” shall be the period commencing on the date hereof and ending on the earlier of (x) the date on which the aggregate Gross Sales Price of Shares issued and sold pursuant to this Agreement and any Terms Agreements is equal to the Maximum Amount and (y) any termination of this Agreement pursuant to Section 8 hereof, (ii) an “Exchange Business Day” means any day during the Term that is a trading day for the Exchange other than a day on which trading on the Exchange is scheduled to close prior to its regular weekday closing time, and (iii) the “Exchange” means the New York Stock Exchange.
Purchase and Sale Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, the Company agrees to sell to each Underwriter, and each Underwriter agrees, severally and not jointly, to purchase from the Company, at the purchase price set forth in Schedule I hereto the principal amount of the Securities set forth opposite such Underwriter’s name in Schedule II hereto.
Purchase and Sale of Property Seller hereby agrees to sell, and Buyer hereby agrees to acquire, upon the terms and conditions herein stated, that certain portfolio of Properties listed on Schedule 1 attached hereto and more particularly described in Exhibits A-1 to A-16 attached hereto (individually and collectively, the “Real Property”), together with:
(a) All buildings, improvements and other structures presently located on the Real Property (the “Improvements”), provided, however, that “Improvements” shall not include any fixtures or other improvements owned by “Tenants” (as hereinafter defined);
(b) All personal property (excluding cash and software) owned by Seller, if any, located in or on, and used exclusively in connection with the operation of, the Real Property or the Improvements (the “Personal Property”);
(c) Any and all of Seller’s right, title and interest in and to the leases, licenses and occupancy agreements covering all or any portion of the Real Property or Improvements (the “Leases”), including any guaranties thereof and any security deposits thereunder in Seller’s possession at “Closing” (as hereinafter defined); and
(d) Any and all of Seller’s right, title and interest in and to any of the following existing at the Closing (the “Intangibles”): (i) subject to Paragraph 3(a)(v), all assignable contracts and agreements and utility contracts (the “Operating Agreements”) relating to the leasing, operation, maintenance or repair of the Real Property, Improvements or Personal Property; (ii) all assignable warranties and guaranties issued to Seller in connection with the Improvements or the Personal Property; (iii) all assignable permits, licenses, approvals and authorizations issued by any governmental authority in connection with the Real Property;
(iv) all assignable drawings, plans, building permits, surveys and certificates of occupancy relating to the Real Property or the Personal Property, if any; and (v) all assignable trademarks, trade names and websites relating to the Real Property, if any. The Real Property, Improvements, Personal Property, Leases and Intangibles are collectively referred to hereinafter for a specific property as a “Property” and collectively as the “Properties”.
Finance and Sale Issues (i) Until the Discharge of Term Obligations has occurred, if the Company or any other Grantor shall be subject to any Insolvency or Liquidation Proceeding and the Term Collateral Agent shall desire to permit the use of cash collateral constituting TL Priority Collateral on which the Term Collateral Agent or any other creditor has a Lien or to permit the Company or any other Grantor to obtain financing, whether from the Term Secured Parties or any other entity under Section 363 or Section 364 of the Bankruptcy Code or any similar Bankruptcy Law (each, a “DIP Financing”), then the ABL Collateral Agent, on behalf of itself and the ABL Secured Parties and the Notes Collateral Agent, on behalf of itself and the Notes Secured Parties, agree that they will raise no objection to such use of cash collateral constituting TL Priority Collateral or to the fact that such DIP Financing may be granted Liens on the TL Priority Collateral and will not request adequate protection or any other relief in connection therewith (except, as expressly, agreed by the Term Collateral Agent or to the extent permitted by Section 2.5(c)) and, to the extent the Liens on the TL Priority Collateral securing the Term Obligations are subordinated or pari passu with the Liens on the TL Priority Collateral securing such DIP Financing, the ABL Collateral Agent and the Notes Collateral Agent will subordinate their Liens in the TL Priority Collateral to the Liens securing such DIP Financing (and all obligations relating thereto). The ABL Collateral Agent, on behalf of the ABL Secured Parties, and the Notes Collateral Agent, on behalf of itself and the Notes Secured Parties, agree that they will not raise any objection or oppose a sale or other disposition of any TL Priority Collateral free and clear of its Liens (subject to attachment of proceeds with respect to the Second Priority Lien on the TL Priority Collateral in favor of the ABL Collateral Agent and the Third Priority Lien on the TL Priority Collateral in favor of the Notes Collateral Agent in the same order and manner as otherwise set forth herein) or other claims under Section 363 of the Bankruptcy Code if the Term Secured Parties have consented to such sale or disposition of such assets.
(ii) Following the Discharge of Term Obligations and until the Discharge of ABL Obligations has occurred, if the Company or any other Grantor shall be subject to any Insolvency or Liquidation Proceeding and the ABL Collateral Agent shall desire to permit the Company or any other Grantor to obtain a DIP Financing, then the Notes Collateral Agent, on behalf of itself and the Notes Secured Parties, agrees that it will raise no objection to such use of cash collateral constituting TL Priority Collateral or to the fact that such DIP Financing may be granted Liens on the TL Priority Collateral and will not request adequate protection or any other relief in connection therewith (except, as expressly, agreed by the ABL Collateral Agent or to the extent permitted by Section 2.5(c)) and, to the extent the Liens on the TL Priority Collateral securing the ABL Obligations are subordinated or pari passu with the Liens on the TL Priority Collateral securing such DIP Financing, the Notes Collateral Agent will subordinate its Liens in the TL Priority Collateral to the Liens securing such DIP Financing (and all obligations relating thereto). Following the Discharge of Term Obligations, the Notes Collateral Agent, on behalf of the Notes Secured Parties, agrees that it will not raise any objection or oppose a sale or other disposition of any TL Priority Collateral free and clear of its Liens (subject to attachment of proceeds with respect to the Third Priority Lien on the TL Priority Collateral in favor of the Notes Collateral Agent in the same order and manner as otherwise set forth herein) or other claims under Section 363 of the Bankruptcy Code if the ABL Secured Parties have consented to such sale or disposition of such assets.
Purchase and Sale Closing (a) On the basis of the representations, warranties and agreements herein contained and subject to the terms and conditions herein set forth, the Company agrees to cause the Trustee to sell to the Underwriter, and the Underwriter agrees to purchase from the Trustee, at a purchase price of 100% of the face amount thereof, $193,440,000 of Class B Certificates.
(b) Payment of the purchase price for, and delivery of, the Class B Certificates shall be made at the date, time and location or locations specified in Schedule I hereto, or at such other date, time or location or locations as shall be agreed upon by the Company and the Underwriter, or as shall otherwise be provided in Section 7 hereof (such date being herein called the “Closing Date” and such time being herein called the “Closing Time”). Payment shall be made to or upon the order of the Trustee by federal funds wire transfer or transfer of other immediately available funds against delivery to the account of the Underwriter at The Depository Trust Company (“DTC”). Such Class B Certificates shall be registered in the name of Cede & Co. or in such other names, and in such authorized denominations as the Underwriter may request in writing at least two full business days before the Closing Time. The certificates representing such Class B Certificates, which may be in temporary form, will be made available for examination and packaging by the Underwriter at the location or locations at which they are to be delivered at the Closing Time not later than 10:00 A.M. on the business day prior to the Closing Time.
(c) The Company will pay to the Underwriter at the Closing Time for the account of the Underwriter any fee, commission or other compensation which is specified in Schedule I hereto. Such payment will be made by federal funds wire transfer or transfer of other immediately available funds.
Purchase and Sale of Interests Upon the terms and subject to the conditions set forth in this Agreement, Seller shall sell, assign, transfer and convey to Buyer, and Buyer shall purchase and acquire from Seller, at the Closing, the Interests. Seller shall transfer the Interests to Buyer by delivery of the Assignment Document at Closing.
Issuance and Sale of Shares The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through or to the Agent, shares (the “Placement Shares”) of common stock of the Company, $0.0001 par value per share (the “Common Stock”), having an aggregate offering price of up to $50,000,000, provided, however, that in no event shall the Company issue or sell through Agent such number of Placement Shares that (a) exceeds the number of shares or dollar amount of shares of Common Stock that may be sold pursuant to the Registration Statement (as defined below), or (b) exceeds the number of authorized but unissued shares of Common Stock of the Company (the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on the amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that Agent shall have no obligation in connection with such compliance. The issuance and sale of Placement Shares through or to Agent will be effected pursuant to the Registration Statement (as defined below) filed by the Company and declared effective by the Securities and Exchange Commission (the “Commission”), although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue any Placement Shares. The Company has filed or will file, in accordance with the provisions of the Securities Act of 1933, as amended, and the rules and regulations thereunder (the “Securities Act”), with the Commission a registration statement on Form S-3, including a base prospectus relating to certain securities, including the Common Stock, to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (the “Exchange Act”). The Company has prepared a prospectus supplement specifically relating to the Placement Shares (the “Prospectus Supplement”) to the base prospectus included as part of such registration statement. The Company will furnish to the Agent, for use by the Agent, copies of the base prospectus included as part of such registration statement, as supplemented by the Prospectus Supplement, if any, relating to the Placement Shares. Except where the context otherwise requires, such registration statement, and any post-effective amendment thereto, including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act, or any subsequent registration statement on Form S-3 filed pursuant to Rule 415(a)(6) under the Securities Act by the Company to cover any Placement Shares, is herein called the “Registration Statement.” The base prospectus, including all documents incorporated therein by reference, included in the Registration Statement, as it may be supplemented by the Prospectus Supplement, in the form in which such prospectus and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act, together with any then issued Issuer Free Writing Prospectus (defined below), is herein called the “Prospectus.” Any reference herein to the Registration Statement, the Prospectus or any amendment or supplement thereto, shall be deemed to refer to and include the documents incorporated or deemed to be incorporated by reference therein, and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement or the Prospectus shall be deemed to refer to and include the filing after the execution hereof of any document with the Commission deemed to be incorporated by reference therein (the “Incorporated Documents”). For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval System, or if applicable, the Interactive Data Electronic Application system when used by the Commission (collectively, “XXXXX”).
Purchase and Sale of the Units At the Closing, upon the terms and subject to the conditions set forth in this Agreement, the Seller shall sell, assign, transfer, deliver and convey to the Buyer, free and clear of any Liens, and the Buyer shall purchase, accept and acquire from the Seller, the Units.
Purchase and Sale of Shares (a) Upon the basis of the representations and warranties and subject to the terms and conditions herein set forth, the Company agrees to issue and sell to the Underwriter, and the Underwriter agrees to purchase from the Company, at a purchase price of $[ ] per share (the “Per Share Price”), the number of Firm Shares to be sold by the Company as set forth in the first paragraph of this Agreement. In addition, upon the basis of the representations and warranties and subject to the terms and conditions herein set forth, the Selling Shareholders agree to sell to the Underwriter, and the Underwriter agrees to purchase from the Selling Shareholders, at the Per Share Price, the number of Common Shares set forth opposite the name of such Selling Shareholder in Schedule I hereto. The Company and each Selling Shareholder agree that the sale of the Firm Shares shall be made to the Underwriter severally and not jointly.
(b) The Company hereby grants to the Underwriter the right to purchase at its election in whole or in part up to 120,000 Additional Shares, at the Per Share Price, for the sole purpose of covering over-allotments in the sale of the Firm Shares. The option granted hereunder may be exercised at any time (but not more than once) within thirty (30) days after the date of this Agreement, upon notice by the Underwriter to the Company which sets forth the aggregate number of Additional Shares as to which the Underwriter is exercising the option, as well as the date, time and place on which such Additional Shares are to be delivered. Such time of delivery may be the day of, but may not be earlier than, the Closing Date (as defined below) and herein is called the “Additional Closing Date.” The Additional Closing Date shall be determined by the Underwriter, but if at any time other than the Closing Date, shall not be earlier than two nor later than ten full business days after delivery of such notice to exercise. In the event the Underwriter elects to purchase all or a portion of the Additional Shares, the Company agrees to furnish or cause to be furnished to the Underwriter the certificates, letters and opinions, and to satisfy all conditions, set forth in Section 6 hereof at the Additional Closing Date.
(c) In making this Agreement, the Underwriter is contracting, except as provided in Section 3(b) hereof, to purchase only the Firm Shares. The Underwriter shall not be under any obligation to purchase any Additional Shares prior to an exercise of the option with respect to such Shares granted pursuant to Section 3(b) hereof. The Company is advised by you that you intend (i) to make a public offering of the Firm Shares as soon after the effective date of the Registration Statement as in your reasonable judgment is advisable and (ii) initially to offer the Firm Shares upon the terms set forth in the Prospectus. You may from time to time increase or decrease the public offering price after the initial public offering to such extent as you may determine. In addition to the underwriting discount set forth in the Prospectus, the Company and the Selling Shareholders shall pay, in the respective amounts of the Firm Shares to be sold by them, to the Underwriter a financial advisory fee equal to 1.5% of the aggregate public offering price of all Firm Shares purchased (the “Financial Advisory Fee”). If you choose to exercise your right to purchase any or all of the Additional Shares, the Company shall pay to the Underwriter a financial advisory fee equal to 1.5% of the aggregate public offering price of all Additional Shares purchased.
Purchase and Sale of Products (a) Pursuant to Purchase Orders issued by MLNA/MLMX, Supplier shall sell and deliver to MLNA/MLMX, and MLNA/MLMX shall purchase from Supplier, Products specified in Purchase Orders. Such purchases and sales shall be for Products and Prices set forth on Schedule A. Any Affiliate of MLNA/MLMX shall also be entitled to issue Purchase Orders and purchase Products from Supplier under the terms of this Agreement. Only the specific MLNA/MLMX Party issuing a Purchase Order will be liable to Supplier for obligations in connection with a Purchase Order. Neither MLNA or MLMX or any Affiliate of either of them will be liable to Supplier for any obligations of any other MLNA/MLMX Party or Affiliate.
(b) During the term hereof, MLNA/MLMX may, but shall not be required to, provide Supplier with estimates or forecasts of MLNA/MLMX´s requirements for Products from Supplier. Any forecasts or estimates are for information purposes only and may be modified by MLNA/MLMX at any time and in its sole discretion. Any product quantities cited in or pursuant to this Agreement, except for quantities cited in a Purchase Order as firm, are preliminary and non-binding only. MLNA/MLMX makes no representation, warranty or agreement as to the quantity of products that it will purchase from Supplier, if any, or that MLNA/MLMX will buy Products exclusively from Supplier.
(c) MLNA/MLMX shall issue Purchase Orders to Supplier and Supplier shall confirm to MLNA/MLMX the receipt of each Purchase Order issued hereunder (each, a "Confirmation") within [NUMBER] Business Days following Supplier's receipt thereof. Each Confirmation must reference MLNA/MLMX's Purchase Order number and confirm acceptance of the Purchase Order unless Supplier timely advises MLNA/MLMX that Supplier is unwilling to accept any terms or conditions in the applicable Purchase Order that conflict with the terms and conditions of this Agreement. If Supplier fails to issue a Confirmation within the time set forth above or otherwise commences performance under such Purchase Order, Supplier will be deemed to have accepted the Purchase Order. MLNA/MLMX may withdraw any Purchase Order prior to Supplier's acceptance (or deemed acceptance) thereof.
(d) MLNA/MLMX may, in its sole discretion, on notice to Supplier, without liability or penalty, terminate all or any part of a Purchase Order with or without cause effective immediately or otherwise as specified in such notice. Upon any such termination, Supplier shall immediately cease work and purchasing materials relating to fulfilling the Purchase Order, and deliver to MLNA/MLMX on request all or any portion of Products under the relevant Purchase Order at the Prices.
(e) MLNA/MLMX may, on notice to Supplier, request changes to a Purchase Order. On or before the second Business Day after receiving the request, Supplier shall submit to MLNA/MLMX its good faith description of the impact of such changes on the Basic Purchase Order Terms. MLNA/MLMX may then submit an amended Purchase Order reflecting all MLNA/MLMX-accepted changes.