Sale and Delivery of Units. (a) Subject to the terms and conditions set forth herein, the Partnership agrees to issue and sell Units through the applicable Agents acting as sales agent or directly to the applicable Agents acting as principal from time to time. Sales of the Units, if any, through an Agent acting as sales agent or directly to an Agent acting as principal will be made by means of ordinary brokers’ transactions on the NYSE or otherwise at market prices prevailing at the time of sale, at prices related to prevailing market prices or at negotiated prices. (b) The Units are to be sold to an Agent on an agented basis on any day (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time)(each, a “Trading Day”) on which (i) the Partnership has instructed such Agent to make such sales and (ii) the Partnership has satisfied its covenants and conditions specified in Sections 4 and 5 hereof. On any Trading Day, the Partnership may sell Units through only one Agent and, if it determines to do so, shall instruct the applicable Agent by telephone (confirmed promptly by telecopy or email, which confirmation will be promptly acknowledged by such Agent) as to the maximum number of Units to be sold on such Trading Day and the minimum price per Unit at which such Units may be sold. Subject to the terms and conditions specified herein (including, without limitation, the accuracy of the representations and warranties of the Partnership and the performance by the Partnership of its covenants and other obligations, contained herein and the satisfaction of the additional conditions specified in Section 5 hereof), such Agent shall use its commercially reasonable efforts, consistent with its normal trading and sales practices and applicable law and regulations, to sell all of the Units so designated by the Partnership as sales agent in accordance with such instruction. On any Trading Day, the Partnership shall give at least one business day’s prior written notice by telecopy or email to the Agents as to any change of the Agent through whom sales of Units as sales agent will be made. For the avoidance of doubt, the foregoing limitation shall not apply to sales solely to employees or security holders of the Enable Entities or any of their subsidiaries or to a trustee or other person acquiring Units for the accounts of such persons in which either Xxxxxxx Xxxxx, Barclays Capital Inc., Citigroup Global Markets Inc., Credit Suisse Securities (USA) LLC, Deutsche Bank Securities Inc., Xxxxxxx Xxxxx & Co. LLC, X.X. Xxxxxx Securities LLC, Mizuho Securities USA LLC, Xxxxxx Xxxxxxx & Co. LLC, MUFG Securities Americas Inc., RBC Capital Markets, LLC, SunTrust Xxxxxxxx Xxxxxxxx, Inc. or Xxxxx Fargo Securities, LLC is acting for the Partnership in a capacity other than as Agent under this Agreement. The Partnership and the Agents each acknowledge and agree that (A) there can be no assurance that any Agent will be successful in selling any Units and (B) the Agents will not incur any liability or obligation to the Partnership if they fail to sell Units for any reason other than a failure to use their respective commercially reasonable efforts, consistent with its normal trading and sales practices and applicable law and regulations, to sell such Units as required by this Agreement. (c) The Partnership or the Agent through whom the sale of Units are to be made as sales agent on any Trading Day may, upon notice to the other party hereto by telephone (confirmed promptly by telecopy or email, which confirmation will be promptly acknowledged by the receiving party), suspend the offering of Units with respect to which such Agent is acting as sales agent for any reason and at any time; provided, however, that such suspension shall not affect or impair the parties’ respective obligations with respect to the Units sold, or with respect to Units that the Partnership has agreed to sell, hereunder prior to the giving of such notice. (d) The gross sales price of any Units sold pursuant to this Agreement by the applicable Agent acting as sales agent of the Partnership shall be equal to, in the discretion of such Agent but subject to the specific instructions of the Partnership, the market price prevailing at the time of sale for the Units sold by such Agent on the NYSE or otherwise, at prices related to prevailing market prices or at negotiated prices. The compensation payable to an Agent for sales of Units with respect to which such Agent acts as sales agent shall not exceed 2% of the gross sales price for such Units, which commission shall be agreed to separately by such Agent and the Partnership. The remaining proceeds, after further deduction for any transaction fees, transfer taxes or similar taxes or fees imposed by any Governmental Entity or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Partnership for such sales (the “Net Proceeds”). The applicable Agent shall notify the Partnership as promptly as practicable if any deduction referenced in the preceding sentence will be made. Notwithstanding the foregoing, in the event the Partnership engages an Agent as sales agent for the sale of Units that would constitute a “distribution” within the meaning of Rule 100 of Regulation M under the 1934 Act, the Partnership and such Agent will agree to compensation for such Agent that is customary for such sales. (e) If acting as sales agent hereunder, the applicable Agent shall provide written confirmation to the Partnership following the close of trading on the NYSE on each Trading Day on which Units are sold under this Agreement setting forth the number of Units sold on such day, the aggregate gross sales proceeds of the Units, the aggregate Net Proceeds to the Partnership and the aggregate compensation payable by the Partnership to such Agent with respect to such sales. At each Agent’s election, such compensation shall be set forth and invoiced in periodic statements from such Agent to the Partnership, with payment to be made by the Partnership promptly after its receipt thereof. (f) Under no circumstances shall the aggregate gross sales price or number, as the case may be, of Units offered or sold pursuant to this Agreement, or which are the subject of instructions to an Agent as sales agent pursuant to Section 2(b) hereof, exceed the aggregate gross sales price or number, as the case may be, of Units (i) referred to in the preamble paragraph of this Agreement, as reduced by prior sales of Units under this Agreement, (ii) available for sale under the Registration Statement or (iii) duly authorized from time to time to be issued and sold under this Agreement by the Partnership or approved for listing on the NYSE, and, in each case referred to in clause (ii) and (iii), notified to the Agents in writing. In addition, under no circumstances shall any Units with respect to which the Agent acts as sales agent be offered or sold, or be the subject of instructions to an Agent as sales agent pursuant to Section 2(b) hereof, at a price lower than the minimum price therefor duly authorized from time to time by the Partnership and notified to the Agents in writing. The Agents shall have no responsibility for maintaining records with respect to Units available for sale under the Registration Statement or for determining the aggregate gross sales price, number or minimum price of Units duly authorized by the Partnership. (g) If the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the 1934 Act are not satisfied with respect to the Partnership or the Units, the Partnership shall promptly notify the Agents and future offers and sales of Units through the Agents on an agented basis under this ATM Equity OfferingSM Sales Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party. (h) Settlement for sales of Units will occur (i) prior to September 5, 2017, on the third business day that is also a Trading Day following the trade date on which such sales are made and (ii) on and after September 5, 2017, on the second business day that is also a Trading Day following the trade date on which such sales were made, in either case unless another date shall be agreed to in writing by the Partnership and the applicable Agents (each such day, a “Settlement Date”). On each Settlement Date for the sale of Units through an Agent as sales agent, such Units shall be delivered by the Partnership to such Agent in book-entry form to such Agent’s account at The Depository Trust Company against payment by such Agent of the Net Proceeds from the sale of such Units in same day funds delivered to an account designated by the Partnership. If the Partnership shall default on its obligation to deliver Units through an Agent as sales agent on any Settlement Date, the Partnership shall (i) indemnify and hold such Agent harmless against any loss, claim or damage arising from or as a result of such default by the Partnership and (ii) pay such Agent any commission to which it would otherwise be entitled absent such default. (i) Notwithstanding any other provision of this Agreement, the Partnership shall not offer or sell, or instruct an Agent to offer or sell, any Units through an Agent as sales agent (and, by notice to the Agents given by telephone (confirmed promptly by telecopy or email), shall cancel any instructions for any such offer or sale of any Units prior to the commencement of the periods referenced below), and the Agents shall not be obligated to make any such offer or sale of Units, (i) during any period in which the Partnership is, or could be deemed to be, in possession of material non-public information or (ii) except as provided in Section 2(j) hereof, at any time during the period commencing on the 10th business day prior to the time the Partnership issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the time that is 24 hours after the time that the Partnership files a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement. (j) Notwithstanding clause (ii) of Section 2(i) hereof, if the Partnership wishes to offer or sell Units to an Agent as sales agent at any time during the period from and including an Earnings Announcement through and including the corresponding Filing Time, the Partnership shall first (i) prepare and deliver to such Agent (with a copy to counsel for the Agents) a Current Report on Form 8-K that includes substantially the same financial and related information (together with management’s discussion and analysis thereof) that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to such Agent, and, prior to its filing, obtain the written consent of such Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide such Agent with the officers’ certificate, opinions and letters of counsel and accountants’ letter specified in Section 3(o), (p) and (q), respectively, hereof, (iii) afford such Agent the opportunity to conduct a due diligence review in accordance with Section 3(t) hereof prior to filing such Earnings 8-K and (iv) file such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificate, opinion or letter of counsel or accountants’ letter pursuant to this Section 2(j) shall not relieve the Partnership from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Section 3(o), (p) and (q), respectively, hereof, and (B) this Section 2(j) shall in no way affect or limit the operation of clause (i) of Section 2(i) hereof, which shall have independent application. (k) The Agents shall not have any obligation to purchase Units as principal, whether from the Partnership or otherwise, unless the Partnership and the applicable Agents agree as set forth below. Units purchased from the Partnership by the applicable Agents, individually or in a syndicate, as principal shall be made in accordance with terms agreed upon between such Agents and the Partnership as evidenced by a Terms Agreement. The applicable Agents’ commitment to purchase Units from the Partnership as principal shall be deemed to have been made on the basis of the accuracy of the representations and warranties of the Partnership, and performance by the Partnership of its covenants and other obligations, herein contained and shall be subject to the terms and conditions herein set forth. At the time of each Terms Agreement, the applicable Agents shall specify the requirements, if any, for the officers’ certificate, opinions and letters of counsel and accountants’ letter pursuant to Section 3(o), (p) and (q), respectively, hereof. In the event of a conflict between the terms of this ATM Equity OfferingSM Sales Agreement and a Terms Agreement, the terms of such Terms Agreement shall control.

Appears in 2 contracts

Samples: Atm Equity Offering Sales Agreement, Atm Equity Offering Sales Agreement (Enable Midstream Partners, LP)

Sale and Delivery of Units. (a) Subject to the terms and conditions set forth herein, the Partnership agrees to issue and sell Units through the ~~applicable~~ Agents acting as sales ~~agent~~ agents or directly to the ~~applicable~~ Agents acting as principal from time to time. Sales of the Units, if any, through an Agent acting as sales agent or directly to an Agent acting as principal will be made by means of ordinary brokers’ transactions on the NYSE or otherwise at market prices prevailing at the time of sale, at prices related to prevailing market prices or at negotiated prices. (b) The Units are to be sold to an the applicable Agent on an agented basis on any day (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing ~~time)(each~~time) (each, a “Trading Day”) on which (i) the Partnership has instructed such Agent to make such sales and (ii) the Partnership has satisfied its covenants and conditions specified in Sections 4 and 5 hereof. On any Trading Day, the Partnership may sell Units through only one Agent and, if it determines to do so, shall instruct the applicable Agent by telephone (confirmed promptly by telecopy or email, which confirmation will be promptly acknowledged by such Agent) as to the maximum number of Units to be sold on such Trading Day and the minimum price per Unit at which such Units may be sold. Such instruction shall originate from any of the individuals from the Partnership set forth on Schedule IV (with a copy to each of the other individuals from the Partnership listed on such schedule), as such Schedule IV may be amended from time to time. Subject to the terms and conditions specified herein (including, without limitation, the accuracy of the representations and warranties of the Partnership Parties and the performance by the Partnership Parties of ~~its~~ their covenants and other obligations, contained herein and the satisfaction of the additional conditions specified in Section 5 hereof), such Agent shall use its commercially reasonable efforts, consistent with its normal trading and sales practices and applicable law and regulations, to sell all of the Units so designated by the Partnership as sales agent in accordance with such instruction. On any Trading Day, the Partnership shall give at least one business day’s prior written notice by telecopy or email to the Agents as to any change of the Agent through whom sales of Units as sales agent will be made. For the avoidance of doubt, the foregoing limitation shall not apply to sales solely to employees or security holders of the ~~Enable Entities~~ Partnership or ~~any of their~~ its subsidiaries or to a trustee or other person acquiring Units for the accounts of such persons in which either Xxxxxxx ~~Xxxxx, Barclays Capital Inc., Citigroup Global Markets Inc., Credit Suisse Securities (USA) LLC, Deutsche Bank Securities Inc., Xxxxxxx~~ Xxxxx ~~& Co. LLC, X.X. Xxxxxx Securities LLC, Mizuho Securities USA LLC, Xxxxxx Xxxxxxx & Co. LLC, MUFG Securities Americas Inc., RBC Capital Markets, LLC,~~ or SunTrust ~~Xxxxxxxx Xxxxxxxx, Inc. or Xxxxx Fargo Securities, LLC~~ is acting for the Partnership in a capacity other than as Agent under this Agreement. The Partnership and the Agents each acknowledge and agree that (A) there can be no assurance that any Agent will be successful in selling any Units and (B) the Agents will not incur any liability or obligation to the Partnership if they fail to sell Units for any reason other than a failure to use their respective commercially reasonable efforts, consistent with ~~its~~ their respective normal trading and sales practices and applicable law and regulations, to sell such Units as required by this Agreement. (c) The Partnership or the Agent through whom the sale of Units are to be made as sales agent on any Trading Day may, upon notice to the other party hereto by telephone (confirmed promptly by telecopy or email, which confirmation will be promptly acknowledged by the receiving party), suspend the offering of Units with respect to which such Agent is acting as sales agent for any reason and at any time; provided, however, that such suspension shall not affect or impair the parties’ respective obligations with respect to the Units sold, or with respect to Units that the Partnership has agreed to sell, hereunder prior to the giving of such notice. (d) The gross sales price of any Units sold pursuant to this Agreement by the applicable Agent acting as sales agent of the Partnership shall be equal to, in the discretion of such Agent but subject to the specific instructions of the Partnership, the market price prevailing at the time of sale for the Units sold by such Agent on the NYSE or otherwise, at prices related to prevailing market prices or at negotiated prices. The compensation payable to an Agent for sales of Units with respect to which such Agent acts as sales agent shall ~~not exceed 2~~be up to 2.0% of the gross sales price for such ~~Units, which commission shall be~~ Units as mutually agreed to ~~separately~~ in writing by such Agent and the Partnership. The remaining proceeds, after further deduction for any transaction fees, transfer taxes or similar taxes or fees imposed by any Governmental Entity or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Partnership for such sales (the “Net Proceeds”). The applicable Agent shall notify the Partnership as promptly as practicable if any deduction referenced in the preceding sentence will be made. Notwithstanding the foregoing, in the event the Partnership engages an Agent as sales agent for the sale of Units that would constitute a “distribution” within the meaning of Rule 100 of Regulation M under the 1934 Act, the Partnership and such Agent will agree to compensation for such Agent that is customary for such sales. (e) If acting as sales agent hereunder, the applicable Agent shall provide written confirmation to the Partnership following the close of trading on the NYSE on each Trading Day on which Units are sold under this Agreement setting forth the number of Units sold on such day, the aggregate gross sales proceeds of the Units, the aggregate Net Proceeds to the Partnership and the aggregate compensation payable by the Partnership to such Agent with respect to such sales. At each Agent’s election, such compensation shall be set forth and invoiced in periodic statements from such Agent to the Partnership, with payment to be made by the Partnership promptly after its receipt thereof. (f) Under no circumstances shall the aggregate gross sales price or number, as the case may be, of Units offered or sold pursuant to this Agreement, or which are the subject of instructions to an Agent as sales agent pursuant to Section 2(b) hereof, exceed the aggregate gross sales price or number, as the case may be, of Units (i) referred to in the preamble paragraph of this Agreement, as reduced by prior sales of Units under this Agreement, (ii) available for sale under the Registration Statement or (iii) duly authorized from time to time to be issued and sold under this Agreement by the Partnership or approved for listing on the NYSE, and, in each case referred to in clause (ii) and (iii), notified to the Agents in writing. In addition, under no circumstances shall any Units with respect to which ~~the~~ such Agent acts as sales agent be offered or sold, or be the subject of instructions to an Agent as sales agent pursuant to Section 2(b) hereof, at a price lower than the minimum price therefor duly authorized from time to time by the Partnership and notified to the Agents in writing. The Agents shall have no responsibility for maintaining records with respect to Units available for sale under the Registration Statement or for determining the aggregate gross sales price, number or minimum price of Units duly authorized by the Partnership. (g) If the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the 1934 Act are not satisfied with respect to the Partnership or the Units, the Partnership shall promptly notify the Agents and future offers and sales of Units through the Agents on an agented basis under this ATM Equity ~~OfferingSM~~ Offering SM Sales Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party. (h) Settlement for sales of Units will occur ~~(i) prior to September 5, 2017,~~ on the third business day that is also a Trading Day following the trade date on which such sales are ~~made and (ii) on and after September 5, 2017, on the second business day that is also a Trading Day following the trade date on which such sales were~~ made, ~~in either case~~ unless another date shall be agreed to in writing by the Partnership and the applicable ~~Agents~~ Agent (each such day, a “Settlement Date”). On each Settlement Date for the sale of Units through an Agent as sales agent, such Units shall be delivered by the Partnership to such Agent in book-entry form to such Agent’s account at The Depository Trust Company against payment by such Agent of the Net Proceeds from the sale of such Units in same day funds delivered to an account designated by the Partnership. If the Partnership shall default on its obligation to deliver Units through an Agent as sales agent on any Settlement Date, the Partnership shall (i) indemnify and hold such Agent harmless against any loss, claim or damage arising from or as a result of such default by the Partnership and (ii) pay such Agent any commission to which it would otherwise be entitled absent such default. (i) Notwithstanding any other provision of this Agreement, the Partnership shall not offer or sell, or instruct an any Agent to offer or sell, any Units through an Agent as sales agent (and, by notice to the Agents given by telephone (confirmed promptly by telecopy or email), shall cancel any instructions for any such offer or sale of any Units prior to the commencement of the periods referenced below), and the Agents shall not be obligated to make any such offer or sale of Units, (i) until the date on which the Partnership has filed its Quarterly Report on Form 10-Q for the nine months ended September 30, 2015 (the “Commencement Date”), (ii) during any period in which the Partnership is, or could be deemed to be, in possession of material non-public information or (iiiii) except as provided in Section 2(j) hereof, at any time during the period commencing on the 10th business day prior to the time the Partnership issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the time that is 24 hours after the time that the Partnership files a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement. (j) Notwithstanding clause (iiiii) of Section 2(i) hereof, if the Partnership wishes to offer or sell Units to an any Agent as sales agent at any time during the period from and including an Earnings Announcement through and including the corresponding Filing Time, the Partnership shall first (i) prepare and deliver to such Agent (with a copy to counsel for the Agents) a Current Report on Form 8-K that includes substantially the same financial and related information (together with management’s discussion and analysis thereof) that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to such Agent, and, prior to its filing, obtain the written consent of such Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide such Agent with the officers’ certificate, opinions and letters of counsel and accountants’ letter specified in Section 3(o), (p) and (q), respectively, hereof, (iii) afford such Agent the opportunity to conduct a due diligence review in accordance with Section 3(t) hereof prior to filing such Earnings 8-K and (iv) file such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificate, opinion or letter of counsel or accountants’ letter pursuant to this Section 2(j) shall not relieve the Partnership from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Section 3(o), (p) and (q), respectively, hereof, and (B) this Section 2(j) shall in no way affect or limit the operation of clause (i) of Section 2(i) hereof, which shall have independent application. (k) ~~The Agents~~ No Agent shall ~~not~~ have any obligation to purchase Units as principal, whether from the Partnership or otherwise, unless the Partnership and ~~the applicable Agents~~ such Agent agree as set forth below. Units purchased from the Partnership by the applicable ~~Agents, individually or in a syndicate,~~ Agents as principal shall be made in accordance with terms agreed upon between such Agents and the Partnership as evidenced by a Terms Agreement. The applicable ~~Agents’~~ Agent’s commitment to purchase Units from the Partnership as principal shall be deemed to have been made on the basis of the accuracy of the representations and warranties of the ~~Partnership~~Partnership Parties, and performance by the Partnership Parties of ~~its~~ their covenants and other obligations, herein contained and shall be subject to the terms and conditions herein set forth. At the time of each Terms Agreement, the applicable ~~Agents~~ Agent shall specify the requirements, if any, for the officers’ certificate, opinions and letters of counsel and accountants’ letter pursuant to Section 3(o), (p) and (q), respectively, hereof. In the event of a conflict between the terms of this ATM Equity OfferingSM Sales Agreement and a Terms Agreement, the terms of such Terms Agreement shall control.

Appears in 2 contracts

Samples: Atm Equity Offering Sales Agreement, Atm Equity Offering Sales Agreement (American Midstream Partners, LP)

Sale and Delivery of Units. (a) Sale of Units by the Managers, as Sales Agents. Subject to the terms and conditions and in reliance upon the representations and warranties herein set ~~forth herein~~forth, the Partnership agrees to issue and sell Units from time to time through the ~~applicable Agents~~ Managers, acting as sales ~~agent or directly~~ agents, and each Manager agrees to ~~the applicable Agents acting as principal from time~~ use its reasonable efforts to ~~time. Sales of the Units~~sell, ~~if any, through an Agent acting~~ as sales agent ~~or directly to an Agent acting as principal will be made by means of ordinary brokers’ transactions~~ for the Partnership, the Units on the ~~NYSE or otherwise at market prices prevailing at the time of sale, at prices related to prevailing market prices or at negotiated prices~~following terms. (bi) The Units are to be sold by one of the Managers on a daily basis or otherwise as shall be agreed to ~~an Agent on an agented basis~~ by the Partnership and such Manager on any day that (A) is a trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing ~~time)(each~~time), ~~a “Trading Day”) on which~~ (iB) the Partnership, through any of the individuals listed as “Authorized Representatives” on Schedule III hereto, as the same may be amended or supplemented by the Partnership in its sole discretion upon advance notice to the Managers, has instructed such ~~Agent~~ Manager by electronic mail or telephone (and in the case of telephone, confirmed promptly by electronic mail) to make such sales and (iiC) the Partnership has satisfied its ~~covenants and conditions specified in Sections 4 and 5 hereof~~obligations under Section 6 of this Agreement. ~~On any Trading Day, the~~ The Partnership ~~may sell Units through only one Agent and, if it determines to do so, shall instruct the applicable Agent by telephone~~ will designate (~~confirmed promptly by telecopy or email, which confirmation will be promptly acknowledged by such Agent~~i) ~~as to~~ the maximum ~~number~~ amount of the Units to be sold on by such ~~Trading Day~~ Manager daily as agreed to by such Manager (in any event not in excess of the amount available for issuance under the Prospectus and the currently effective Registration Statement), (ii) the minimum price per Unit at which such Units may be ~~sold~~sold and (iii) the compensation payable to such Manager for such sales pursuant to Section 3(a)(v), which compensation shall have been discussed and agreed to by the Partnership and such Manager. Subject to the terms and conditions ~~specified herein (including~~hereof, ~~without limitation, the accuracy~~ such Manager shall use its reasonable efforts to sell on a particular day all of the ~~representations and warranties of~~ Units designated for the ~~Partnership and the performance~~ sale by the Partnership ~~of its covenants and other obligations, contained herein and the satisfaction~~ on such day. The gross sales price of the ~~additional conditions specified~~ Units sold under this Section 3(a) shall be the market price for the Partnership’s Common Units sold by such Manager under this Section 3(a) on the NYSE at the time of sale of such Units. For the avoidance of doubt, the Partnership shall submit instructions to sell Units to only one Manager, if any, on any single trading day. (ii) The Partnership acknowledges and agrees that (A) there can be no assurance that any Manager will be successful in ~~Section 5 hereof)~~selling the Units, (B) no Manager will incur any liability or obligation to the Partnership or any other person or entity if such ~~Agent shall~~ Manager does not sell Units for any reason other than a failure by such Manager to use its ~~commercially~~ reasonable ~~efforts,~~ efforts consistent with its normal trading and sales practices and applicable law and regulations, to sell all of the Units so designated by the Partnership as sales agent in accordance with such instruction. On any Trading Day, the Partnership shall give at least one business day’s prior written notice by telecopy or email to the Agents as to any change of the Agent through whom sales of Units as sales agent will be made. For the avoidance of doubt, the foregoing limitation shall not apply to sales solely to employees or security holders of the Enable Entities or any of their subsidiaries or to a trustee or other person acquiring Units for the accounts of such persons in which either Xxxxxxx Xxxxx, Barclays Capital Inc., Citigroup Global Markets Inc., Credit Suisse Securities (USA) LLC, Deutsche Bank Securities Inc., Xxxxxxx Xxxxx & Co. LLC, X.X. Xxxxxx Securities LLC, Mizuho Securities USA LLC, Xxxxxx Xxxxxxx & Co. LLC, MUFG Securities Americas Inc., RBC Capital Markets, LLC, SunTrust Xxxxxxxx Xxxxxxxx, Inc. or Xxxxx Fargo Securities, LLC is acting for the Partnership in a capacity other than as Agent under this Agreement. The Partnership and the Agents each acknowledge and agree that (A) there can be no assurance that any Agent will be successful in selling any Units and (B) the Agents will not incur any liability or obligation to the Partnership if they fail to sell Units for any reason other than a failure to use their respective commercially reasonable efforts, consistent with its normal trading and sales practices and applicable law and regulations, regulations to sell such Units as required by under this Agreement, and (C) no Manager shall be under any obligation to purchase Units on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by such Manager and the Partnership. (ciii) The Partnership shall not authorize the issuance and sale of, and the relevant Manager shall not be obligated to use its reasonable efforts to sell, any Units at a price lower than the minimum price therefor designated from time to time by the Board of Directors of the General Partner (the “Board”), a duly authorized committee thereof, or any individual to whom such authority has been duly and properly delegated by the ~~Agent through whom the sale of Units are~~ Board or a duly authorized committee thereof, and notified to ~~be made as sales agent on~~ such Manager in writing. The Partnership or any ~~Trading Day~~ Manager may, upon notice to the other party hereto by electronic mail or telephone (and in the case of telephone, confirmed promptly by ~~telecopy or email, which confirmation will be promptly acknowledged by the receiving party~~electronic mail), suspend or terminate the offering of the Units with respect to which such ~~Agent~~ Manager is acting as sales agent for any reason and at any time; provided, however, that such suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Units ~~sold, or with respect to Units that the Partnership has agreed to sell,~~ sold hereunder prior to the giving of such notice. (div) ~~The gross~~ Each Manager hereby covenants and agrees not to make any sales ~~price~~ of ~~any~~ the Units ~~sold~~ on behalf of the Partnership pursuant to this ~~Agreement~~ Section 3(a), other than (A)(1) by means of ordinary brokers’ transactions between members of the ~~applicable Agent acting~~ NYSE, any other national securities exchange or facility thereof, a trading facility of a national securities association, or an alternative trading system that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 under the Act, (2) to or through a market maker, or (3) directly on or through an electronic communication network, a “dark pool” or any similar market venue and (B) such other sales of the Units on behalf of the Partnership in its capacity as ~~sales~~ agent of the Partnership as shall be ~~equal to, in~~ agreed by the ~~discretion of~~ Partnership and such ~~Agent but subject~~ Manager pursuant to the specific instructions of the Partnership, the market price prevailing at the time of sale for the Units sold by such Agent on the NYSE or otherwise, at prices related to prevailing market prices or at negotiated prices. a Terms Agreement. (v) The compensation ~~payable~~ to ~~an Agent~~ each Manager for sales of the Units with respect to which such ~~Agent~~ Manager acts as sales agent under this Agreement shall ~~not exceed~~ be up to 2% of the gross sales price ~~for such Units, which commission shall be agreed~~ of the Units sold pursuant to ~~separately by such Agent~~ this Section 3(a) and payable as described in the ~~Partnership~~succeeding subsection (vi) below. The ~~remaining proceeds~~foregoing rate of compensation shall not apply when any Manager acts as principal, ~~after further deduction for any transaction fees, transfer taxes or similar taxes or fees imposed by any Governmental Entity or self-regulatory organization~~ in ~~respect of~~ which case the Partnership may sell Units to such ~~sales,~~ Manager as principal at a price mutually agreed upon at the relevant Applicable Time pursuant to a Terms Agreement. The gross proceeds less such Manager’s commission shall constitute the net proceeds to the Partnership for such ~~sales~~ Units (the “Net Proceeds”). ~~The applicable Agent shall notify~~ Payment of the Net Proceeds after further deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales (the “Transaction Fees”), for Units sold by the Partnership ~~as promptly as practicable if~~ on any ~~deduction referenced in the preceding sentence will~~ Settlement Date shall be ~~made. Notwithstanding the foregoing, in the event~~ made to the Partnership ~~engages an Agent as sales agent for~~ by federal funds wire transfer to the ~~sale~~ account of ~~Units that would constitute a “distribution” within the meaning of Rule 100 of Regulation M under the 1934 Act,~~ the Partnership ~~and~~ against delivery of such ~~Agent will agree~~ Units to ~~compensation for~~ such ~~Agent that is customary for~~ Manager’s account, or an account of such ~~sales~~Manager’s designee, at The Depository Trust Company (“DTC”). (evi) If Each Manager acting as sales agent ~~hereunder, the applicable Agent~~ hereunder shall provide written confirmation (which may be by facsimile or electronic mail) to the Partnership following the close of trading on the NYSE on each ~~Trading Day on~~ day in which the Units with respect to which such Manager is acting as sales agent are sold under this ~~Agreement~~ Section 3(a) setting forth the number of the Units sold on such day, the aggregate gross sales proceeds of and the ~~Units, the aggregate~~ Net Proceeds to the ~~Partnership~~ Partnership, and the ~~aggregate~~ compensation payable by the Partnership to such ~~Agent~~ Manager with respect to such sales. ~~At each Agent’s election, such~~ Such compensation shall be set forth and invoiced in periodic statements from such ~~Agent~~ Manager to the Partnership, with payment to be made by the Partnership promptly after its receipt thereof. (f) Under no circumstances shall the aggregate gross sales price or number, as the case may be, of Units offered or sold pursuant to this Agreement, or which are the subject of instructions to an Agent as sales agent pursuant to Section 2(b) hereof, exceed the aggregate gross sales price or number, as the case may be, of Units (i) referred to in the preamble paragraph of this Agreement, as reduced by prior sales of Units under this Agreement, (ii) available for sale under the Registration Statement or (iii) duly authorized from time to time to be issued and sold under this Agreement by the Partnership or approved for listing on the NYSE, and, in each case referred to in clause (ii) and (iii), notified to the Agents in writing. In addition, under no circumstances shall any Units with respect to which the Agent acts as sales agent be offered or sold, or be the subject of instructions to an Agent as sales agent pursuant to Section 2(b) hereof, at a price lower than the minimum price therefor duly authorized from time to time by the Partnership and notified to the Agents in writing. The Agents shall have no responsibility for maintaining records with respect to Units available for sale under the Registration Statement or for determining the aggregate gross sales price, number or minimum price of Units duly authorized by the Partnership. (g) If the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the 1934 Act are not satisfied with respect to the Partnership or the Units, the Partnership shall promptly notify the Agents and future offers and sales of Units through the Agents on an agented basis under this ATM Equity OfferingSM Sales Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party. (hvii) Settlement for sales of the Units pursuant to this Section 3(a) will occur ~~(i) prior to September 5, 2017,~~ on the third ~~business day that is also a Trading~~ Business Day following the ~~trade~~ date on which such sales are made and (ii) on and after September 5, 2017, on the second business day that is also a Trading Day following the trade date on which such sales were made, in either case unless another date shall be agreed to in writing by the Partnership and the applicable Agents (each such day, a “Settlement Date”). On each Settlement ~~Date~~ Date, the Units sold through a Manager for ~~the sale of Units through an Agent as sales agent,~~ settlement on such ~~Units~~ date shall be issued and delivered by the Partnership to such ~~Agent in book-entry form to such Agent’s account at The Depository Trust Company~~ Manager against payment ~~by such Agent~~ of the Net Proceeds ~~from~~ for the sale of such Units. Settlement for all such Units shall be effected by free delivery of the Units to such Manager’s account, or an account of such Manager’s designee, at DTC in return for payments in same day funds delivered to an the account designated by the Partnership. If the Partnership or its transfer agent (if applicable) shall default on its obligation to deliver the Units ~~through an Agent as sales agent~~ on any Settlement Date, the Partnership shall (iA) indemnify and hold such ~~Agent~~ Manager harmless against any loss, claim or damage arising from or as a result of such default by the Partnership and (iiB) pay such ~~Agent~~ Manager any commission to which it would otherwise be entitled absent such default. If a Manager acting as sales agent hereunder breaches this Agreement by failing to deliver the Net Proceeds less any Transaction Fees to the Partnership on any Settlement Date for the Units delivered by the Partnership to such Manager, such Manager will pay the Partnership interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to such Manager. (iviii) ~~Notwithstanding any other provision of this Agreement~~At each Applicable Time, Settlement Date and Representation Date (as defined in Section 4(k)), the Partnership shall not offer or sell, or instruct an Agent to offer or sell, any Units through an Agent as sales agent (and, by notice to the Agents given by telephone (confirmed promptly by telecopy or email), shall cancel any instructions for any such offer or sale of any Units prior to the commencement of the periods referenced below), and the Agents shall not be obligated to make any such offer or sale of Units, (i) during any period in which the Partnership is, or could be deemed to be, in possession of material non-public information or (ii) except as provided in Section 2(j) hereof, at any time during the period commencing on the 10th business day prior to the time the Partnership issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the time that is 24 hours after the time that the Partnership files a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement. (j) Notwithstanding clause (ii) of Section 2(i) hereof, if the Partnership wishes to offer or sell Units to an Agent as sales agent at any time during the period from and including an Earnings Announcement through and including the corresponding Filing Time, the Partnership shall first (i) prepare and deliver to such Agent (with a copy to counsel for the Agents) a Current Report on Form 8-K that includes substantially the same financial and related information (together with management’s discussion and analysis thereof) that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to such Agent, and, prior to its filing, obtain the written consent of such Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide such Agent with the officers’ certificate, opinions and letters of counsel and accountants’ letter specified in Section 3(o), (p) and (q), respectively, hereof, (iii) afford such Agent the opportunity to conduct a due diligence review in accordance with Section 3(t) hereof prior to filing such Earnings 8-K and (iv) file such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificate, opinion or letter of counsel or accountants’ letter pursuant to this Section 2(j) shall not relieve the Partnership from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Section 3(o), (p) and (q), respectively, hereof, and (B) this Section 2(j) shall in no way affect or limit the operation of clause (i) of Section 2(i) hereof, which shall have independent application. (k) The Agents shall not have any obligation to purchase Units as principal, whether from the Partnership or otherwise, unless the Partnership and the applicable Agents agree as set forth below. Units purchased from the Partnership by the applicable Agents, individually or in a syndicate, as principal shall be made in accordance with terms agreed upon between such Agents and the Partnership as evidenced by a Terms Agreement. The applicable Agents’ commitment to purchase Units from the Partnership as principal shall be deemed to have ~~been~~ affirmed each representation and warranty contained in this Agreement as if such representation and warranty were made as of such date, but modified to relate to the Registration Statement, the Prospectus and the documents incorporated by reference therein, in each case as amended or supplemented as of such date. Any obligation of a Manager to use its reasonable efforts to sell the Units on ~~the basis~~ behalf of the Partnership shall be subject to the continuing accuracy of the representations and warranties of the ~~Partnership~~Partnership herein (as modified in the manner described above), ~~and~~ to the performance by the Partnership of its ~~covenants~~ obligations hereunder and ~~other obligations, herein contained and shall be subject~~ to the ~~terms and~~ continuing satisfaction of the additional conditions herein set forth. At the time of each Terms Agreement, the applicable Agents shall specify the requirements, if any, for the officers’ certificate, opinions and letters of counsel and accountants’ letter pursuant to specified in Section ~~3(o), (p) and (q), respectively, hereof. In the event of a conflict between the terms~~ 6 of this ~~ATM Equity OfferingSM Sales Agreement and a Terms~~ Agreement~~, the terms of such Terms Agreement shall control~~.

Appears in 1 contract

Samples: Equity Distribution Agreement (Targa Resources Partners LP)

Sale and Delivery of Units. (a) Subject to the terms and conditions and in reliance upon the representations and warranties herein set ~~forth herein~~forth, the Partnership agrees to issue and sell Units from time to time through the ~~applicable Agents~~ Managers, acting as sales ~~agent or directly~~ agents, and each Manager agrees to ~~the applicable Agents acting as principal from time~~ use its reasonable efforts to ~~time. Sales of the Units~~sell, ~~if any, through an Agent acting~~ as sales agent ~~or directly to an Agent acting as principal will be made by means of ordinary brokers’ transactions~~ for the Partnership, the Units on the ~~NYSE or otherwise at market prices prevailing at the time of sale, at prices related to prevailing market prices or at negotiated prices~~following terms. (bi) The Units are to be sold by one or more of the Managers on a daily basis or otherwise as shall be agreed to ~~an Agent on an agented basis~~ by the Partnership and such Manager on any day that (~~other than~~ A) is a single trading day, which shall mean any trading day on ~~which~~ the ~~NYSE is scheduled to close prior to its regular weekday closing time)(each~~NYSE, ~~a “Trading Day”) on which~~ (iB) the Partnership, through any of the individuals listed as “Authorized Individuals” on Schedule II hereto (which may be updated from time to time by a certificate from the Partnership to the Managers), has instructed such ~~Agent~~ Manager by telephone or by electronic mail to make such sales and (iiC) the Partnership has satisfied its ~~covenants and conditions~~ obligations under Section 6 of this Agreement. For the avoidance of doubt, instructions required by (B) may be issued as (1) standing instructions to be followed until rescinded by the Partnership, or (2) instructions with a specified ~~in Sections 4 and 5 hereof~~termination date or mechanism. ~~On any Trading Day, the~~ The Partnership ~~may sell Units through only one Agent and, if it determines to do so, shall instruct the applicable Agent by telephone (confirmed promptly by telecopy or email, which confirmation~~ will ~~be promptly acknowledged by such Agent) as to~~ designate the maximum ~~number~~ amount of the Units to be sold on by such ~~Trading Day~~ Manager daily as agreed to by such Manager, which maximum may be expressed as a number of Units, a percentage of total volume, or a formula or algorithm used to determine such maximum (in any event not in excess of the amount available for issuance under the Prospectus and the currently effective Registration Statement) and the minimum price per Unit at which such Units may be sold. Subject to the terms and conditions specified herein (including, without limitation, the accuracy of the representations and warranties of the Partnership and the performance by the Partnership of its covenants and other obligations, contained herein and the satisfaction of the additional conditions specified in Section 5 hereof), such ~~Agent~~ Manager shall use its ~~commercially~~ reasonable ~~efforts,~~ efforts consistent with its normal trading and sales practices ~~and applicable law and regulations,~~ to sell on a particular day all of the Units so designated for the sale by the Partnership ~~as sales agent in accordance with~~ on such ~~instruction. On any Trading Day~~day, and will not advertise trading volumes or communicate them to third-parties without the ~~Partnership shall give at least one business day’s prior written notice by telecopy or email to the Agents as to any change~~ consent of the ~~Agent through whom~~ Partnership. The gross sales ~~of Units as sales agent will be made. For the avoidance of doubt, the foregoing limitation shall not apply to sales solely to employees or security holders~~ price of the ~~Enable Entities or any~~ Units sold under this Section 3(a) shall be the market price of ~~their subsidiaries or to a trustee or other person acquiring~~ the Partnership’s Common Units ~~for~~ sold by such Manager under this Section 3(a) on the ~~accounts~~ NYSE at the time of sale of such ~~persons in which either Xxxxxxx Xxxxx, Barclays Capital Inc., Citigroup Global Markets Inc., Credit Suisse Securities~~ Units. (~~USA~~ii) LLC, Deutsche Bank Securities Inc., Xxxxxxx Xxxxx & Co. LLC, X.X. Xxxxxx Securities LLC, Mizuho Securities USA LLC, Xxxxxx Xxxxxxx & Co. LLC, MUFG Securities Americas Inc., RBC Capital Markets, LLC, SunTrust Xxxxxxxx Xxxxxxxx, Inc. or Xxxxx Fargo Securities, LLC is acting for the Partnership in a capacity other than as Agent under this Agreement. The Partnership ~~and the Agents each~~ Parties acknowledge and agree that (A) there can be no assurance that any ~~Agent~~ Manager will be successful in selling ~~any Units and~~ the Units, (B) ~~the Agents~~ no Manager will ~~not~~ incur any liability or obligation to the Partnership or any other person or entity if ~~they fail to~~ such Manager does not sell Units for any reason other than a failure by such Manager to use ~~their respective commercially~~ its reasonable ~~efforts,~~ efforts consistent with its normal trading and sales practices and applicable law and ~~regulations,~~ regulations to sell such Units as required by under this Agreement, and (C) no Manager shall be under any obligation to purchase Units on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by such Manager and the Partnership Parties. (ciii) The Partnership shall not authorize the issuance and sale of, and the relevant Manager shall not be obligated to use its reasonable efforts to sell, any Units not approved for sale by the Board of Directors of the General Partner (the “Board”), or an Officer of the ~~Agent through whom~~ General Partner duly authorized by the ~~sale of Units are~~ Board, and notified by such duly authorized officer to ~~be made as sales agent on~~ such Manager in writing. The Partnership or any ~~Trading Day~~ Manager may, upon notice to the other party hereto by electronic mail or telephone (and in the case of telephone, confirmed promptly by ~~telecopy or email, which confirmation will be promptly acknowledged by the receiving party~~electronic mail), suspend or terminate the offering of the Units ~~with respect to which such Agent is acting as sales agent~~ for any reason and at any time; provided, however, that such suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Units ~~sold, or with respect to Units that the Partnership has agreed to sell,~~ sold hereunder prior to the giving of such notice. (div) ~~The gross~~ Each of the Managers hereby covenants and agrees not to make sales ~~price~~ of ~~any~~ the Units ~~sold pursuant to this Agreement by the applicable Agent acting as sales agent~~ on behalf of the Partnership ~~shall~~ other than (A) by any method permitted by law deemed to be ~~equal to,~~ an “at the market” offering as defined in ~~the discretion of such Agent but subject to the specific instructions~~ Rule 415(a)(4) of the ~~Partnership~~Securities Act, including without limitation sales made directly on the NYSE, on any other existing trading market ~~price prevailing at the time of sale~~ for the Units ~~sold~~ or to or through a market maker, or (B) such other sales of the Units on behalf of the Partnership as shall be agreed by the Partnership and such ~~Agent on the NYSE or otherwise, at prices related~~ Manager pursuant to ~~prevailing market prices or at negotiated prices.~~ a Terms Agreement. (v) The compensation ~~payable~~ to ~~an Agent~~ each Manager for sales of the Units with respect to which such ~~Agent~~ Manager acts as sales agent under this Agreement shall ~~not exceed 2~~be up to 2.0% of the gross sales price ~~for~~ of the Units sold pursuant to this Section 3(a) and payable as described in the succeeding subsection (vi) below. The foregoing rate of compensation shall not apply when any Manager acts as principal, in which case the Partnership may sell Units to such ~~Units, which commission shall be~~ Manager as principal at a price mutually agreed upon at the relevant Applicable Time pursuant to ~~separately by such Agent and the Partnership~~a Terms Agreement. The remaining proceeds, after further deduction for any transaction ~~fees, transfer taxes or similar taxes or~~ fees imposed by any ~~Governmental Entity~~ governmental or self-regulatory organization in respect of such ~~sales~~sales (the “Transaction Fees”), shall constitute the net proceeds to the Partnership for such ~~sales~~ Units (the “Net Proceeds”). The applicable Agent shall notify the Partnership as promptly as practicable if any deduction referenced in the preceding sentence will be made. Notwithstanding the foregoing, in the event the Partnership engages an Agent as sales agent for the sale of Units that would constitute a “distribution” within the meaning of Rule 100 of Regulation M under the 1934 Act, the Partnership and such Agent will agree to compensation for such Agent that is customary for such sales. (evi) If Each Manager acting as sales agent ~~hereunder, the applicable Agent~~ hereunder shall provide written confirmation (which may be by facsimile or electronic mail) to the Partnership following the close of trading on the NYSE on each ~~Trading Day on~~ day in which the Units are sold under this ~~Agreement~~ Section 3(a) setting forth the number of the Units sold on such day, the aggregate gross sales proceeds of and the ~~Units, the aggregate~~ Net Proceeds to the ~~Partnership~~ Partnership, and the ~~aggregate~~ compensation payable by the Partnership to such ~~Agent~~ Manager with respect to such sales. At each ~~Agent~~Manager’s election, such compensation shall be set forth and invoiced in periodic statements from such ~~Agent~~ Manager to the Partnership, with payment to be made by the Partnership promptly after its receipt thereof. (fvii) Settlement for sales of the Units pursuant to this Section 3(a) will occur on the third business day following the date on which such sales are made (each such day, a “Settlement Date”). On each Settlement Date, the Units sold through a Manager for settlement on such date shall be issued and delivered by the Partnership to such Manager against payment of the aggregate gross sales proceeds less any Transaction Fees for the sale of such Units. Settlement for all such Units shall be effected by free delivery of the Units to such Manager’s account at The Depository Trust Company (“DTC”) in return for payments in same day funds delivered to the Partnership by federal funds wire transfer to the account designated by the Partnership. If the Partnership or its transfer agent (if applicable) shall default on its obligation to deliver the Units on any Settlement Date, the Partnership shall (A) indemnify and hold such Manager harmless against any loss, claim or damage arising from or as a result of such default by the Partnership and (B) pay such Manager any compensation to which it would otherwise be entitled absent such default. If a Manager acting as sales agent breaches this Agreement by failing to deliver the aggregate gross sales proceeds less any Transaction Fees to the Partnership on any Settlement Date for the Units delivered by the Partnership, such Manager will pay the Partnership interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to such Manager. (viii) At each Applicable Time, Settlement Date and Representation Date (as defined in Section 4(k)), the Partnership shall be deemed to have affirmed each representation and warranty contained in this Agreement as if such representation and warranty were made as of such date other than those representations and warranties made of a specific date as specified herein, but modified to incorporate the disclosures contained in the Registration Statement and the Prospectus as amended as of such date. Any obligation of a Manager to use its reasonable efforts to sell the Units on behalf of the Partnership shall be subject to the continuing accuracy of the representations and warranties of the Partnership herein (as modified in the manner described above), to the performance by the Partnership of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 of this Agreement. (b) If the Partnership wishes to issue and sell the Units pursuant to this Agreement but other than as set forth in Section 3(a) of this Agreement (each, a “Placement”), it will notify a Manager of the proposed terms of such Placement. If such Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Partnership wishes to accept amended terms, such Manager and the Partnership will enter into a Terms Agreement setting forth the terms of such Placement. The terms set forth in a Terms Agreement will not be binding on the Partnership or such Manager unless and until the Partnership and such Manager have each executed such Terms Agreement, accepting all of the terms of such Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of a Terms Agreement, the terms of such Terms Agreement will control. (c) Each sale of the Units to a Manager shall be made in accordance with the terms of this Agreement and, if applicable, a Terms Agreement, which will provide for the sale of such Units to, and the purchase thereof by, such Manager. A Terms Agreement may also specify certain provisions relating to the reoffering of such Units by such Manager. The commitment of such Manager to purchase the Units pursuant to any Terms Agreement shall be deemed to have been made on the basis of the representations and warranties of the Partnership herein contained and shall be subject to the terms and conditions herein set forth. Each Terms Agreement shall specify the number of the Units to be purchased by such Manager pursuant thereto, the price to be paid to the Partnership for such Units, any provisions relating to rights of, and default by, underwriters acting together with such Manager in the reoffering of the Units, and the time and date (each such time and date being referred to herein as a “Time of Delivery”) and place of delivery of and payment for such Units. Such Terms Agreement shall also specify any requirements for opinions of counsel, accountants’ letters and officers’ certificates pursuant to Section 6 of this Agreement and any other information or documents required by such Manager. (d) Under no circumstances shall the number and aggregate ~~gross sales price or number, as~~ amount of the ~~case may be, of~~ Units ~~offered or~~ sold pursuant to this ~~Agreement, or which are the subject of instructions to an Agent as sales agent pursuant to Section 2(b) hereof,~~ Agreement and any Terms Agreement exceed ~~the aggregate gross sales price or number, as the case may be, of Units~~ (i) ~~referred to~~ the aggregate amount set forth in ~~the preamble paragraph of this Agreement, as reduced by prior sales of Units under this Agreement~~Section 1, (ii) the number of Common Units available for ~~sale~~ issuance under the currently effective Registration Statement or (iii) ~~duly~~ the number and aggregate amount of the Units authorized from time to time to be issued and sold under this Agreement by the Partnership or approved for listing on the NYSE, and, in each case referred to in clause (ii) and (iii), notified to the Agents in writing. In addition, under no circumstances shall any Units with respect to which the Agent acts as sales agent be offered or soldBoard, or ~~be the subject of instructions to an Agent as sales agent pursuant to Section 2(b) hereof, at~~ a ~~price lower than the minimum price therefor~~ duly authorized ~~from time to time by the Partnership~~ Officer, and notified to ~~the Agents~~ such Manager in writing. The Agents shall have no responsibility for maintaining records with respect to Units available for sale under the Registration Statement or for determining the aggregate gross sales price, number or minimum price of Units duly authorized by the Partnership. (ge) If either party has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the ~~1934~~ Exchange Act are not satisfied with respect to the ~~Partnership or the~~ Units, ~~the Partnership~~ it shall promptly notify the ~~Agents and future offers~~ other party and sales of the Units ~~through the Agents on an agented basis~~ under this ~~ATM Equity OfferingSM Sales~~ Agreement and any Terms Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party. (hf) ~~Settlement for sales of Units will occur (i) prior~~ Subject to ~~September 5, 2017, on~~ the ~~third business day that is also a Trading Day following the trade date on which such sales are made~~ limitations set forth herein and ~~(ii) on and after September 5, 2017, on the second business day that is also a Trading Day following the trade date on which such sales were made, in either case unless another date shall~~ as may be mutually agreed ~~to in writing~~ upon by the Partnership and ~~the applicable Agents (each such day~~any Manager, ~~a “Settlement Date”). On each Settlement Date for the sale~~ no sales of Units ~~through an Agent as sales agent~~shall take place, such Units shall be delivered by the Partnership to such Agent in book-entry form to such Agent’s account at The Depository Trust Company against payment by such Agent of the Net Proceeds from the sale of such Units in same day funds delivered to an account designated by the Partnership. If the Partnership shall default on its obligation to deliver Units through an Agent as sales agent on any Settlement Date, the Partnership shall (i) indemnify and hold such Agent harmless against any loss, claim or damage arising from or as a result of such default by the Partnership and (ii) pay such Agent any commission to which it would otherwise be entitled absent such default. (i) Notwithstanding any other provision of this Agreement, the Partnership shall not ~~offer or sell, or instruct an Agent to offer or sell, any Units through an Agent as sales agent (and, by notice to~~ request the ~~Agents given by telephone (confirmed promptly by telecopy or email), shall cancel any instructions for any such offer or~~ sale of any Units ~~prior to the commencement of the periods referenced below)~~that would be sold, and ~~the Agents~~ such Manager shall not be obligated to ~~make any such offer or sale of Units~~sell, ~~(i)~~ during any period in which the Partnership ~~is, or could be deemed to be,~~ is in possession of material non-public information or (ii) except as provided in Section 2(j) hereof, at any time during the period commencing on the 10th business day prior to the time the Partnership issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the time that is 24 hours after the time that the Partnership files a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcementinformation. (j) Notwithstanding clause (ii) of Section 2(i) hereof, if the Partnership wishes to offer or sell Units to an Agent as sales agent at any time during the period from and including an Earnings Announcement through and including the corresponding Filing Time, the Partnership shall first (i) prepare and deliver to such Agent (with a copy to counsel for the Agents) a Current Report on Form 8-K that includes substantially the same financial and related information (together with management’s discussion and analysis thereof) that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to such Agent, and, prior to its filing, obtain the written consent of such Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide such Agent with the officers’ certificate, opinions and letters of counsel and accountants’ letter specified in Section 3(o), (p) and (q), respectively, hereof, (iii) afford such Agent the opportunity to conduct a due diligence review in accordance with Section 3(t) hereof prior to filing such Earnings 8-K and (iv) file such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificate, opinion or letter of counsel or accountants’ letter pursuant to this Section 2(j) shall not relieve the Partnership from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Section 3(o), (p) and (q), respectively, hereof, and (B) this Section 2(j) shall in no way affect or limit the operation of clause (i) of Section 2(i) hereof, which shall have independent application. (k) The Agents shall not have any obligation to purchase Units as principal, whether from the Partnership or otherwise, unless the Partnership and the applicable Agents agree as set forth below. Units purchased from the Partnership by the applicable Agents, individually or in a syndicate, as principal shall be made in accordance with terms agreed upon between such Agents and the Partnership as evidenced by a Terms Agreement. The applicable Agents’ commitment to purchase Units from the Partnership as principal shall be deemed to have been made on the basis of the accuracy of the representations and warranties of the Partnership, and performance by the Partnership of its covenants and other obligations, herein contained and shall be subject to the terms and conditions herein set forth. At the time of each Terms Agreement, the applicable Agents shall specify the requirements, if any, for the officers’ certificate, opinions and letters of counsel and accountants’ letter pursuant to Section 3(o), (p) and (q), respectively, hereof. In the event of a conflict between the terms of this ATM Equity OfferingSM Sales Agreement and a Terms Agreement, the terms of such Terms Agreement shall control.

Appears in 1 contract

Samples: Equity Distribution Agreement (Tesoro Logistics Lp)

Sale and Delivery of Units. (a) ~~Subject~~ On the basis of the representations, warranties and agreements herein contained, and subject to the terms and conditions herein set ~~forth herein~~forth, the Partnership agrees to issue and sell ~~Units~~ through or to the Managers, as sales agents and/or principals, as and when it provides instructions, in its discretion, for the sale of Units, and each Manager agrees to use its commercially reasonable efforts, consistent with its normal trading and sales practices and applicable ~~Agents acting~~ law and regulations, to sell, as sales agent for the Partnership, the Units on the following terms. (i) The Units are to be sold by one of the Managers on a daily basis or ~~directly~~ otherwise as shall be mutually agreed upon by the Partnership and the Managers on any trading day for the NYSE (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time) (each, a “Trading Day”), on which (A) the ~~applicable Agents acting~~ Partnership, through any of the individuals listed as ~~principal~~ authorized representatives of the Partnership on Schedule B hereto, as such Schedule B may be amended from time to ~~time. Sales~~ time (the “Authorized Partnership Representatives”), has instructed any Manager by telephone (confirmed promptly by electronic mail, with a copy to each of the other Authorized Partnership Representatives at such time) to make such sales and (B) the Partnership has satisfied its obligations under Sections 4, 5 and 6 hereof. On a Trading Day that the Partnership wishes to sell Units, the Partnership may sell Units through only one Manager and, if ~~any~~it determines to do so, the Partnership will designate in a notice delivered by electronic mail substantially in the form attached hereto as Exhibit 3(a)(i) the maximum amount of the Units to be sold by such Manager daily as agreed to by such Manager (in any event not in excess of the amount available for issuance under the Prospectus and the Registration Statement or in an amount in excess of the amount of Units authorized from time to time to be issued and sold under this Agreement or, together with all sales of Units under this Agreement, any minimum price below which sales of Units may not be effected) and any other limitations specified by the Partnership and mutually agreed by such Manager. On any Trading Day, the Partnership shall give at least one business day’s prior notice by telephone (confirmed promptly by electronic mail) to the Manager as to any change of the Manager through ~~an Agent acting~~ whom sales of Units as sales agent ~~or directly to an Agent acting as principal~~ will be made. The Manager through whom sales of Units as sales agent are then being made pursuant to this Section 3(a) is referred to as the “Selling Manager”. For the avoidance of doubt, the foregoing limitation shall not apply to sales solely to employees or other security holders of the Partnership or its affiliates or to a trustee or other person acquiring Units for the accounts of such persons in which a Manager is acting for the Partnership in a capacity other than as Manager under this Agreement. Subject to the terms and conditions of this Section 3(a), the Managers may sell Units by any method permitted by law deemed to be an At the Market Offering (as defined below), including, without limitation, sales made by means of ordinary brokers’ ~~transactions on the NYSE~~ transactions, to or ~~otherwise~~ through a market maker at market prices prevailing at the time of sale, at prices related to prevailing market prices or at negotiated prices. (b) The Units are to be sold to an Agent on an agented basis on any day (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time)(each, a “Trading Day”) on which (i) the Partnership has instructed such Agent to make such sales and (ii) the Partnership has satisfied its covenants and conditions specified in Sections 4 and 5 hereof. On any Trading Day, the Partnership may sell Units through only one Agent and, if it determines to do so, shall instruct the applicable Agent by telephone (confirmed promptly by telecopy or email, which confirmation will be promptly acknowledged by such Agent) as to the maximum number of Units to be sold on such Trading Day and the minimum price per Unit at which such Units may be sold. Subject to the terms and conditions of this Section 3(a) and the other terms and conditions specified herein (including, without limitation, the accuracy of the representations and warranties of the Partnership and the performance by the Partnership of its covenants and other obligations, contained herein and the satisfaction of the additional conditions specified in Section 5 6 hereof), ~~such Agent~~ the applicable Manager shall use its commercially reasonable ~~efforts, consistent with its normal trading~~ efforts to offer and ~~sales practices and applicable law and regulations, to~~ sell all of the Units so designated; provided, however, that the Managers shall have no obligation to offer or sell any Units, and the Partnership acknowledges and agrees that the Managers shall have no such obligation, in the event that an offer or sale of the Units on behalf of the Partnership may in the reasonable judgment of a Manager constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or such Manager reasonably believes that it may be deemed to be an “underwriter” under the Securities Act in a transaction that is other than by means of ordinary brokers’ transactions between members of the NYSE that qualify for delivery of a Prospectus to the NYSE in accordance with Rule 153 under the Securities Act (such transactions are hereinafter referred to as “At the Market Offerings”). (ii) Notwithstanding the foregoing, the Partnership, through any of the Authorized Partnership Representatives, may instruct the Managers by telephone (confirmed promptly by electronic mail) not to sell the Units if such sales cannot be effected at or above the price designated by the Partnership ~~as sales agent~~ in ~~accordance with~~ any such instruction. ~~On any Trading Day~~In addition, the Partnership ~~shall give at least one business day’s prior written notice by telecopy~~ or email to the Agents as to any change of the Agent through whom sales of Units as sales agent will be made. For the avoidance of doubt, the foregoing limitation shall not apply to sales solely to employees or security holders of the Enable Entities or any of their subsidiaries or to a trustee or other person acquiring Units for the accounts of such persons in which either Xxxxxxx Xxxxx, Barclays Capital Inc., Citigroup Global Markets Inc., Credit Suisse Securities (USA) LLC, Deutsche Bank Securities Inc., Xxxxxxx Xxxxx & Co. LLC, X.X. Xxxxxx Securities LLC, Mizuho Securities USA LLC, Xxxxxx Xxxxxxx & Co. LLC, MUFG Securities Americas Inc., RBC Capital Markets, LLC, SunTrust Xxxxxxxx Xxxxxxxx, Inc. or Xxxxx Fargo Securities, LLC is acting for the Partnership in a capacity other than as Agent under this Agreement. The Partnership and the Agents each acknowledge and agree that (A) there can be no assurance that any Agent will be successful in selling any Units and (B) the Agents will not incur any liability or obligation to the Partnership if they fail to sell Units for any reason other than a failure to use their respective commercially reasonable efforts, consistent with its normal trading and sales practices and applicable law and regulations, to sell such Units as required by this Agreement. (c) The Partnership or the Agent through whom the sale of Units are to be made as sales agent on any Trading Day Managers may, upon notice to the other party hereto by telephone (confirmed promptly by ~~telecopy or email, which confirmation will be promptly acknowledged by the receiving party~~electronic mail), suspend the offering of the Units ~~with respect to which such Agent is acting as sales agent~~ for ~~any reason and at any time~~a specified period (a “Suspension Period”); provided, however, that such ~~suspension~~ Suspension Period shall not affect or impair the parties’ respective obligations with respect to the Units ~~sold, or with respect to Units that the Partnership has agreed to sell,~~ sold hereunder prior to the giving of such ~~notice~~notice and provided, further, that there shall be no obligations under Sections 4(n), 4(o), 4(p) and 4(q) with respect to the delivery of certificates, opinions, or comfort letters to the Managers during a Suspension Period and that such obligations shall recommence on the termination of the Suspension Period. (diii) ~~The gross~~ Each of the Managers hereby covenants and agrees not to make any sales ~~price~~ of ~~any~~ the Units ~~sold~~ on behalf of the Partnership, pursuant to this ~~Agreement~~ Section 3(a), other than (A) by means of At the ~~applicable Agent acting~~ Market Offerings and (B) such other sales of the Units on behalf of the Partnership in its capacity as ~~sales~~ agent of the Partnership as shall be ~~equal to~~mutually agreed upon by the Partnership and such Manager. (iv) The compensation to each Manager, ~~in the discretion of such Agent but subject to the specific instructions~~ as an agent of the Partnership, the market price prevailing at the time of sale for the Units sold by such Agent on the NYSE or otherwise, at prices related to prevailing market prices or at negotiated prices. The compensation payable to an Agent for sales of the Units ~~with respect~~ shall be at a mutually agreed rate, not to ~~which such Agent acts as sales agent shall not~~ exceed 22.0% of the gross sales price ~~for such Units, which commission shall be agreed~~ of the Units sold pursuant to ~~separately by such Agent and the Partnership~~this Section 3(a). The remaining proceeds, after further deduction for any transaction ~~fees, transfer taxes or similar taxes or~~ fees imposed by any ~~Governmental Entity~~ governmental or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Partnership for such ~~sales~~ Units (the “Net Proceeds”). The applicable Agent shall notify the Partnership as promptly as practicable if any deduction referenced in the preceding sentence will be made. Notwithstanding the foregoing, in the event the Partnership engages an Agent as sales agent for the sale of Units that would constitute a “distribution” within the meaning of Rule 100 of Regulation M under the 1934 Act, the Partnership and such Agent will agree to compensation for such Agent that is customary for such sales. (ev) If acting as sales agent hereunder, ~~the applicable Agent~~ each Manager shall provide written confirmation to the Partnership (which may be by electronic mail) as soon as is reasonably practicable following the close of trading on the NYSE on each ~~Trading Day on~~ day in which the Units are sold ~~under~~ pursuant to this ~~Agreement~~ Section 3(a) setting forth (i) the number of Units sold on such day, (ii) the ~~aggregate gross sales proceeds of the Units, the aggregate~~ Net Proceeds to the ~~Partnership~~ Partnership, and (iii) the ~~aggregate~~ compensation payable by the Partnership to such ~~Agent~~ Manager with respect to such sales. At each ~~Agent~~Manager’s ~~election~~election and subject to the prior written consent of the Partnership, such compensation shall be set forth and invoiced in periodic statements from such ~~Agent~~ Manager to the Partnership, with payment to be made by the Partnership promptly after its receipt thereof. (fvi) Settlement for sales of the Units pursuant to this Section 3(a) (i) prior to September 5, 2017, will occur on the third business day that is also a trading day on the NYSE following the date on which such sales are made and (ii) on and after September 5, 2017, will occur on the second business day that is also a trading day on the NYSE following the date on which such sales are made (each such date, a “Settlement Date”). On each Settlement Date, the Units sold through a Manager for settlement on such date shall be issued and delivered by the Partnership to such Manager against payment of the Net Proceeds for the sale of such Units. Settlement for all such Units shall be effected by free delivery of the Units by the Partnership or its transfer agent to such Manager’s account, or to the account of such Manager’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DTC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered units in good deliverable form, in return for payments in same day funds delivered to the account designated by the Partnership. If the Partnership, or its transfer agent (if applicable), shall default upon its obligation to deliver the Units on any Settlement Date, in addition to and in no way limiting the rights and obligations set forth in Section 7(a) hereof, the Partnership shall (A) indemnify and hold such Manager harmless against any actual loss, claim or damage arising from or as a result of such default by the Partnership and (B) pay such Manager any commission to which it would otherwise be entitled absent such default. The Authorized Partnership Representatives shall be the contact persons for the Partnership for all matters related to the settlement of the transfer of the Units through DTC for purposes of this Section 3(a)(vi). (vii) At each Representation Date, the Partnership shall be deemed to have affirmed each representation and warranty contained in this Agreement. Any obligation of any Manager to use its commercially reasonable efforts to sell the Units on behalf of the Partnership shall be subject to the continuing accuracy of the representations and warranties of the Partnership herein, to the performance by the Partnership of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereof. (b) If the Partnership wishes to issue and sell the Units other than as set forth in Section 3(a) hereof, it will notify a Manager of the proposed terms of such issuance and sale (each, a “Placement”). If such Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Partnership, wishes to accept amended terms, the Partnership and such Manager will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the terms of such Terms Agreement will control. (c) Under no circumstances shall the aggregate gross sales ~~price or number, as~~ proceeds of the ~~case may be, of~~ Units ~~offered or~~ sold pursuant to this ~~Agreement, or which are the subject of instructions to an Agent as sales agent pursuant to Section 2(b) hereof,~~ Agreement exceed the ~~aggregate gross sales price or number, as~~ lesser of (A) the ~~case may be, of Units~~ amount set forth in Section 1 hereof and (iB) ~~referred to in~~ the ~~preamble paragraph of this Agreement, as reduced by prior sales of Units under this Agreement, (ii)~~ amount available for offer and sale under the Registration ~~Statement or (iii) duly~~ Statement, nor shall the aggregate amount of Units sold pursuant to this Agreement exceed the amount of Units authorized ~~from time to time~~ to be issued and sold from time to time under this Agreement by the ~~Partnership or approved for listing on~~ Board of Directors of the ~~NYSE, and, in each case referred to in clause (ii) and (iii), notified to~~ general partner of the ~~Agents in writing. In addition, under no circumstances shall any Units with respect to which the Agent acts as sales agent be offered or sold~~Partnership, or ~~be the subject of instructions to an Agent as sales agent pursuant to Section 2(b) hereof, at~~ a ~~price lower than the minimum price therefor~~ duly authorized ~~from time to time by the Partnership~~ committee thereof, and notified to the ~~Agents~~ Managers in writing. The ~~Agents~~ Managers shall have no responsibility for maintaining records with respect to Units available for sale under the Registration Statement or for determining the aggregate gross sales price, number or minimum price of Units duly authorized by the Partnership. (gd) If Each sale of the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the 1934 Act are not satisfied with respect to the Partnership or the Units, the Partnership shall promptly notify the Agents and future offers and sales of Units through ~~the Agents on an agented basis under this ATM Equity OfferingSM Sales Agreement shall be suspended until that~~ or other exemptive provisions have been satisfied in the judgment of each party. (h) Settlement for sales of Units will occur (i) prior to September 5, 2017, on the third business day that is also a Trading Day following the trade date on which such sales are made and (ii) on and after September 5, 2017, on the second business day that is also a Trading Day following the trade date on which such sales were made, in either case unless another date shall be agreed to in writing by the Partnership and the applicable Agents (each such day, a “Settlement Date”). On each Settlement Date for the sale of Units through an Agent as sales agent, such Units shall be delivered by the Partnership to such Agent in book-entry form to such Agent’s account at The Depository Trust Company against payment by such Agent of the Net Proceeds from the sale of such Units in same day funds delivered to an account designated by the Partnership. If the Partnership shall default on its obligation to deliver Units through an Agent as sales agent on any Settlement Date, the Partnership shall (i) indemnify and hold such Agent harmless against any loss, claim or damage arising from or as a result of such default by the Partnership and (ii) pay such Agent any commission to which it would otherwise be entitled absent such default. (i) Notwithstanding any other provision of this Agreement, the Partnership shall not offer or sell, or instruct an Agent to offer or sell, any Units through an Agent as sales agent (and, by notice to the Agents given by telephone (confirmed promptly by telecopy or email), shall cancel any instructions for any such offer or sale of any Units prior to the commencement of the periods referenced below), and the Agents shall not be obligated to make any such offer or sale of Units, (i) during any period in which the Partnership is, or could be deemed to be, in possession of material non-public information or (ii) except as provided in Section 2(j) hereof, at any time during the period commencing on the 10th business day prior to the time the Partnership issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the time that is 24 hours after the time that the Partnership files a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement. (j) Notwithstanding clause (ii) of Section 2(i) hereof, if the Partnership wishes to offer or sell Units to an Agent as sales agent at any time during the period from and including an Earnings Announcement through and including the corresponding Filing Time, the Partnership shall first (i) prepare and deliver to such Agent (with a copy to counsel for the Agents) a Current Report on Form 8-K that includes substantially the same financial and related information (together with management’s discussion and analysis thereof) that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to such Agent, and, prior to its filing, obtain the written consent of such Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide such Agent with the officers’ certificate, opinions and letters of counsel and accountants’ letter specified in Section 3(o), (p) and (q), respectively, hereof, (iii) afford such Agent the opportunity to conduct a due diligence review in accordance with Section 3(t) hereof prior to filing such Earnings 8-K and (iv) file such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificate, opinion or letter of counsel or accountants’ letter pursuant to this Section 2(j) shall not relieve the Partnership from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Section 3(o), (p) and (q), respectively, hereof, and (B) this Section 2(j) shall in no way affect or limit the operation of clause (i) of Section 2(i) hereof, which shall have independent application. (k) The Agents shall not have any obligation to purchase Units as principal, whether from the Partnership or otherwise, unless the Partnership and the applicable Agents agree as set forth below. Units purchased from the Partnership by the applicable Agents, individually or in a syndicate, as principal Manager shall be made in accordance with the terms ~~agreed upon between such Agents and the Partnership as evidenced by~~ of this Agreement or, if applicable, a Terms Agreement. The applicable ~~Agents’ commitment~~ Manager’s commitment, if any, to purchase Units from the Partnership as principal shall be deemed to have been made on the basis of the accuracy of the representations and warranties of the Partnership, and performance by the Partnership of its covenants and other obligations, herein contained and shall be subject to the terms and conditions herein set forth. At the time of each Terms Agreement, the applicable ~~Agents~~ Manager shall specify the requirements, if any, for the officers’ certificate, opinions and letters of counsel and ~~accountants’ letter~~ letters of accountants pursuant to Section ~~3(o~~4(n), (po) and (q), respectively, hereof~~. In~~ . (e) Subject to the ~~event~~ limitations set forth herein and as may be mutually agreed upon by the Partnership and the Managers, sales effected pursuant to this Agreement may not be requested by the Partnership and need not be made by any Manager (i) during the 14 calendar days prior to the date (each, an “Announcement Date”) on which the Partnership shall issue a press release containing, or shall otherwise publicly announce, its earnings, revenues or other results of operations (each, an “Earnings Announcement”), (ii) at any time from and including an Announcement Date through and including the later to occur of (A) the time that is 24 hours after the time that the Partnership files a ~~conflict between~~ Quarterly Report on Form 10-Q or an Annual Report on Form 10-K that includes consolidated financial statements as of and for the same period or periods, as the case may be, covered by such Earnings Announcement, and (B) the applicable Bring-Down Delivery Date of the Partnership referenced in Section 4(q) below, or (iii) during any other period in which the Partnership is, or could be deemed to be, in possession of material non-public information. (f) The Partnership acknowledges and agrees that (i) there can be no assurance that any Manager will be successful in selling the Units, (ii) no Manager will incur liability or obligation to the Partnership or any other person or entity if it does not sell Units for any reason other than a failure by such Manager to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Units in accordance with the terms of this ~~ATM Equity OfferingSM Sales~~ Agreement, and (iii) no Manager shall be under any obligation to purchase Units on a principal basis pursuant to this Agreement except as otherwise specifically agreed by such Manager and the Partnership pursuant to a Terms Agreement. (g) If any of the Partnership or the Managers has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Units, it shall promptly notify the ~~terms~~ other party and sales of ~~such Terms~~ the Units under this Agreement shall ~~control~~be suspended until that or other exemptive provisions have been satisfied in the judgment of each party.

Appears in 1 contract

Samples: Equity Distribution Agreement (Magellan Midstream Partners Lp)

Sale and Delivery of Units. (a) Subject to the terms and conditions set forth herein, the Partnership agrees to issue and sell Units through the ~~applicable Agents~~ Agent acting as sales agent or directly to the ~~applicable Agents~~ Agent acting as principal from time to time. Sales of the Units, if any, through an the Agent acting as sales agent or directly to an the Agent acting as principal will be made by means of ordinary brokers’ transactions on the NYSE or otherwise at market prices prevailing at the time of sale, at prices related to prevailing market prices or at negotiated prices. (b) The Units are to be sold to an the Agent on an agented basis on any day (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time)(each, a “Trading Day”) on which (i) the Partnership has instructed ~~such~~ the Agent to make such sales and (ii) the Partnership has satisfied its covenants and conditions specified in Sections 4 and 5 hereof. On any Trading Day, the Partnership may sell Units through ~~only one~~ the Agent and, if it determines to do so, shall instruct the ~~applicable~~ Agent by telephone (confirmed promptly by ~~telecopy or~~ email, which confirmation will be promptly acknowledged by ~~such~~ the Agent) as to the maximum number of Units to be sold on such Trading Day and the minimum price per Unit at which such Units may be sold. Subject to the terms and conditions specified herein (including, without limitation, the accuracy of the representations and warranties of the Partnership Parties and the performance by the Partnership Parties of ~~its~~ their covenants and other obligations, contained herein and the satisfaction of the additional conditions specified in Section 5 hereof), ~~such~~ the Agent shall use its commercially reasonable efforts, consistent with its normal trading and sales practices and applicable law and regulations, to sell all of the Units so designated by the Partnership as sales agent in accordance with such instruction. On any Trading Day, the Partnership shall give at least one business day’s prior written notice by telecopy or email to the Agents as to any change of the Agent through whom sales of Units as sales agent will be made. For the avoidance of doubt, the foregoing limitation shall not apply to sales solely to employees or security holders of the Enable Entities or any of their subsidiaries or to a trustee or other person acquiring Units for the accounts of such persons in which either Xxxxxxx Xxxxx, Barclays Capital Inc., Citigroup Global Markets Inc., Credit Suisse Securities (USA) LLC, Deutsche Bank Securities Inc., Xxxxxxx Xxxxx & Co. LLC, X.X. Xxxxxx Securities LLC, Mizuho Securities USA LLC, Xxxxxx Xxxxxxx & Co. LLC, MUFG Securities Americas Inc., RBC Capital Markets, LLC, SunTrust Xxxxxxxx Xxxxxxxx, Inc. or Xxxxx Fargo Securities, LLC is acting for the Partnership in a capacity other than as Agent under this Agreement. The Partnership and the ~~Agents~~ Agent each acknowledge and agree that (A) there can be no assurance that ~~any~~ the Agent will be successful in selling any Units and (B) the ~~Agents~~ Agent will not incur any liability or obligation to the Partnership if they fail to sell Units for any reason other than a failure to use ~~their respective~~ its commercially reasonable efforts, consistent with its normal trading and sales practices and applicable law and regulations, to sell such Units as required by this Agreement. (c) The Partnership or the Agent ~~through whom the sale of Units are to be made as sales agent on any Trading Day~~ may, upon notice to the other party hereto by telephone (confirmed promptly by ~~telecopy or~~ email, which confirmation will be promptly acknowledged by the receiving party), suspend the offering of Units ~~with respect to which such Agent is acting as sales agent~~ for any reason and at any time; provided, however, that such suspension shall not affect or impair the parties’ respective obligations with respect to the Units sold, or with respect to Units that the Partnership has agreed to sell, hereunder prior to the giving of such notice. (d) The gross sales price of any Units sold pursuant to this Agreement by the ~~applicable~~ Agent acting as sales agent of the Partnership shall be equal to, in the discretion of ~~such~~ the Agent but subject to the specific instructions of the Partnership, the market price prevailing at the time of sale for the Units sold by ~~such~~ the Agent on the NYSE or otherwise, at prices related to prevailing market prices or at negotiated prices. The compensation payable to an the Agent for sales of Units ~~with respect~~ shall be up to ~~which such Agent acts as sales agent shall not exceed 2~~2.0% of the gross sales price for such ~~Units, which commission shall be~~ Units as mutually agreed to ~~separately~~ in writing by ~~such~~ the Agent and the Partnership. The remaining proceeds, after further deduction for any transaction fees, transfer taxes or similar taxes or fees imposed by any Governmental Entity or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Partnership for such sales (the “Net Proceeds”). The ~~applicable~~ Agent shall notify the Partnership as promptly as practicable if any deduction referenced in the preceding sentence will be made. Notwithstanding the foregoing, in the event the Partnership engages an the Agent as sales agent for the sale of Units that would constitute a “distribution” within the meaning of Rule 100 of Regulation M under the 1934 Act, the Partnership and ~~such~~ the Agent will agree to compensation for ~~such~~ the Agent that is customary for such sales. (e) ~~If acting as sales agent hereunder, the applicable~~ The Agent shall provide written confirmation to the Partnership following the close of trading on the NYSE on each Trading Day on which Units are sold under this Agreement setting forth the number of Units sold on such day, the aggregate gross sales proceeds of the Units, the aggregate Net Proceeds to the Partnership and the aggregate compensation payable by the Partnership to ~~such~~ the Agent with respect to such sales. At each Agent’s election, such compensation shall be set forth and invoiced in periodic statements from such Agent to the Partnership, with payment to be made by the Partnership promptly after its receipt thereof. (f) Under no circumstances shall the aggregate gross sales price or number, as the case may be, of Units offered or sold pursuant to this Agreement, or which are the subject of instructions to an the Agent as sales agent pursuant to Section 2(b) hereof, exceed the aggregate gross sales price or number, as the case may be, of Units (i) referred to in the preamble paragraph of this Agreement, as reduced by prior sales of Units under this Agreement, (ii) available for sale under the Registration Statement or (iii) duly authorized from time to time to be issued and sold under this Agreement by the Partnership or approved for listing on the NYSE, and, in each case referred to in clause (ii) and (iii), notified to the ~~Agents~~ Agent in writing. In addition, under no circumstances shall any Units ~~with respect to which the Agent acts as sales agent~~ be offered or sold, or be the subject of instructions to an the Agent as sales agent pursuant to Section 2(b) hereof, at a price lower than the minimum price therefor duly authorized from time to time by the Partnership and notified to the ~~Agents~~ Agent in writing. The ~~Agents~~ Agent shall have no responsibility for maintaining records with respect to the Units available for sale under the Registration Statement or for determining the aggregate gross sales price, number or minimum price of Units duly authorized by the Partnership. (g) If the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the 1934 Act are not satisfied with respect to the Partnership or the Units, the Partnership shall promptly notify the ~~Agents~~ Agent and future offers and sales of Units through the ~~Agents~~ Agent on an agented basis under this ~~ATM Equity OfferingSM Sales~~ Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party. (h) Settlement for sales of Units will occur ~~(i) prior to September 5, 2017,~~ on the third business day that is also a Trading Day following the trade date on which such sales are ~~made and (ii) on and after September 5, 2017, on the second business day that is also a Trading Day following the trade date on which such sales were~~ made, ~~in either case~~ unless another date shall be agreed to in writing by the Partnership and the ~~applicable Agents~~ Agent (each such day, a “Settlement Date”). On each Settlement Date for the sale of Units through an the Agent as sales agent, such Units shall be delivered by the Partnership to ~~such~~ the Agent in book-entry form to ~~such~~ the Agent’s account at The Depository Trust Company against payment by ~~such~~ the Agent of the Net Proceeds from the sale of such Units in same day funds delivered to an account designated by the Partnership. If the Partnership shall default on its obligation to deliver Units through an the Agent as sales agent on any Settlement Date, the Partnership shall (i) indemnify and hold ~~such~~ the Agent harmless against any loss, claim or damage arising from or as a result of such default by the Partnership and (ii) pay ~~such~~ the Agent any commission to which it would otherwise be entitled absent such default. (i) Notwithstanding any other provision of this Agreement, the Partnership shall not offer or sell, or instruct an the Agent to offer or sell, any Units through an the Agent as sales agent (and, by notice to the ~~Agents~~ Agent given by telephone (confirmed promptly by ~~telecopy or~~ email), shall cancel any instructions for any such offer or sale of any Units prior to the commencement of the periods referenced below), and the ~~Agents~~ Agent shall not be obligated to make any such offer or sale of Units, (i) during any period in which the Partnership is, or could be deemed to be, in possession of material non-public information or (ii) except as provided in Section 2(j) hereof, at any time during the period commencing on the 10th business day prior to the time the Partnership issues a press release containing, or shall otherwise publicly announce, its earnings, revenues or other operating results for a fiscal period or periods (each, an “Earnings Announcement”) through and including the time that is 24 hours after the time that the Partnership files a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K (a “Filing Time”) that includes consolidated financial statements as of and for the same fiscal period or periods, as the case may be, covered by such Earnings Announcement. (j) Notwithstanding clause (ii) of Section 2(i) hereof, if the Partnership wishes to offer or sell Units to an the Agent as sales agent at any time during the period from and including an Earnings Announcement through and including the corresponding Filing Time, the Partnership shall first (i) prepare and deliver to ~~such~~ the Agent (with a copy to counsel for the ~~Agents~~Agent) a Current Report on Form 8-K that includes substantially the same financial and related information (together with management’s discussion and analysis thereof) that was included in such Earnings Announcement (other than any earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to ~~such~~ the Agent, and, prior to its filing, obtain the written consent of ~~such~~ the Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide ~~such~~ the Agent with the officers’ certificate, opinions and letters of counsel and accountants’ letter specified in Section 3(o), (p) and (q), respectively, hereof, (iii) afford ~~such~~ the Agent the opportunity to conduct a due diligence review in accordance with Section 3(t) hereof prior to filing such Earnings 8-K and (iv) file such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificate, opinion or letter of counsel or accountants’ letter pursuant to this Section 2(j) shall not relieve the Partnership from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Section 3(o), (p) and (q), respectively, hereof, and (B) this Section 2(j) shall in no way affect or limit the operation of clause (i) of Section 2(i) hereof, which shall have independent application. (k) The ~~Agents~~ Agent shall not have any obligation to purchase Units as principal, whether from the Partnership or otherwise, unless the Partnership and the ~~applicable Agents~~ Agent agree as set forth below. Units purchased from the Partnership by the ~~applicable Agents, individually or in a syndicate,~~ Agent as principal shall be made in accordance with terms agreed upon between ~~such Agents~~ the Agent and the Partnership as evidenced by a Terms Agreement. The ~~applicable Agents’~~ Agent’s commitment to purchase Units from the Partnership as principal shall be deemed to have been made on the basis of the accuracy of the representations and warranties of the ~~Partnership~~Partnership Parties, and performance by the Partnership Parties of ~~its~~ their covenants and other obligations, herein contained and shall be subject to the terms and conditions herein set forth. At the time of each Terms Agreement, the ~~applicable Agents~~ Agent shall specify the requirements, if any, for the officers’ certificate, opinions and letters of counsel and accountants’ letter pursuant to Section 3(o), (p) and (q), respectively, hereof. In the event of a conflict between the terms of this ~~ATM Equity OfferingSM~~ Sales Agreement and a Terms Agreement, the terms of such Terms Agreement shall control.

Appears in 1 contract

Samples: Sales Agreement (TransMontaigne Partners L.P.)

Appears in 1 contract

Samples: Equity Distribution Agreement (Phillips 66 Partners Lp)

Sale and Delivery of Units. (a) ~~Subject~~ On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set ~~forth herein~~forth, the Partnership agrees to issue and sell ~~Units~~ through or to the ~~applicable Agents acting~~ Managers, as sales agents and/or principals, as and when it provides instructions, in its discretion, for the sale of Units, and each Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Partnership, the Units on the following terms. (i) The Units are to be sold by one of the Managers on a daily basis or ~~directly~~ otherwise as shall be mutually agreed upon by the Partnership and the Managers on any day that (A) is a trading day for the NASDAQ (other than a day on which the NASDAQ is scheduled to close prior to its regular weekday closing time), (B) the ~~applicable Agents acting~~ Partnership, through any of the individuals listed as ~~principal~~ authorized representatives of the Partnership on Schedule B hereto (the “Authorized Partnership Representatives”), has instructed any Manager by telephone (confirmed promptly by electronic mail) to make such sales and (C) the Partnership has satisfied its obligations under Section 6 hereof. The Partnership will designate in a notice delivered by electronic mail substantially in the form attached hereto as Exhibit 3(a)(i) the maximum amount of the Units to be sold by any Manager daily as agreed to by such Manager (in any event not in excess of the amount available for issuance under the Prospectus and the Registration Statement or in an amount in excess of the amount of Units authorized from time to ~~time~~time to be issued and sold under this Agreement or, together with all sales of Units under this Agreement, any minimum price below which sales of Units may not be effected and any other limitations specified by the Partnership and mutually agreed by such Manager. ~~Sales~~ Subject to the terms and conditions of this Section 3(a), the ~~Units~~Managers may sell Units by any method permitted by law deemed to be an At the Market Offering (as defined below), ~~if any~~including, ~~through an Agent acting as~~ without limitation, sales ~~agent or directly to an Agent acting as principal will be~~ made by means of ordinary brokers’ ~~transactions on the NYSE~~ transactions, to or ~~otherwise~~ through a market maker at market prices prevailing at the time of sale, at prices related to prevailing market prices or at negotiated prices. (b) The Units are to be sold to an Agent on an agented basis on any day (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time)(each, a “Trading Day”) on which (i) the Partnership has instructed such Agent to make such sales and (ii) the Partnership has satisfied its covenants and conditions specified in Sections 4 and 5 hereof. On any Trading Day, the Partnership may sell Units through only one Agent and, if it determines to do so, shall instruct the applicable Agent by telephone (confirmed promptly by telecopy or email, which confirmation will be promptly acknowledged by such Agent) as to the maximum number of Units to be sold on such Trading Day and the minimum price per Unit at which such Units may be sold. Subject to the terms and conditions ~~specified herein (including, without limitation~~of this Section 3(a), the accuracy of the representations and warranties of the Partnership and the performance by the Partnership of its covenants and other obligations, contained herein and the satisfaction of the additional conditions specified in Section 5 hereof), such Agent applicable Manager shall use its commercially reasonable ~~efforts, consistent with its normal trading~~ efforts to offer and ~~sales practices and applicable law and regulations, to~~ sell all of the Units so designated; provided, however, that the Managers shall have no obligation to offer or sell any Units, and the Partnership acknowledges and agrees that the Managers shall have no such obligation, in the event that an offer or sale of the Units on behalf of the Partnership may in the reasonable judgment of a Manager constitute the sale of a “block” under Rule 10b-18(a)(5) under the Exchange Act or a “distribution” within the meaning of Rule 100 of Regulation M under the Exchange Act or such Manager reasonably believes that it may be deemed to be an “underwriter” under the Act in a transaction that is other than by means of ordinary brokers’ transactions between members of the NASDAQ that qualify for delivery of a Prospectus to the NASDAQ in accordance with Rule 153 under the Act (such transactions are hereinafter referred to as “At the Market Offerings”). (ii) Notwithstanding the foregoing, the Partnership, through any of the Authorized Partnership Representatives, may instruct the Managers by telephone (confirmed promptly by electronic mail) not to sell the Units if such sales cannot be effected at or above the price designated by the Partnership ~~as sales agent~~ in ~~accordance with~~ any such instruction. ~~On any Trading Day~~In addition, the Partnership ~~shall give at least one business day’s prior written notice by telecopy~~ or email to the Agents as to any change of the Agent through whom sales of Units as sales agent will be made. For the avoidance of doubt, the foregoing limitation shall not apply to sales solely to employees or security holders of the Enable Entities or any of their subsidiaries or to a trustee or other person acquiring Units for the accounts of such persons in which either Xxxxxxx Xxxxx, Barclays Capital Inc., Citigroup Global Markets Inc., Credit Suisse Securities (USA) LLC, Deutsche Bank Securities Inc., Xxxxxxx Xxxxx & Co. LLC, X.X. Xxxxxx Securities LLC, Mizuho Securities USA LLC, Xxxxxx Xxxxxxx & Co. LLC, MUFG Securities Americas Inc., RBC Capital Markets, LLC, SunTrust Xxxxxxxx Xxxxxxxx, Inc. or Xxxxx Fargo Securities, LLC is acting for the Partnership in a capacity other than as Agent under this Agreement. The Partnership and the Agents each acknowledge and agree that (A) there can be no assurance that any Agent will be successful in selling any Units and (B) the Agents will not incur any liability or obligation to the Partnership if they fail to sell Units for any reason other than a failure to use their respective commercially reasonable efforts, consistent with its normal trading and sales practices and applicable law and regulations, to sell such Units as required by this Agreement. (c) The Partnership or the Agent through whom the sale of Units are to be made as sales agent on any Trading Day Managers may, upon notice to the other party hereto by telephone (confirmed promptly by ~~telecopy or email, which confirmation will be promptly acknowledged by the receiving party~~electronic mail), suspend the offering of the Units ~~with respect to which such Agent is acting as sales agent~~ for ~~any reason and at any time~~a specified period (a “Suspension Period”); provided, however, that such ~~suspension~~ Suspension Period shall not affect or impair the parties’ respective obligations with respect to the Units ~~sold, or with respect to Units that the Partnership has agreed to sell,~~ sold hereunder prior to the giving of such ~~notice~~notice and provided, further, that there shall be no obligations under Sections 4(n), 4(o), 4(p) and 4(q) with respect to the delivery of certificates, opinions, or comfort letters to the Managers during a Suspension Period and that such obligations shall recommence on the termination of the Suspension Period. (diii) ~~The gross~~ Each of the Managers hereby covenants and agrees not to make any sales ~~price~~ of ~~any~~ the Units ~~sold~~ on behalf of the Partnership, pursuant to this ~~Agreement~~ Section 3(a), other than (A) by means of At the ~~applicable Agent acting~~ Market Offerings and (B) such other sales of the Units on behalf of the Partnership in its capacity as ~~sales~~ agent of the Partnership as shall be ~~equal to~~mutually agreed upon by the Partnership and such Manager. (iv) The compensation to each Manager, ~~in the discretion of such Agent but subject to the specific instructions~~ as an agent of the Partnership, the market price prevailing at the time of sale for the Units sold by such Agent on the NYSE or otherwise, at prices related to prevailing market prices or at negotiated prices. The compensation payable to an Agent for sales of the Units ~~with respect~~ shall be at a mutually agreed rate, not to ~~which such Agent acts as sales agent shall not~~ exceed 22.0% of the gross sales price ~~for such Units, which commission shall be agreed~~ of the Units sold pursuant to ~~separately by such Agent and the Partnership~~this Section 3(a). The remaining proceeds, after further deduction for any transaction ~~fees, transfer taxes or similar taxes or~~ fees imposed by any ~~Governmental Entity~~ governmental or self-regulatory organization in respect of such sales, shall constitute the net proceeds to the Partnership for such ~~sales~~ Units (the “Net Proceeds”). The applicable Agent shall notify the Partnership as promptly as practicable if any deduction referenced in the preceding sentence will be made. Notwithstanding the foregoing, in the event the Partnership engages an Agent as sales agent for the sale of Units that would constitute a “distribution” within the meaning of Rule 100 of Regulation M under the 1934 Act, the Partnership and such Agent will agree to compensation for such Agent that is customary for such sales. (ev) If acting as sales agent hereunder, ~~the applicable Agent~~ each Manager shall provide written confirmation to the Partnership (which may be by electronic mail) as soon as is reasonably practicable following the close of trading on the ~~NYSE on~~ NASDAQ each ~~Trading Day on~~ day in which the Units are sold ~~under~~ pursuant to this ~~Agreement~~ Section 3(a) setting forth (i) the number of Units sold on such day, (ii) the ~~aggregate gross sales proceeds of the Units, the aggregate~~ Net Proceeds to the ~~Partnership~~ Partnership, and (iii) the ~~aggregate~~ compensation payable by the Partnership to such ~~Agent~~ Manager with respect to such sales. At each Agent’s election, such compensation shall be set forth and invoiced in periodic statements from such Agent to the Partnership, with payment to be made by the Partnership promptly after its receipt thereof. (f) Under no circumstances shall the aggregate gross sales price or number, as the case may be, of Units offered or sold pursuant to this Agreement, or which are the subject of instructions to an Agent as sales agent pursuant to Section 2(b) hereof, exceed the aggregate gross sales price or number, as the case may be, of Units (i) referred to in the preamble paragraph of this Agreement, as reduced by prior sales of Units under this Agreement, (ii) available for sale under the Registration Statement or (iii) duly authorized from time to time to be issued and sold under this Agreement by the Partnership or approved for listing on the NYSE, and, in each case referred to in clause (ii) and (iii), notified to the Agents in writing. In addition, under no circumstances shall any Units with respect to which the Agent acts as sales agent be offered or sold, or be the subject of instructions to an Agent as sales agent pursuant to Section 2(b) hereof, at a price lower than the minimum price therefor duly authorized from time to time by the Partnership and notified to the Agents in writing. The Agents shall have no responsibility for maintaining records with respect to Units available for sale under the Registration Statement or for determining the aggregate gross sales price, number or minimum price of Units duly authorized by the Partnership. (g) If the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the 1934 Act are not satisfied with respect to the Partnership or the Units, the Partnership shall promptly notify the Agents and future offers and sales of Units through the Agents on an agented basis under this ATM Equity OfferingSM Sales Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of each party. (hvi) Settlement for sales of the Units pursuant to this Section 3(a) will occur ~~(i) prior to September 5, 2017,~~ on the third business day that is also a ~~Trading Day~~ trading day on the NASDAQ following the ~~trade~~ date on which such sales are made and (ii) on and after September 5, 2017, on the second business day that is also a Trading Day following the trade date on which such sales were made, in either case unless another date shall be agreed to in writing by the Partnership and the applicable Agents (each such ~~day~~date, a “Settlement Date”). On each Settlement ~~Date~~ Date, the Units sold through a Manager for ~~the sale of Units through an Agent as sales agent,~~ settlement on such ~~Units~~ date shall be issued and delivered by the Partnership to such ~~Agent in book-entry form~~ Manager against payment of the Net Proceeds for the sale of such Units. Settlement for all such Units shall be effected by free delivery of the Units by the Partnership or its transfer agent to such ~~Agent~~Manager’s account, or to the account of such Manager’s designee, at The Depository Trust ~~Company against payment~~ Partnership through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such ~~Agent~~ other means of delivery as may be mutually agreed upon by the ~~Net Proceeds from the sale of such Units~~ parties hereto, which in all cases shall be freely tradable, transferable, registered units in good deliverable form, in return for payments in same day funds delivered to an the account designated by the Partnership. If the ~~Partnership~~ Partnership, or its transfer agent (if applicable), shall default on upon its obligation to deliver the Units ~~through an Agent as sales agent~~ on any Settlement Date, the Partnership shall (iA) indemnify and hold such ~~Agent~~ Manager harmless against any loss, claim or damage arising from or as a result of such default by the Partnership and (iiB) pay such ~~Agent~~ Manager any commission to which it would otherwise be entitled absent such default. The Authorized Partnership Representatives shall be the contact persons for the Partnership for all matters related to the settlement of the transfer of the Units through DWAC for purposes of this Section 3(a)(vi). (ivii) ~~Notwithstanding~~ At each Time of Sale, Settlement Date and Representation Date (as defined in Section 4(n) hereof), the Partnership Parties shall be deemed to have affirmed each representation and warranty contained in this Agreement. Any obligation of any Manager to use its commercially reasonable efforts to sell the Units on behalf of the Partnership shall be subject to the continuing accuracy of the representations and warranties of the Partnership Parties herein, to the performance by the Partnership of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 hereof. (b) If the Partnership wishes to issue and sell the Units other ~~provision~~ than as set forth in Section 3(a) hereof (each, a “Placement”), it will notify a Manager of the proposed terms of such Placement. If such Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Partnership, wishes to accept amended terms, the Partnership Parties and such Manager will enter into a Terms Agreement setting forth the terms of such Placement. In the event of a conflict between the terms of this Agreement and the terms of any Terms Agreement, the ~~Partnership~~ terms of such Terms Agreement will control. (c) Under no circumstances shall ~~not~~ the aggregate gross sales proceeds of the Units sold pursuant to this Agreement exceed the lesser of (A) the amount set forth in Section 1 hereof and (B) the amount available for offer ~~or sell~~and sale under the Registration Statement, nor shall the aggregate amount of Units sold pursuant to this Agreement exceed the amount of Units authorized to be issued and sold from time to time under this Agreement by the Board of Directors of the general partner of the Partnership, or ~~instruct an Agent~~ a duly authorized committee thereof, and notified to ~~offer or sell, any~~ the Managers in writing. (d) Each sale of the Units through ~~an Agent as sales agent~~ or to any Manager shall be made in accordance with the terms of this Agreement or, if applicable, a Terms Agreement. (~~and, by notice~~ e) Subject to the ~~Agents given~~ limitations set forth herein and as may be mutually agreed upon by ~~telephone (confirmed promptly by telecopy or email), shall cancel any instructions for any such offer or sale of any Units prior to~~ the ~~commencement of the periods referenced below),~~ Partnership and the ~~Agents shall~~ Managers, sales effected pursuant to this Agreement may not be ~~obligated to make~~ requested by the Partnership and need not be made by any ~~such offer or sale of Units,~~ Manager (i) during ~~any period in~~ the 14 calendar days prior to the date (each, an “Announcement Date”) on which the Partnership is, or could be deemed to be, in possession of material non-public information or (ii) except as provided in Section 2(j) hereof, at any time during the period commencing on the 10th business day prior to the time the Partnership issues shall issue a press release containing, or shall otherwise publicly announce, its earnings, revenues or other ~~operating~~ results ~~for a fiscal period or periods~~ of operations (each, an “Earnings Announcement”), (ii) at any time from and including an Announcement Date through and including the later to occur of (A) the time that is 24 hours after the time that the Partnership files a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K ~~(a “Filing Time”)~~ that includes consolidated financial statements as of and for the same ~~fiscal~~ period or periods, as the case may be, covered by such Earnings Announcement, and (B) the applicable Representation Date (as defined below) of the Partnership referenced in Section 4(q) below, or (iii) during any other period in which the Partnership is, or could be deemed to be, in possession of material non-public information. (jf) ~~Notwithstanding clause~~ The Partnership acknowledges and agrees that (i) there can be no assurance that any Manager will be successful in selling the Units, (ii) ~~of Section 2(i) hereof, if~~ no Manager will incur liability or obligation to the Partnership ~~wishes to offer~~ or any other person or entity if it does not sell Units ~~to an Agent as sales agent at~~ for any time during the period from and including an Earnings Announcement through and including the corresponding Filing Time, the Partnership shall first (i) prepare and deliver to such Agent (with a copy to counsel for the Agents) a Current Report on Form 8-K that includes substantially the same financial and related information (together with management’s discussion and analysis thereof) that was included in such Earnings Announcement (reason other than a failure by such Manager to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Units in accordance with the terms of this Agreement, and (iii) no Manager shall be under any ~~earnings projections and similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”)~~obligation to purchase Units on a principal basis pursuant to this Agreement unless a Terms Agreement, in form and substance ~~reasonably~~ mutually satisfactory to such Agent, and, prior to its filing, obtain the written consent of such Agent to such filing (which consent shall not be unreasonably withheld), (ii) provide such Agent with the officers’ certificate, opinions and letters of counsel and accountants’ letter specified in Section 3(o), (p) and (q), respectively, hereof, (iii) afford such Agent the opportunity to conduct a due diligence review in accordance with Section 3(t) hereof prior to filing such Earnings 8-K and (iv) file such Earnings 8-K with the Commission. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificate, opinion or letter of counsel or accountants’ letter pursuant to this Section 2(j) shall not relieve the Partnership from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions and letters of counsel and accountants’ letters as provided in Section 3(o), (p) and (q), respectively, hereof, and (B) this Section 2(j) shall in no way affect or limit the operation of clause (i) of Section 2(i) hereof, which shall have independent application. (k) The Agents shall not have any obligation to purchase Units as principal, whether from the Partnership or otherwise, unless the Partnership and ~~the applicable Agents agree as set forth below. Units purchased from the Partnership by the applicable Agents~~such Manager, ~~individually or in a syndicate, as principal~~ shall be made in accordance with terms agreed upon between such Agents and the Partnership as evidenced by a Terms Agreement. The applicable Agents’ commitment to purchase Units from the Partnership as principal shall be deemed to have been ~~made on the basis of the accuracy of the representations and warranties of the Partnership, and performance~~ executed by the Partnership ~~of its covenants~~ and other obligations, herein contained and shall be subject to the terms and conditions herein set forth. At the time of each Terms Agreement, the applicable Agents shall specify the requirements, if any, for the officers’ certificate, opinions and letters of counsel and accountants’ letter pursuant to Section 3(o), (p) and (q), respectively, hereof. In the event of a conflict between the terms of this ATM Equity OfferingSM Sales Agreement and a Terms Agreement, the terms of such ~~Terms Agreement shall control~~Manager.

Appears in 1 contract

Samples: Equity Distribution Agreement (Mid-Con Energy Partners, LP)

Common use of Sale and Delivery of Units Clause in Contracts