Sale of Units. (a) Subject to the terms and conditions set forth herein: (i) the Company and each of the Underwriters, severally and not jointly, agree to enter into the Purchase Contracts underlying the number of Firm Units set forth opposite the name of such Underwriter in Schedule II hereto, (ii) the Company and the Trust agree that the Trust will sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Trust, the number of Trust Preferred Securities underlying the number of Firm Units set forth opposite the name of such Underwriter in Schedule II hereto, (iii) the Company and the Trust agree to sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Company and the Trust, at a purchase price of $ per Firm Unit, the number of Firm Units set forth opposite the name of such Underwriter in Schedule II hereto, and (iv) in the event and to the extent that the Underwriters shall exercise the election to enter into additional Purchase Contracts underlying Optional Units as provided in sub-section (b) below, (1) the Company and each of the Underwriters, severally and not jointly, agree to enter into that number of additional Purchase Contracts as to which such election shall have been exercised (to be adjusted by you so as to eliminate fractional Purchase Contracts) determined by multiplying such number of additional Purchase Contracts by a fraction, the numerator of which is the maximum number of Optional Units set forth opposite the name of such Underwriter in Schedule II hereto and the denominator of which is the maximum number of Optional Units set forth in total opposite the names of all such Underwriters in Schedule II hereto, (2) the Company and the Trust agree that the Trust will sell to each of the Underwriters and each of the Underwriters agrees, severally and not jointly, to purchase from the Trust, a number of Trust Preferred Securities equal to such number of additional Purchase Contracts, and (3) the Company and the Trust agree to sell to each of the Underwriters and each of the Underwriters agrees, severally and not jointly, to purchase from the Company and the Trust at the purchase price set forth in clause (a) of this Section 2, a number of Optional Units equal to such number of additional Purchase Contracts. (b) The Company and the Trust hereby grant to the Underwriters the right to enter into at their election up to 1,200,000 Optional Units for the sole purpose of covering overallotments in the sale of the Firm Units. Any such election to enter into such additional Purchase Contracts and purchase such Trust Preferred Securities may be exercised only by written notice from you to the Company and the Trust, given within a period of 30 calendar days after the date of this Agreement and setting forth the aggregate number of such additional Purchase Contracts to be entered into and Trust Preferred Securities to be purchased (which shall be an identical number) and the date on which the related Optional Units are to be delivered, as determined by you but in no event earlier than the First Time of Delivery (as defined in Section 3 hereof) or, unless you and the Company otherwise agree in writing, earlier than two or later than ten business days after the date of such notice. (c) The Underwriters agree to pledge to the Collateral Agent, on behalf of the initial purchasers of the Units, the Trust Preferred Securities underlying the Firm Units and the Optional Units with respect to which the Company and the Underwriters have entered into Purchase Contracts. Such pledge shall be effected by the delivery by the Underwriters to the Collateral Agent in New York of the Trust Preferred Securities to be pledged at the appropriate Time of Delivery (as defined below) in accordance with the Pledge Agreement. (d) Unless the context otherwise requires, for purposes of this Agreement, the act of entering into a Purchase Contract and purchasing a Trust Preferred Security shall be referred to as the "purchase" of a Unit.
Appears in 1 contract
Sale of Units. On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Partnership agrees to issue and sell through the Managers, acting as sales agents, and each Manager agrees to use its commercially reasonable efforts to sell, as agent for the Partnership, the Units on the following terms:
(a1) The Units are to be sold by one of the Managers on a daily basis or otherwise as shall be agreed to 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), (B) the Partnership, through any of the individuals listed as authorized representatives of the Partnership on Exhibit A hereto (which may be updated from time to time by a certificate from the Partnership to the Managers) (the “Authorized Partnership Representatives”) has instructed any of the individuals listed as authorized representatives of such Manager on Exhibit A hereto (which may be updated from time to time by a certificate from such Manager to the Partnership) (the “Authorized Manager Representatives”) by telephone (confirmed promptly by electronic mail) to make such sales, and (C) the Partnership has satisfied its obligations under Section 6. of this Agreement. The Partnership will designate (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 currently effective Registration Statement) and (ii) the minimum price per Unit at which such Units may be sold. Subject to the terms and conditions set forth herein:
(i) the Company and each hereof, such Manager shall use its commercially reasonable efforts to sell on a particular day all of the Underwriters, severally and not jointly, agree to enter into Units designated for the Purchase Contracts underlying sale by the number Partnership on such day. The gross sales price of Firm the Units set forth opposite sold under this Section 3(a) shall be the name 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 Underwriter in Schedule II hereto,
(ii) Units. For the Company and the Trust agree that the Trust will sell to each avoidance of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Trustdoubt, the number of Trust Preferred Securities underlying the number of Firm Units set forth opposite the name of such Underwriter in Schedule II hereto,
(iii) the Company and the Trust agree Partnership shall submit instructions to sell Units to each of the Underwritersonly one Manager, and each of the Underwriters agreesif any, severally and not jointly, to purchase from the Company and the Trust, at a purchase price of $ per Firm Unit, the number of Firm Units set forth opposite the name of such Underwriter in Schedule II hereto, and
(iv) in the event and to the extent that the Underwriters shall exercise the election to enter into additional Purchase Contracts underlying Optional Units as provided in sub-section (b) below,
(1) the Company and each of the Underwriters, severally and not jointly, agree to enter into that number of additional Purchase Contracts as to which such election shall have been exercised (to be adjusted by you so as to eliminate fractional Purchase Contracts) determined by multiplying such number of additional Purchase Contracts by a fraction, the numerator of which is the maximum number of Optional Units set forth opposite the name of such Underwriter in Schedule II hereto and the denominator of which is the maximum number of Optional Units set forth in total opposite the names of all such Underwriters in Schedule II hereto,on any single trading day.
(2) The Partnership acknowledges and agrees that (i) there can be no assurance that any Manager will be successful in selling Units, (ii) no Manager will incur any liability or obligation to the Company 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 to sell such Units as required under this Section 3 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 Trust agree that the Trust will sell Partnership in writing pursuant to each of the Underwriters and each of the Underwriters agrees, severally and not jointly, to purchase from the Trust, a number of Trust Preferred Securities equal to such number of additional Purchase Contracts, andTerms Agreement.
(3) Notwithstanding the Company and foregoing, the Trust agree Partnership, through any of the Authorized Partnership Representatives, may instruct the Authorized Manager Representatives by telephone (confirmed promptly by electronic mail) not to sell Units if such sales cannot be effected at or above the price designated by the Partnership in any such instruction. The Partnership or any Manager may, upon notice to each the other party hereto by telephone (confirmed promptly by electronic mail), suspend or terminate the offering of the Underwriters and each of the Underwriters agrees, severally and not jointly, to purchase from the Company and the Trust at the purchase price set forth in clause (a) of this Section 2, a number of Optional Units equal to such number of additional Purchase Contracts.
(b) The Company and the Trust hereby grant to the Underwriters the right to enter into at their election up to 1,200,000 Optional Units for the sole purpose of covering overallotments in the sale of the Firm Units. Any such election to enter into such additional Purchase Contracts and purchase such Trust Preferred Securities may be exercised only by written notice from you to the Company and the Trust, given within a period of 30 calendar days after the date of this Agreement and setting forth the aggregate number of such additional Purchase Contracts to be entered into and Trust Preferred Securities to be purchased (which shall be an identical number) and the date on which the related Optional Units are to be delivered, as determined by you but in no event earlier than the First Time of Delivery (as defined in Section 3 hereof) or, unless you and the Company otherwise agree in writing, earlier than two or later than ten business days after the date of such notice.
(c) The Underwriters agree to pledge to the Collateral Agent, on behalf of the initial purchasers of the Units, the Trust Preferred Securities underlying the Firm Units and the Optional Units with respect to which such 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 Company parties’ respective obligations with respect to the Units sold hereunder prior to the giving of such notice. During any such period of suspension, the Partnership shall not be obligated to deliver (or cause to be delivered) any of the documents referred to in Sections 4(n)—(p), be deemed to affirm any of the representations or warranties contained in this Agreement, or be obligated to conduct any due diligence session as referred to in Section (l)4(l) until the termination of the suspension and the Underwriters have entered into Purchase Contracts. Such pledge shall be effected by the delivery by the Underwriters to the Collateral Agent in New York recommencement of the Trust Preferred Securities offering of the Units pursuant to be pledged at the appropriate Time of Delivery this Agreement (as defined below) in accordance with the Pledge Agreementwhich recommencement shall constitute a Representation Date.
(d4) Unless Subject to the context otherwise requires, for purposes terms of this a Terms Agreement, the act Managers may sell Units (i) by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 of entering into the Securities Act, including without limitation sales made directly on the NYSE, on any other existing trading market for the Common Units, (ii) to or through a Purchase Contract and purchasing market maker, or (iii) directly on or through an electronic communication network, a Trust Preferred Security “dark pool” or any similar market venue. Subject to the terms of a Terms Agreement, the Managers may also sell Units by any other method permitted by law, including but not limited to in privately negotiated transactions.
(5) The compensation to each Manager for sales of the Units with respect to which such Manager acts as sales agent under this Agreement shall be referred up to 2% of the gross sales price of the Units sold pursuant to this Section 3(a) and payable as described in the "purchase" succeeding subsection (6) 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 Manager as principal at a Unitprice mutually agreed upon at the relevant Applicable Time pursuant to a Terms Agreement. The gross proceeds less any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales (the “Transaction Fees”) shall constitute the net proceeds to the Partnership for such Units (the “Net Proceeds”).
(6) Each Manager acting as sales 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 each day in which the Units with respect to which such Manager is acting as sales agent are sold under this Section 3(a) setting forth the number of the Units sold on such day, the aggregate gross sales proceeds and the Net Proceeds to the Partnership, and the compensation payable by the Partnership to such Manager with respect to such sales.
Appears in 1 contract
Sale of Units. (a) Subject On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth herein:
(i) forth, the Company Partnership agrees to issue and each of sell through the UnderwritersManagers, severally and not jointly, agree to enter into the Purchase Contracts underlying the number of Firm Units set forth opposite the name of such Underwriter in Schedule II hereto,
(ii) the Company and the Trust agree that the Trust will sell to each of the Underwritersacting as sales agents, and each of the Underwriters Managers agrees, severally and not jointly, to purchase from use its commercially reasonable efforts to sell, as agent for the TrustPartnership, the number of Trust Preferred Securities underlying Units on the number of Firm Units set forth opposite the name of such Underwriter in Schedule II hereto,
(iii) the Company and the Trust agree to sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Company and the Trust, at a purchase price of $ per Firm Unit, the number of Firm Units set forth opposite the name of such Underwriter in Schedule II hereto, and
(iv) in the event and to the extent that the Underwriters shall exercise the election to enter into additional Purchase Contracts underlying Optional Units as provided in sub-section (b) below,following terms:
(1) the Company and each The Units are to be sold by one of the UnderwritersManagers on a daily basis or otherwise as shall be agreed to 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), severally (B) the Partnership, through any of the individuals listed as authorized representatives of the Partnership on Exhibit A hereto (which may be updated from time to time by a certificate from the Partnership to the Managers) (the “Authorized Partnership Representatives”) has instructed any of the individuals listed as authorized representatives of such Manager on Exhibit A hereto (which may be updated from time to time by a certificate from such Manager to the Partnership) (the “Authorized Manager Representatives”) by telephone (confirmed promptly by electronic mail) to make such sales, and (C) the Partnership has satisfied its obligations under Section 6 of this Agreement. The Partnership will designate (i) the maximum aggregate value of the Units to be sold by such Manager daily as agreed to by such Manager (in any event not jointly, agree to enter into that number in excess of additional Purchase Contracts as to the amount available for issuance under the Prospectus and the currently effective Registration Statement) and (ii) the minimum price per Unit at which such election Units may be sold. Subject to the terms and conditions hereof, such Manager shall have been exercised (use its commercially reasonable efforts to sell on a particular day all of the Units designated for the sale by the Partnership on such day. The gross sales price of the Units sold under this Section 3(a) shall be adjusted the market price for the Partnership’s Common Units sold by you so as to eliminate fractional Purchase Contractssuch Manager under this Section 3(a) determined by multiplying on the NYSE at the time of sale of such number Units. For the avoidance of additional Purchase Contracts by a fractiondoubt, the numerator of which is the maximum number of Optional Partnership shall submit instructions to sell Units set forth opposite the name of such Underwriter in Schedule II hereto and the denominator of which is the maximum number of Optional Units set forth in total opposite the names of all such Underwriters in Schedule II hereto,to only one Manager, if any, on any single trading day.
(2) The Partnership acknowledges and agrees that (i) there can be no assurance that any Manager will be successful in selling Units, (ii) no Manager will incur any liability or obligation to the Company 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 to sell such Units as required under this Section 3 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 Trust agree that the Trust will sell Partnership in writing pursuant to each of the Underwriters and each of the Underwriters agrees, severally and not jointly, to purchase from the Trust, a number of Trust Preferred Securities equal to such number of additional Purchase Contracts, andTerms Agreement.
(3) Notwithstanding the Company and foregoing, the Trust agree Partnership, through any of the Authorized Partnership Representatives, may instruct any of the Authorized Manager Representatives of any Manager by telephone (confirmed promptly by electronic mail) to cause such Manager not to sell Units if such sales cannot be effected at or above the price designated by the Partnership in any such instruction. The Partnership or any Manager may, upon notice to each the other party hereto by telephone (confirmed promptly by electronic mail), suspend or terminate the offering of the Underwriters and each of the Underwriters agrees, severally and not jointly, to purchase from the Company and the Trust at the purchase price set forth in clause (a) of this Section 2, a number of Optional Units equal to such number of additional Purchase Contracts.
(b) The Company and the Trust hereby grant to the Underwriters the right to enter into at their election up to 1,200,000 Optional Units for the sole purpose of covering overallotments in the sale of the Firm Units. Any such election to enter into such additional Purchase Contracts and purchase such Trust Preferred Securities may be exercised only by written notice from you to the Company and the Trust, given within a period of 30 calendar days after the date of this Agreement and setting forth the aggregate number of such additional Purchase Contracts to be entered into and Trust Preferred Securities to be purchased (which shall be an identical number) and the date on which the related Optional Units are to be delivered, as determined by you but in no event earlier than the First Time of Delivery (as defined in Section 3 hereof) or, unless you and the Company otherwise agree in writing, earlier than two or later than ten business days after the date of such notice.
(c) The Underwriters agree to pledge to the Collateral Agent, on behalf of the initial purchasers of the Units, the Trust Preferred Securities underlying the Firm Units and the Optional Units with respect to which such 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 Company parties’ respective obligations with respect to the Units sold hereunder prior to the giving of such notice. During any such period of suspension, the Partnership shall not be obligated to deliver (or cause to be delivered) any of the documents referred to in Sections 4(n) through (p), be deemed to affirm any of the representations or warranties contained in this Agreement, or be obligated to conduct any due diligence session as referred to in Section 4(l) until the termination of the suspension and the Underwriters have entered into Purchase Contractsrecommencement of the offering of the Units pursuant to this Agreement (which recommencement shall constitute a Representation Date).
(4) Subject to the terms of a Terms Agreement, the Managers may sell Units (i) by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 of the Securities Act, including without limitation sales made directly on the NYSE, on any other existing trading market for the Common Units, (ii) to or through a market maker, or (iii) directly on or through an electronic communication network, a “dark pool” or any similar market venue. Such pledge Subject to the terms of a Terms Agreement, the Managers may also sell Units by any other method permitted by law, including but not limited to in privately negotiated transactions.
(5) The compensation to each Manager for sales of the Units with respect to which such Manager acts as sales agent under this Agreement shall be effected up to 2.0% of the gross sales price of the Units sold pursuant to this Section 3(a) and payable as described in Section 3(b) 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 Manager as principal at a price mutually agreed upon at the relevant Applicable Time pursuant to a Terms Agreement.
(6) Each Manager acting as sales 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 each day in which the Units with respect to which such Manager is acting as sales agent are sold under this Section 3(a) setting forth the number of the Units sold on such day, the aggregate gross sales proceeds, the compensation payable by the delivery by Partnership to such Manager with respect to such sales and the Underwriters to the Collateral Agent in New York of the Trust Preferred Securities to be pledged at the appropriate Time of Delivery Net Proceeds (as defined below) in accordance with payable to the Pledge AgreementPartnership.
(d) Unless the context otherwise requires, for purposes of this Agreement, the act of entering into a Purchase Contract and purchasing a Trust Preferred Security shall be referred to as the "purchase" of a Unit.
Appears in 1 contract
Samples: Equity Distribution Agreement (NGL Energy Partners LP)
Sale of Units. On the basis of the representations, warranties and agreements contained in and subject to the terms and conditions of, this Agreement, the Partnership agrees to issue and sell through the Managers, acting as sales agents, and each Manager agrees to use its commercially reasonable efforts to sell, as agent for the Partnership, the Units on the following terms:
(ai) The Units are to be sold by one of the Managers on a daily basis or otherwise as shall be agreed to 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), (B) the Partnership, through any of the individuals listed as authorized representatives of the Partnership on Exhibit A hereto (which may be updated from time to time by a certificate from the Partnership to the Managers) (the “Authorized Partnership Representatives”) has instructed any of the individuals listed as authorized representatives of such Manager on Exhibit A hereto (which may be updated from time to time by a certificate from such Manager to the Partnership) (the “Authorized Manager Representatives”) by telephone (confirmed promptly by electronic mail) to make such sales, and (C) the Partnership has satisfied its obligations under Section 6 of this Agreement. The Partnership will designate (i) the maximum number of 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 currently effective Registration Statement) and (ii) the minimum price per Unit at which such Units may be sold. Subject to the terms and conditions set forth herein:
(i) the Company and each hereof, such Manager shall use its commercially reasonable efforts to sell on a particular day all of the Underwriters, severally and not jointly, agree to enter into Units designated for the Purchase Contracts underlying sale by the number Partnership on such day. The gross sales price of Firm the Units set forth opposite sold under this Section 3(a) shall be the name 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 Underwriter in Schedule II hereto,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 (i) there can be no assurance that any Manager will be successful in selling Units, (ii) no Manager will incur any liability or obligation to the Company 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 to sell such Units as required under this Section 3 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 Trust agree that the Trust will sell Partnership in writing pursuant to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Trust, the number of Trust Preferred Securities underlying the number of Firm Units set forth opposite the name of such Underwriter in Schedule II hereto,a Terms Agreement.
(iii) Notwithstanding the Company and foregoing, the Trust agree Partnership, through any of the Authorized Partnership Representatives, may instruct the Authorized Manager Representatives by telephone (confirmed promptly by electronic mail) not to sell Units if such sales cannot be effected at or above the price designated by the Partnership in any such instruction. The Partnership or any Manager may, upon notice to each the other party hereto by telephone (confirmed promptly by electronic mail), suspend or terminate the offering of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Company and the Trust, at a purchase price of $ per Firm Unit, the number of Firm Units set forth opposite the name of such Underwriter in Schedule II hereto, and
(iv) in the event and to the extent that the Underwriters shall exercise the election to enter into additional Purchase Contracts underlying Optional Units as provided in sub-section (b) below,
(1) the Company and each of the Underwriters, severally and not jointly, agree to enter into that number of additional Purchase Contracts as to which such election shall have been exercised (to be adjusted by you so as to eliminate fractional Purchase Contracts) determined by multiplying such number of additional Purchase Contracts by a fraction, the numerator of which is the maximum number of Optional Units set forth opposite the name of such Underwriter in Schedule II hereto and the denominator of which is the maximum number of Optional Units set forth in total opposite the names of all such Underwriters in Schedule II hereto,
(2) the Company and the Trust agree that the Trust will sell to each of the Underwriters and each of the Underwriters agrees, severally and not jointly, to purchase from the Trust, a number of Trust Preferred Securities equal to such number of additional Purchase Contracts, and
(3) the Company and the Trust agree to sell to each of the Underwriters and each of the Underwriters agrees, severally and not jointly, to purchase from the Company and the Trust at the purchase price set forth in clause (a) of this Section 2, a number of Optional Units equal to such number of additional Purchase Contracts.
(b) The Company and the Trust hereby grant to the Underwriters the right to enter into at their election up to 1,200,000 Optional Units for the sole purpose of covering overallotments in the sale of the Firm Units. Any such election to enter into such additional Purchase Contracts and purchase such Trust Preferred Securities may be exercised only by written notice from you to the Company and the Trust, given within a period of 30 calendar days after the date of this Agreement and setting forth the aggregate number of such additional Purchase Contracts to be entered into and Trust Preferred Securities to be purchased (which shall be an identical number) and the date on which the related Optional Units are to be delivered, as determined by you but in no event earlier than the First Time of Delivery (as defined in Section 3 hereof) or, unless you and the Company otherwise agree in writing, earlier than two or later than ten business days after the date of such notice.
(c) The Underwriters agree to pledge to the Collateral Agent, on behalf of the initial purchasers of the Units, the Trust Preferred Securities underlying the Firm Units and the Optional Units with respect to which such 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 Company parties’ respective obligations with respect to the Units sold hereunder prior to the giving of such notice. During any such period of suspension, the Partnership shall not be obligated to deliver (or cause to be delivered) any of the documents referred to in Sections 4(n)—(p), be deemed to affirm any of the representations or warranties contained in this Agreement, or be obligated to conduct any due diligence session as referred to in Section 4(l) until the termination of the suspension and the Underwriters have entered into Purchase Contractsrecommencement of the offering of the Units pursuant to this Agreement (which recommencement shall constitute a Representation Date.
(iv) Subject to the terms of a Terms Agreement, the Managers may sell Units (i) by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 of the Securities Act, including without limitation sales made directly on the NYSE, on any other existing trading market for the Common Units, (ii) to or through a market maker, or (iii) directly on or through an electronic communication network, a “dark pool” or any similar market venue. Such pledge Subject to the terms of a Terms Agreement, the Managers may also sell Units by any other method permitted by law, including but not limited to in privately negotiated transactions.
(v) The compensation to each Manager for sales of the Units with respect to which such Manager acts as sales agent under this Agreement shall be effected up to 2.0% of the gross sales price of the Units sold pursuant to this Section 3(a) and payable as described in Section 3(b) 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 Manager as principal at a price mutually agreed upon at the relevant Applicable Time pursuant to a Terms Agreement.
(vi) Each Manager acting as sales 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 each day in which the Units with respect to which such Manager is acting as sales agent are sold under this Section 3(a) setting forth the number of the Units sold on such day, the aggregate gross sales proceeds, the compensation payable by the delivery by Partnership to such Manager with respect to such sales and the Underwriters to the Collateral Agent in New York of the Trust Preferred Securities to be pledged at the appropriate Time of Delivery Net Proceeds (as defined below) in accordance with payable to the Pledge AgreementPartnership.
(d) Unless the context otherwise requires, for purposes of this Agreement, the act of entering into a Purchase Contract and purchasing a Trust Preferred Security shall be referred to as the "purchase" of a Unit.
Appears in 1 contract
Sale of Units. On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Partnership agrees to issue and sell through the Managers, acting as sales agents, and each Manager agrees to use its commercially reasonable efforts to sell, as agent for the Partnership, the Units on the following terms:
(a1) The Units are to be sold by one of the Managers on a daily basis or otherwise as shall be agreed to 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), (B) the Partnership, through any of the individuals listed as authorized representatives of the Partnership on Exhibit A hereto (which may be updated from time to time by a certificate from the Partnership to the Managers) (the “Authorized Partnership Representatives”), has instructed any of the individuals listed as authorized representatives of such Manager on Exhibit A hereto (which may be updated from time to time by a certificate from such Manager to the Partnership) (the “Authorized Manager Representatives”) by telephone (confirmed promptly by electronic mail) to make such sales, and (C) the Partnership has satisfied its obligations under Section 6 of this Agreement. The Partnership will designate (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 currently effective Registration Statement) and (ii) the minimum price per Unit at which such Units may be sold. Subject to the terms and conditions set forth herein:
(i) the Company and each hereof, such Manager shall use its commercially reasonable efforts to sell on a particular day all of the Underwriters, severally and not jointly, agree to enter into Units designated for the Purchase Contracts underlying sale by the number Partnership on such day. The gross sales price of Firm the Units set forth opposite sold under this Section 3(a) shall be the name 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 Underwriter in Schedule II hereto,
(ii) Units. For the Company and the Trust agree that the Trust will sell to each avoidance of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Trustdoubt, the number of Trust Preferred Securities underlying the number of Firm Units set forth opposite the name of such Underwriter in Schedule II hereto,
(iii) the Company and the Trust agree Partnership shall submit instructions to sell Units to each of the Underwritersonly one Manager, and each of the Underwriters agreesif any, severally and not jointly, to purchase from the Company and the Trust, at a purchase price of $ per Firm Unit, the number of Firm Units set forth opposite the name of such Underwriter in Schedule II hereto, and
(iv) in the event and to the extent that the Underwriters shall exercise the election to enter into additional Purchase Contracts underlying Optional Units as provided in sub-section (b) below,
(1) the Company and each of the Underwriters, severally and not jointly, agree to enter into that number of additional Purchase Contracts as to which such election shall have been exercised (to be adjusted by you so as to eliminate fractional Purchase Contracts) determined by multiplying such number of additional Purchase Contracts by a fraction, the numerator of which is the maximum number of Optional Units set forth opposite the name of such Underwriter in Schedule II hereto and the denominator of which is the maximum number of Optional Units set forth in total opposite the names of all such Underwriters in Schedule II hereto,on any single trading day.
(2) The Partnership acknowledges and agrees that (i) there can be no assurance that any Manager will be successful in selling Units, (ii) no Manager will incur any liability or obligation to the Company 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 to sell such Units as required under this Section 3 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 Trust agree that the Trust will sell Partnership in writing pursuant to each of the Underwriters and each of the Underwriters agrees, severally and not jointly, to purchase from the Trust, a number of Trust Preferred Securities equal to such number of additional Purchase Contracts, andTerms Agreement.
(3) Notwithstanding the Company and foregoing, the Trust agree Partnership, through any of the Authorized Partnership Representatives, may instruct the Authorized Manager Representatives by telephone (confirmed promptly by electronic mail) not to sell Units if such sales cannot be effected at or above the price designated by the Partnership in any such instruction. The Partnership or any Manager may, upon notice to each the other party hereto by telephone (confirmed promptly by electronic mail), suspend or terminate the offering of the Underwriters and each of the Underwriters agrees, severally and not jointly, to purchase from the Company and the Trust at the purchase price set forth in clause (a) of this Section 2, a number of Optional Units equal to such number of additional Purchase Contracts.
(b) The Company and the Trust hereby grant to the Underwriters the right to enter into at their election up to 1,200,000 Optional Units for the sole purpose of covering overallotments in the sale of the Firm Units. Any such election to enter into such additional Purchase Contracts and purchase such Trust Preferred Securities may be exercised only by written notice from you to the Company and the Trust, given within a period of 30 calendar days after the date of this Agreement and setting forth the aggregate number of such additional Purchase Contracts to be entered into and Trust Preferred Securities to be purchased (which shall be an identical number) and the date on which the related Optional Units are to be delivered, as determined by you but in no event earlier than the First Time of Delivery (as defined in Section 3 hereof) or, unless you and the Company otherwise agree in writing, earlier than two or later than ten business days after the date of such notice.
(c) The Underwriters agree to pledge to the Collateral Agent, on behalf of the initial purchasers of the Units, the Trust Preferred Securities underlying the Firm Units and the Optional Units with respect to which such 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 Company parties’ respective obligations with respect to the Units sold hereunder prior to the giving of such notice. During any such period of suspension, the Partnership shall not be obligated to deliver (or cause to be delivered) any of the documents referred to in Sections 4(n)–(p), be deemed to affirm any of the representations or warranties contained in this Agreement, or be obligated to conduct any due diligence session as referred to in Section 4(l) until the termination of the suspension and the Underwriters have entered into Purchase Contractsrecommencement of the offering of the Units pursuant to this Agreement (which recommencement shall constitute a Representation Date).
(4) Subject to the terms of a Terms Agreement, the Managers may sell Units (i) by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 of the Securities Act, including without limitation sales made directly on the NYSE, on any other existing trading market for the Common Units, (ii) to or through a market maker, or (iii) directly on or through an electronic communication network, a “dark pool” or any similar market venue. Such pledge Subject to the terms of a Terms Agreement, the Managers may also sell Units by any other method permitted by law, including but not limited to in privately negotiated transactions.
(5) The compensation to each Manager for sales of the Units with respect to which such Manager acts as sales agent under this Agreement shall be effected up to 2.0% of the gross sales price of the Units sold pursuant to this Section 3(a) and payable as described in Section 3(b) 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 Manager as principal at a price mutually agreed upon at the relevant Applicable Time pursuant to a Terms Agreement.
(6) Each Manager acting as sales 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 each day in which the Units with respect to which such Manager is acting as sales agent are sold under this Section 3(a) setting forth the number of the Units sold on such day, the aggregate gross sales proceeds, the compensation payable by the delivery by Partnership to such Manager with respect to such sales and the Underwriters to the Collateral Agent in New York of the Trust Preferred Securities to be pledged at the appropriate Time of Delivery Net Proceeds (as defined below) in accordance with payable to the Pledge AgreementPartnership.
(d) Unless the context otherwise requires, for purposes of this Agreement, the act of entering into a Purchase Contract and purchasing a Trust Preferred Security shall be referred to as the "purchase" of a Unit.
Appears in 1 contract
Samples: Equity Distribution Agreement (Southcross Energy Partners, L.P.)
Sale of Units. On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Partnership agrees to issue and sell through the Managers, acting as sales agents, and each Manager agrees to use its commercially reasonable efforts to sell, as agent for the Partnership, the Units on the following terms:
(a1) The Units are to be sold by one of the Managers on a daily basis or otherwise as shall be agreed to 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), (B) the Partnership, through any of the individuals listed as authorized representatives of the Partnership on Exhibit A hereto (which may be updated from time to time by a certificate from the Partnership to the Managers) (the “Authorized Partnership Representatives”) has instructed any of the individuals listed as authorized representatives of such Manager on Exhibit A hereto (which may be updated from time to time by a certificate from such Manager to the Partnership) (the “Authorized Manager Representatives”) by telephone (confirmed promptly by electronic mail) to make such sales, and (C) the Partnership has satisfied its obligations under Section 6 of this Agreement. The Partnership will designate (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 currently effective Registration Statement) and (ii) the minimum price per Unit at which such Units may be sold. Subject to the terms and conditions set forth herein:
(i) the Company and each hereof, such Manager shall use its commercially reasonable efforts to sell on a particular day all of the Underwriters, severally and not jointly, agree to enter into Units designated for the Purchase Contracts underlying sale by the number Partnership on such day. The gross sales price of Firm the Units set forth opposite sold under this Section 3(a) shall be the name 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 Underwriter in Schedule II hereto,
(ii) Units. For the Company and the Trust agree that the Trust will sell to each avoidance of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Trustdoubt, the number of Trust Preferred Securities underlying the number of Firm Units set forth opposite the name of such Underwriter in Schedule II hereto,
(iii) the Company and the Trust agree Partnership shall submit instructions to sell Units to each of the Underwritersonly one Manager, and each of the Underwriters agreesif any, severally and not jointly, to purchase from the Company and the Trust, at a purchase price of $ per Firm Unit, the number of Firm Units set forth opposite the name of such Underwriter in Schedule II hereto, and
(iv) in the event and to the extent that the Underwriters shall exercise the election to enter into additional Purchase Contracts underlying Optional Units as provided in sub-section (b) below,
(1) the Company and each of the Underwriters, severally and not jointly, agree to enter into that number of additional Purchase Contracts as to which such election shall have been exercised (to be adjusted by you so as to eliminate fractional Purchase Contracts) determined by multiplying such number of additional Purchase Contracts by a fraction, the numerator of which is the maximum number of Optional Units set forth opposite the name of such Underwriter in Schedule II hereto and the denominator of which is the maximum number of Optional Units set forth in total opposite the names of all such Underwriters in Schedule II hereto,on any single trading day.
(2) The Partnership acknowledges and agrees that (i) there can be no assurance that any Manager will be successful in selling Units, (ii) no Manager will incur any liability or obligation to the Company 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 to sell such Units as required under this Section 3 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 Trust agree that the Trust will sell Partnership in writing pursuant to each of the Underwriters and each of the Underwriters agrees, severally and not jointly, to purchase from the Trust, a number of Trust Preferred Securities equal to such number of additional Purchase Contracts, andTerms Agreement.
(3) Notwithstanding the Company and foregoing, the Trust agree Partnership, through any of the Authorized Partnership Representatives, may instruct the Authorized Manager Representatives by telephone (confirmed promptly by electronic mail) not to sell Units if such sales cannot be effected at or above the price designated by the Partnership in any such instruction. The Partnership or any Manager may, upon notice to each the other party hereto by telephone (confirmed promptly by electronic mail), suspend or terminate the offering of the Underwriters and each of the Underwriters agrees, severally and not jointly, to purchase from the Company and the Trust at the purchase price set forth in clause (a) of this Section 2, a number of Optional Units equal to such number of additional Purchase Contracts.
(b) The Company and the Trust hereby grant to the Underwriters the right to enter into at their election up to 1,200,000 Optional Units for the sole purpose of covering overallotments in the sale of the Firm Units. Any such election to enter into such additional Purchase Contracts and purchase such Trust Preferred Securities may be exercised only by written notice from you to the Company and the Trust, given within a period of 30 calendar days after the date of this Agreement and setting forth the aggregate number of such additional Purchase Contracts to be entered into and Trust Preferred Securities to be purchased (which shall be an identical number) and the date on which the related Optional Units are to be delivered, as determined by you but in no event earlier than the First Time of Delivery (as defined in Section 3 hereof) or, unless you and the Company otherwise agree in writing, earlier than two or later than ten business days after the date of such notice.
(c) The Underwriters agree to pledge to the Collateral Agent, on behalf of the initial purchasers of the Units, the Trust Preferred Securities underlying the Firm Units and the Optional Units with respect to which such 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 Company parties’ respective obligations with respect to the Units sold hereunder prior to the giving of such notice. During any such period of suspension, the Partnership shall not be obligated to deliver (or cause to be delivered) any of the documents referred to in Sections 4(n)—(p), be deemed to affirm any of the representations or warranties contained in this Agreement, or be obligated to conduct any due diligence session as referred to in Section 4(l) until the termination of the suspension and the Underwriters have entered into Purchase Contracts. Such pledge shall be effected by the delivery by the Underwriters to the Collateral Agent in New York recommencement of the Trust Preferred Securities offering of the Units pursuant to be pledged at the appropriate Time of Delivery this Agreement (as defined below) in accordance with the Pledge Agreementwhich recommencement shall constitute a Representation Date.
(d4) Unless Subject to the context otherwise requires, for purposes terms of this a Terms Agreement, the act Managers may sell Units (i) by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 of entering into the Securities Act, including without limitation sales made directly on the NYSE, on any other existing trading market for the Common Units, (ii) to or through a Purchase Contract and purchasing market maker, or (iii) directly on or through an electronic communication network, a Trust Preferred Security “dark pool” or any similar market venue. Subject to the terms of a Terms Agreement, the Managers may also sell Units by any other method permitted by law, including but not limited to in privately negotiated transactions.
(5) The compensation to each Manager for sales of the Units with respect to which such Manager acts as sales agent under this Agreement shall be referred up to 2% of the gross sales price of the Units sold pursuant to this Section 3(a) and payable as described in Section 3(b) below. The foregoing rate of compensation shall not apply when any Manager acts as principal, in which case the "purchase" of Partnership may sell Units to such Manager as principal at a Unit.price mutually agreed upon at the relevant Applicable Time pursuant to a
Appears in 1 contract
Sale of Units. On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Partnership agrees to issue and sell through the Manager, acting as a sales agent, and the Manager agrees to use its commercially reasonable efforts to sell, as agent for the Partnership, the Units on the following terms:
(a1) The Units are to be sold by the Manager on a daily basis or otherwise as shall be agreed to by the Partnership and the 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), (B) the Partnership, through any of the individuals listed as authorized representatives of the Partnership on Exhibit A hereto (which may be updated from time to time by a certificate from the Partnership to the Manager) (the “Authorized Partnership Representatives”) has instructed any of the individuals listed as authorized representatives of the Manager on Exhibit A hereto (which may be updated from time to time by a certificate from the Manager to the Partnership) (the “Authorized Manager Representatives”) by telephone (confirmed promptly by electronic mail) to make such sales, and (C) the Partnership has satisfied its obligations under Section 6. of this Agreement. The Partnership will designate the maximum number of Units to be sold and the minimum price per Unit at which such Units may be sold by the Manager daily as agreed to by the Manager (in any event not in excess of the amount of Units available for issuance under the currently effective Registration Statement). Subject to the terms and conditions set forth herein:
(i) hereof, the Company and each Manager shall use its commercially reasonable efforts to sell on a particular day all of the Underwriters, severally and not jointly, agree to enter into Units designated for the Purchase Contracts underlying sale by the number Partnership on such day. The gross sales price of Firm the Units set forth opposite sold under this Section 3(a) shall be the name market price for the Partnership’s Common Units sold by the Manager under this Section 3(a) on the NYSE at the time of sale of such Underwriter in Schedule II hereto,
(ii) Units. For the Company and the Trust agree that the Trust will sell to each avoidance of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Trustdoubt, the number of Trust Preferred Securities underlying the number of Firm Units set forth opposite the name of such Underwriter in Schedule II hereto,
(iii) the Company and the Trust agree Partnership shall submit instructions to sell Units to each of the Underwritersonly one Manager, and each of the Underwriters agreesif any, severally and not jointly, to purchase from the Company and the Trust, at a purchase price of $ per Firm Unit, the number of Firm Units set forth opposite the name of such Underwriter in Schedule II hereto, and
(iv) in the event and to the extent that the Underwriters shall exercise the election to enter into additional Purchase Contracts underlying Optional Units as provided in sub-section (b) below,
(1) the Company and each of the Underwriters, severally and not jointly, agree to enter into that number of additional Purchase Contracts as to which such election shall have been exercised (to be adjusted by you so as to eliminate fractional Purchase Contracts) determined by multiplying such number of additional Purchase Contracts by a fraction, the numerator of which is the maximum number of Optional Units set forth opposite the name of such Underwriter in Schedule II hereto and the denominator of which is the maximum number of Optional Units set forth in total opposite the names of all such Underwriters in Schedule II hereto,on any single trading day.
(2) The Partnership acknowledges and agrees that (i) there can be no assurance that the Company Manager will be successful in selling Units, (ii) no Manager will incur any 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 the Manager to use its commercially reasonable efforts consistent with its normal trading and sales practices to sell such Units as required under this Section 3 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 the Manager and the Trust agree that the Trust will sell Partnership in writing pursuant to each of the Underwriters and each of the Underwriters agrees, severally and not jointly, to purchase from the Trust, a number of Trust Preferred Securities equal to such number of additional Purchase Contracts, andTerms Agreement.
(3) Notwithstanding the Company and foregoing, the Trust agree Partnership, through any of the Authorized Partnership Representatives, may instruct the Authorized Manager Representatives by telephone (confirmed promptly by electronic mail) not to sell Units if such sales cannot be effected at or above the price designated by the Partnership in any such instruction. The Partnership or the Manager may, upon notice to each the other party hereto by telephone (confirmed promptly by electronic mail), suspend or terminate the offering of the Underwriters and each of the Underwriters agrees, severally and not jointly, to purchase from the Company and the Trust at the purchase price set forth in clause (a) of this Section 2, a number of Optional Units equal to such number of additional Purchase Contracts.
(b) The Company and the Trust hereby grant to the Underwriters the right to enter into at their election up to 1,200,000 Optional Units for the sole purpose of covering overallotments in the sale of the Firm Units. Any such election to enter into such additional Purchase Contracts and purchase such Trust Preferred Securities may be exercised only by written notice from you to the Company and the Trust, given within a period of 30 calendar days after the date of this Agreement and setting forth the aggregate number of such additional Purchase Contracts to be entered into and Trust Preferred Securities to be purchased (which shall be an identical number) and the date on which the related Optional Units are to be delivered, as determined by you but in no event earlier than the First Time of Delivery (as defined in Section 3 hereof) or, unless you and the Company otherwise agree in writing, earlier than two or later than ten business days after the date of such notice.
(c) The Underwriters agree to pledge to the Collateral Agent, on behalf of the initial purchasers of the Units, the Trust Preferred Securities underlying the Firm Units and the Optional Units with respect to which the Company 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 hereunder prior to the giving of such notice. During any such period of suspension, the Partnership shall not be obligated to deliver (or cause to be delivered) any of the documents referred to in Sections 4(n)–(p), be deemed to affirm any of the representations or warranties contained in this Agreement, or be obligated to conduct any due diligence session as referred to in Section 4(l) until the termination of the suspension and the Underwriters have entered into Purchase Contractsrecommencement of the offering of the Units pursuant to this Agreement (which recommencement shall constitute a Representation Date.
(4) Subject to the terms of a Terms Agreement, the Manager may sell Units (i) by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 of the Securities Act, including without limitation sales made directly on the NYSE, on any other existing trading market for the Common Units, (ii) to or through a market maker, or (iii) directly on or through an electronic communication network, a “dark pool” or any similar market venue. Such pledge Subject to the terms of a Terms Agreement, the Manager may also sell Units by any other method permitted by law, including but not limited to in privately negotiated transactions.
(5) The compensation to the Manager for sales of the Units with respect to which the Manager acts as sales agent under this Agreement shall be effected up to 2% of the gross sales price of the Units sold pursuant to this Section 3(a) and payable as described in Section 3(b) below. The foregoing rate of compensation shall not apply when the Manager acts as principal, in which case the Partnership may sell Units to the Manager as principal at a price mutually agreed upon at the relevant Applicable Time pursuant to a Terms Agreement.
(6) The Manager, acting as sales 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 each day in which the Units with respect to which the Manager is acting as sales agent are sold under this Section 3(a) setting forth the number of the Units sold on such day, the aggregate gross sales proceeds, the compensation payable by the delivery by the Underwriters Partnership to the Collateral Agent in New York of Manager with respect to such sales and the Trust Preferred Securities to be pledged at the appropriate Time of Delivery Net Proceeds (as defined below) in accordance with payable to the Pledge AgreementPartnership.
(d) Unless the context otherwise requires, for purposes of this Agreement, the act of entering into a Purchase Contract and purchasing a Trust Preferred Security shall be referred to as the "purchase" of a Unit.
Appears in 1 contract
Samples: Equity Distribution Agreement (SunCoke Energy Partners, L.P.)
Sale of Units. On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Partnership agrees to issue and sell through the Manager, acting as sales agent, and the Manager agrees to use its commercially reasonable efforts to sell, as agent for the Partnership, the Units on the following terms:
(a1) The Units are to be sold by the Manager on a daily basis or otherwise as shall be agreed to by the Partnership and the Manager 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 Partnership, through any of the individuals listed as authorized representatives of the Partnership on Exhibit A hereto (which may be updated from time to time by a certificate from the Partnership to the Manager) (the “Authorized Partnership Representatives”) has instructed any of the individuals listed as authorized representatives of the Manager on Exhibit A hereto (which may be updated from time to time by a certificate from the Manager to the Partnership) (the “Authorized Manager Representatives”) by telephone (confirmed promptly by electronic mail) to make such sales, and (C) the Partnership has satisfied its obligations under Section 6 of this Agreement. The Partnership will designate (i) the maximum amount of the Units to be sold by the Manager daily as agreed to by the Manager (in any event not in excess of the amount available for issuance under the Prospectus and the currently effective Registration Statement) and (ii) the minimum price per Unit at which such Units may be sold. Subject to the terms and conditions set forth herein:hereof, the Manager shall use its commercially reasonable efforts to sell on a particular day all of the Units designated for the sale by the Partnership on such day. The gross sales price of the Units sold under this Section 3(a) shall be the market price for the Partnership’s Common Units sold by the Manager under this Section 3(a) on the NASDAQ 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.
(2) The Partnership acknowledges and agrees that (i) there can be no assurance that the Company and each of the UnderwritersManager will be successful in selling Units, severally and not jointly, agree to enter into the Purchase Contracts underlying the number of Firm Units set forth opposite the name of such Underwriter in Schedule II hereto,
(ii) the Company Manager will not incur any 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 the Manager to use its commercially reasonable efforts consistent with its normal trading and the Trust agree that the Trust will sales practices to sell to each of the Underwriters, such Units as required under this Section 3 and each of the Underwriters agrees, severally and not jointly, to purchase from the Trust, the number of Trust Preferred Securities underlying the number of Firm Units set forth opposite the name of such Underwriter in Schedule II hereto,
(iii) the Company Manager shall be under no obligation to purchase Units on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Manager and the Trust agree Partnership in writing pursuant to sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Company and the Trust, at a purchase price of $ per Firm Unit, the number of Firm Units set forth opposite the name of such Underwriter in Schedule II hereto, and
(iv) in the event and to the extent that the Underwriters shall exercise the election to enter into additional Purchase Contracts underlying Optional Units as provided in sub-section (b) below,
(1) the Company and each of the Underwriters, severally and not jointly, agree to enter into that number of additional Purchase Contracts as to which such election shall have been exercised (to be adjusted by you so as to eliminate fractional Purchase Contracts) determined by multiplying such number of additional Purchase Contracts by a fraction, the numerator of which is the maximum number of Optional Units set forth opposite the name of such Underwriter in Schedule II hereto and the denominator of which is the maximum number of Optional Units set forth in total opposite the names of all such Underwriters in Schedule II hereto,
(2) the Company and the Trust agree that the Trust will sell to each of the Underwriters and each of the Underwriters agrees, severally and not jointly, to purchase from the Trust, a number of Trust Preferred Securities equal to such number of additional Purchase Contracts, andTerms Agreement.
(3) Notwithstanding the Company and foregoing, the Trust agree Partnership, through any of the Authorized Partnership Representatives, may instruct the Authorized Manager Representatives by telephone (confirmed promptly by electronic mail) not to sell Units if such sales cannot be effected at or above the price designated by the Partnership in any such instruction. The Partnership or the Manager may, upon notice to each the other party hereto by telephone (confirmed promptly by electronic mail), suspend or terminate the offering of the Underwriters and each of the Underwriters agrees, severally and not jointly, to purchase from the Company and the Trust at the purchase price set forth in clause (a) of this Section 2, a number of Optional Units equal to such number of additional Purchase Contracts.
(b) The Company and the Trust hereby grant to the Underwriters the right to enter into at their election up to 1,200,000 Optional Units for the sole purpose of covering overallotments in the sale of the Firm Units. Any such election to enter into such additional Purchase Contracts and purchase such Trust Preferred Securities may be exercised only by written notice from you to the Company and the Trust, given within a period of 30 calendar days after the date of this Agreement and setting forth the aggregate number of such additional Purchase Contracts to be entered into and Trust Preferred Securities to be purchased (which shall be an identical number) and the date on which the related Optional Units are to be delivered, as determined by you but in no event earlier than the First Time of Delivery (as defined in Section 3 hereof) or, unless you and the Company otherwise agree in writing, earlier than two or later than ten business days after the date of such notice.
(c) The Underwriters agree to pledge to the Collateral Agent, on behalf of the initial purchasers of the Units, the Trust Preferred Securities underlying the Firm Units and the Optional Units with respect to which the Company 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 hereunder prior to the giving of such notice. During any such period of suspension, the Partnership shall not be obligated to deliver (or cause to be delivered) any of the documents referred to in Sections 4(n) through 4(u), be deemed to affirm any of the representations or warranties contained in this Agreement, or be obligated to conduct any due diligence session as referred to in Section 4(l) until the termination of the suspension and the Underwriters have entered into Purchase Contractsrecommencement of the offering of the Units pursuant to this Agreement (which recommencement shall constitute a Representation Date).
(4) Subject to the terms of a Terms Agreement, the Manager may sell Units (i) by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 of the Securities Act, including without limitation sales made directly on the NASDAQ, on any other existing trading market for the Common Units, (ii) to or through a market maker, or (iii) directly on or through an electronic communication network, a “dark pool” or any similar market venue. Such pledge Subject to the terms of a Terms Agreement, the Manager may also sell Units by any other method permitted by law, including but not limited to in privately negotiated transactions.
(5) The compensation to the Manager for sales of the Units with respect to which the Manager acts as sales agent under this Agreement shall be effected up to 2.0% of the gross sales price of the Units sold pursuant to this Section 3(a) and payable as described in Section 3(b) below. The foregoing rate of compensation shall not apply when the Manager acts as principal, in which case the Partnership may sell Units to the Manager as principal at a price mutually agreed upon at the relevant Applicable Time pursuant to a Terms Agreement.
(6) The Manager acting as sales agent hereunder shall provide written confirmation (which may be by facsimile or electronic mail) to the Partnership following the close of trading on the NASDAQ each day in which the Units with respect to which the Manager is acting as sales agent are sold under this Section 3(a) setting forth the number of the Units sold on such day, the aggregate gross sales proceeds, the compensation payable by the delivery by the Underwriters Partnership to the Collateral Agent in New York of Manager with respect to such sales and the Trust Preferred Securities to be pledged at the appropriate Time of Delivery Net Proceeds (as defined below) in accordance with payable to the Pledge AgreementPartnership.
(d) Unless the context otherwise requires, for purposes of this Agreement, the act of entering into a Purchase Contract and purchasing a Trust Preferred Security shall be referred to as the "purchase" of a Unit.
Appears in 1 contract
Samples: Equity Distribution Agreement (Golar LNG Partners LP)
Sale of Units. On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Partnership agrees to issue and sell through the Managers, acting as sales agents, and each Manager agrees to use its commercially reasonable efforts to sell, as agent for the Partnership, the Units on the following terms:
(a1) The Units are to be sold by one of the Managers on a daily basis or otherwise as shall be agreed to 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, a “Trading Day”), (B) the Partnership, through any of the individuals listed as authorized representatives of the Partnership on Exhibit A hereto (which may be updated from time to time by a certificate from the Partnership to the Managers) (the “Authorized Partnership Representatives”) has instructed any of the individuals listed as authorized representatives of such Manager on Exhibit A hereto (which may be updated from time to time by a certificate from such Manager to the Partnership) (the “Authorized Manager Representatives”) by telephone (confirmed promptly by electronic mail) to make such sales, and (C) the Partnership has satisfied its obligations under Section 6 of this Agreement. The Partnership will designate (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 currently effective Registration Statement) and (ii) the minimum price per Unit at which such Units may be sold. Subject to the terms and conditions set forth herein:
(i) the Company and each hereof, such Manager shall use its commercially reasonable efforts to sell on a particular day all of the Underwriters, severally and not jointly, agree to enter into Units designated for the Purchase Contracts underlying sale by the number Partnership on such day. The gross sales price of Firm the Units set forth opposite sold under this Section 3(a) shall be the name 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 Underwriter in Schedule II hereto,
(ii) Units. For the Company and the Trust agree that the Trust will sell to each avoidance of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Trustdoubt, the number of Trust Preferred Securities underlying the number of Firm Units set forth opposite the name of such Underwriter in Schedule II hereto,
(iii) the Company and the Trust agree Partnership shall submit instructions to sell Units to each of the Underwritersonly one Manager, and each of the Underwriters agreesif any, severally and not jointly, to purchase from the Company and the Trust, at a purchase price of $ per Firm Unit, the number of Firm Units set forth opposite the name of such Underwriter in Schedule II hereto, and
(iv) in the event and to the extent that the Underwriters shall exercise the election to enter into additional Purchase Contracts underlying Optional Units as provided in sub-section (b) below,
(1) the Company and each of the Underwriters, severally and not jointly, agree to enter into that number of additional Purchase Contracts as to which such election shall have been exercised (to be adjusted by you so as to eliminate fractional Purchase Contracts) determined by multiplying such number of additional Purchase Contracts by a fraction, the numerator of which is the maximum number of Optional Units set forth opposite the name of such Underwriter in Schedule II hereto and the denominator of which is the maximum number of Optional Units set forth in total opposite the names of all such Underwriters in Schedule II hereto,on any single Trading Day.
(2) The Partnership acknowledges and agrees that (i) there can be no assurance that any Manager will be successful in selling Units, (ii) no Manager will incur any liability or obligation to the Company 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 to sell such Units as required under this 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 Trust agree that the Trust will sell Partnership in writing pursuant to each of the Underwriters and each of the Underwriters agrees, severally and not jointly, to purchase from the Trust, a number of Trust Preferred Securities equal to such number of additional Purchase Contracts, andTerms Agreement.
(3) The Partnership or any Manager may, upon notice to the Company and other party hereto by telephone (confirmed promptly by electronic mail), suspend or terminate the Trust agree to sell to each offering of the Underwriters and each of the Underwriters agrees, severally and not jointly, to purchase from the Company and the Trust at the purchase price set forth in clause (a) of this Section 2, a number of Optional Units equal to such number of additional Purchase Contracts.
(b) The Company and the Trust hereby grant to the Underwriters the right to enter into at their election up to 1,200,000 Optional Units for the sole purpose of covering overallotments in the sale of the Firm Units. Any such election to enter into such additional Purchase Contracts and purchase such Trust Preferred Securities may be exercised only by written notice from you to the Company and the Trust, given within a period of 30 calendar days after the date of this Agreement and setting forth the aggregate number of such additional Purchase Contracts to be entered into and Trust Preferred Securities to be purchased (which shall be an identical number) and the date on which the related Optional Units are to be delivered, as determined by you but in no event earlier than the First Time of Delivery (as defined in Section 3 hereof) or, unless you and the Company otherwise agree in writing, earlier than two or later than ten business days after the date of such notice.
(c) The Underwriters agree to pledge to the Collateral Agent, on behalf of the initial purchasers of the Units, the Trust Preferred Securities underlying the Firm Units and the Optional Units with respect to which such 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 Company parties’ respective obligations with respect to the Units sold hereunder prior to the giving of such notice. During any such period of suspension, the Partnership shall not be obligated to deliver (or cause to be delivered) any of the documents referred to in Sections 4(n)–(p), be deemed to affirm any of the representations or warranties contained in this Agreement, or be obligated to conduct any due diligence session as referred to in Section 4(l) until the termination of the suspension and the Underwriters have entered into Purchase Contractsrecommencement of the offering of the Units pursuant to this Agreement (which recommencement shall constitute a Representation Date.
(4) Subject to the terms of a Terms Agreement, the Managers may sell Units (i) by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 of the Securities Act, including without limitation sales made directly on the NYSE, on any other existing trading market for the Common Units, (ii) to or through a market maker, or (iii) directly on or through an electronic communication network, a “dark pool” or any similar market venue. Such pledge Subject to the terms of a Terms Agreement, the Managers may also sell Units by any other method permitted by law, including but not limited to in privately negotiated transactions.
(5) The compensation to each Manager for sales of the Units with respect to which such Manager acts as sales agent under this Agreement shall be effected up to 2.0% of the gross sales price of the Units sold pursuant to this Section 3(a) and payable as described in Section 3(b) 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 Manager as principal at a price mutually agreed upon at the relevant Applicable Time pursuant to a Terms Agreement.
(6) Each Manager acting as sales 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 each day in which the Units with respect to which such Manager is acting as sales agent are sold under this Section 3(a) setting forth the number of the Units sold on such day, the aggregate gross sales proceeds, the compensation payable by the delivery by Partnership to such Manager with respect to such sales and the Underwriters to the Collateral Agent in New York of the Trust Preferred Securities to be pledged at the appropriate Time of Delivery Net Proceeds (as defined below) payable to the Partnership. At each Manager’s election, such compensation shall either be (i) set forth and invoiced in accordance periodic statements from such Manager to the Partnership, with payment to be made by the Pledge AgreementPartnership promptly after its receipt thereof or (ii) deducted by the Manager from the payment of the gross sales proceeds to the Partnership as set forth in Section 3(b) below.
(d) Unless the context otherwise requires, for purposes of this Agreement, the act of entering into a Purchase Contract and purchasing a Trust Preferred Security shall be referred to as the "purchase" of a Unit.
Appears in 1 contract
Samples: Equity Distribution Agreement (Rose Rock Midstream, L.P.)
Sale of Units. (a) Subject to the terms and conditions set forth herein:
(i) the Company and each of the Underwriters, severally and not jointly, agree to enter into the Purchase Contracts underlying the number of Firm Units set forth opposite the name of such Underwriter in Schedule II hereto,
(ii) the Company and the Trust agree that the Trust will sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Trust, at a purchase price of $_____ per Trust Preferred Security, the number of Trust Preferred Securities underlying the number of Firm Units set forth opposite the name of such Underwriter in Schedule II hereto,
(iii) the Company and the Trust agree to sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Company and the Trust, at a purchase price of $ per Firm Unit, the number of Firm Units set forth opposite the name of such Underwriter in Schedule II hereto, and
(iviii) in the event and to the extent that the Underwriters shall exercise the election to enter into additional Purchase Contracts underlying Optional Units as provided in sub-section (b) below,
(1) the Company and each of the Underwriters, severally and not jointly, agree to enter into that number of additional Purchase Contracts as to which such election shall have been exercised (to be adjusted by you so as to eliminate fractional Purchase Contracts) determined by multiplying such number of additional Purchase Contracts by a fraction, the numerator of which is the maximum number of Optional Units set forth opposite the name of such Underwriter in Schedule II hereto and the denominator of which is the maximum number of Optional Units set forth in total opposite the names of all such Underwriters in Schedule II hereto,, and
(2) the Company and the Trust agree that the Trust will sell to each of the Underwriters and each of the Underwriters agrees, severally and not jointly, to purchase from the Trust, a number of Trust Preferred Securities equal to such number of additional Purchase Contracts, and
(3) the Company and the Trust agree to sell to each of the Underwriters and each of the Underwriters agrees, severally and not jointly, to purchase from the Company and the Trust at the purchase price set forth in clause (a) of this Section 2, a number of Optional Units Trust Preferred Securities equal to such number of additional Purchase Contracts.
(b) The Company and the Trust hereby grant grants to the Underwriters the right to enter into at their election up to 1,200,000 to____Purchase Contracts underlying Optional Units and the Company and the Trust hereby grant the Underwriters the right to purchase from the Trust at their election up to____Trust Preferred Securities, for the sole purpose of covering overallotments in the sale of the Firm Units. Any such election to enter into such additional Purchase Contracts and purchase such Trust Preferred Securities may be exercised only by written notice from you to the Company and the Trust, given within a period of 30 calendar days after the date of this Agreement and setting forth the aggregate number of such additional Purchase Contracts to be entered into and Trust Preferred Securities to be purchased (which shall be an identical number) and the date on which the related Optional Units are to be delivered, as determined by you but in no event earlier than the First Time of Delivery (as defined in Section 3 4 hereof) or, unless you and the Company otherwise agree in writing, earlier than two or later than ten business days after the date of such notice.
(c) The Underwriters agree to pledge to the Collateral Agent, on behalf of the initial purchasers of the Units, the Trust Preferred Securities underlying the Firm Units and the Optional Units with respect to which the Company and the Underwriters have entered into Purchase Contracts. Such pledge shall be effected by the delivery by the Underwriters to the Collateral Agent in New York of the Trust Preferred Securities to be pledged at the appropriate Time of Delivery (as defined below) in accordance with the Pledge Agreement.
(d) The Underwriters further agree to sell, on behalf of the initial purchasers of the Units, to the Call Option Holder a Call Option with respect to each Trust Preferred Security purchased at a purchase price of $____ per Call Option at the appropriate Time of Delivery.
(e) Unless the context otherwise requires, for purposes of this Agreement, the act of entering into a Purchase Contract and Contract, purchasing a Trust Preferred Security and selling a Call Option with respect to such Trust Preferred Security shall be referred to as the "purchase" of a Unit.
Appears in 1 contract
Sale of Units. Borrower may enter into Sales Contracts for the construction and sale of a Home, provided that (a) Subject to Lender has approved the terms standard form of the Sales Contract, and conditions (b) the purchase price for the Home is not less than the minimum sale price for said Home as set forth herein:
in the price schedule attached hereto as EXHIBIT "E" and approved by Lender. Upon the sale of each Home pursuant to a Sales Contract, Lender agrees to release each Home from the lien of the Mortgage upon the payment of: (i) the Company a release fee of One Hundred and each of the Underwriters, severally and not jointly, agree to enter into the Purchase Contracts underlying the number of Firm Units set forth opposite the name of such Underwriter in Schedule II hereto,
No/100 Dollars ($100.00) per Home; plus (ii) the Company and "Net Sales Proceeds" (as hereinafter defined), which in no event shall be less than the Trust agree that the Trust will sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Trust, the number of Trust Preferred Securities underlying the number of Firm Units set forth opposite the name of applicable minimum release price for such Underwriter in Schedule II hereto,
(iii) the Company and the Trust agree to sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Company and the Trust, at a purchase price of $ per Firm Unit, the number of Firm Units set forth opposite the name of such Underwriter in Schedule II hereto, and
(iv) in the event and to the extent that the Underwriters shall exercise the election to enter into additional Purchase Contracts underlying Optional Units Home as provided in sub-section (b) below,
(1) the Company and each of the Underwriters, severally and not jointly, agree to enter into that number of additional Purchase Contracts as to which such election shall have been exercised (to be adjusted by you so as to eliminate fractional Purchase Contracts) determined by multiplying such number of additional Purchase Contracts by a fraction, the numerator of which is the maximum number of Optional Units set forth opposite the name of such Underwriter in Schedule II hereto and the denominator of which is the maximum number of Optional Units set forth in total opposite said EXHIBIT "E" attached hereto. The Net Sales Proceeds shall be applied by Lender as follows: Until the names Site Improvement Loan is paid in full, the first THIRTY-NINE THOUSAND FOUR HUNDRED AND NO/100 DOLLARS ($39,400.00) of all such Underwriters Net Sales Proceeds per Home will be used to reduce the Site Improvement Loan, with the balance of Net Sales Proceeds (but in Schedule II hereto,
(2) the Company and the Trust agree that the Trust will sell to each no event shall Lender receive less than 100% of the Underwriters and each amount of the Underwriters agreesRevolving Credit Loan allocated to construct such Home) to be applied against the Revolving Credit Loan until the Revolving Credit Loan is paid in full. After the Site Improvement Loan is paid in full the Net Sales Proceeds (but in no event less than 100% of the amount of the Revolving Credit Loan allocated to construct such Home) shall be used to reduce the Revolving Credit Loan, severally until the Revolving Credit Loan is paid in full, and not jointlyany excess Net Sales Proceeds after the Site Improvement Loan and Revolving Credit Loan have been paid in full, shall then be deposited in Borrower's operating account maintained with Lender until Lender has no further obligation to purchase from make Loan Advances under this Agreement or the TrustLoan Documents. As used herein, a number of Trust Preferred Securities the phrase "Net Sales Proceeds" shall refer to the amount equal to such number of additional Purchase Contracts, and
(3v) the Company and the Trust agree to sell to each of the Underwriters and each of the Underwriters agrees, severally and not jointly, to purchase from the Company and the Trust at the purchase price set forth in clause the Sales Contract regarding such Home, as adjusted by customary real estate tax prorations between Borrower and said purchaser, plus (aw) the price of all "extras" purchased by said purchaser or otherwise owed by said purchaser to Borrower under said Sales Contract, minus (x) all customary transfer taxes, title and escrow charges, recording fees, surveyor's fees, reasonable attorney's fees, (y) customary brokerage commissions paid by Borrower in connection with the sale of such Home (the total of all of the brokerage commissions not to exceed 1% of the gross Sales Price of the Home), the xxxxxxx money deposit as set forth in each approval Sales Contract for each Home, and an amount equal to three and one-half (3 1/2%) percent of the purchase price to cover the cost of Borrower's overhead, including costs of Borrower's employees and (z) FIFTEEN THOUSAND DOLLARS ($15,000.00) per Home paid to Subordinated Lender to be applied against the Subordinated Loan provided such FIFTEEN THOUSAND DOLLAR ($15,000.00) per Home payment to Subordinated Lender shall not occur unless the minimum release payments of Net Sales Proceeds required under the first paragraph of this Section 2, a number of Optional Units equal 2.8 have been paid to such number of additional Purchase Contracts.
(b) The Company and the Trust hereby grant Lender. Notwithstanding anything to the Underwriters contrary contained herein, the right FIFTEEN THOUSAND DOLLAR ($15,000.00) per Home payment to enter into at their election up Subordinated Lender shall cease to 1,200,000 Optional Units for be paid to Subordinated Lender upon the sole purpose exercise by Subordinated Lender of covering overallotments in the sale any of its rights with regard to any of the Firm Units. Any such election to enter into such additional Purchase Contracts and purchase such Trust Preferred Securities may be exercised only by written notice from you to limited partnership interests in Borrower following the Company and the Trust, given within a period of 30 calendar days after the date of this Agreement and setting forth the aggregate number of such additional Purchase Contracts to be entered into and Trust Preferred Securities to be purchased (which shall be an identical number) and the date on which the related Optional Units are to be delivered, as determined by you but in no event earlier than the First Time of Delivery (as defined in Section 3 hereof) or, unless you and the Company otherwise agree in writing, earlier than two or later than ten business days after the date of such notice.
(c) The Underwriters agree to pledge to the Collateral Agent, on behalf of the initial purchasers of the Units, the Trust Preferred Securities underlying the Firm Units and the Optional Units with respect to which the Company and the Underwriters have entered into Purchase Contracts. Such pledge shall be effected by the delivery by the Underwriters to the Collateral Agent in New York of the Trust Preferred Securities to be pledged at the appropriate Time of Delivery (as defined below) in accordance with the Pledge Agreement.
(d) Unless the context otherwise requires, for purposes of this Agreement, the act of entering into a Purchase Contract and purchasing a Trust Preferred Security shall be referred to as the "purchase" occurrence of a Unitdefault or an event of default under the Subordinated Loan Documents.
Appears in 1 contract
Samples: Loan Agreement (United Homes Inc)
Sale of Units. (a) Subject With respect to the Proposed Terminated Units, during the period from the date of such notice given pursuant to Section 10.1 to the Termination Date, the Lessee, as agent for the Lessor and at the Lessee's sole cost and expense, shall use its reasonable efforts to obtain bids from Persons other than the Lessee or Affiliates thereof for the cash purchase of the Proposed Terminated Units on the Termination Date, and it shall promptly, and in any event at least ten Business Days prior to the proposed date of sale, certify to the Lessor in writing the amount and terms of each such bid and conditions set forth herein:
the name and address of the party submitting such bid. The Lessor and the Owner Participant shall have the right, at its own expense, to obtain bids for the purchase of the Proposed Terminated Units, either directly or through agents other than the Lessee, from the Owner Participant or other Persons, but shall be under no duty to solicit bids, inquire into the efforts of the Lessee to obtain bids or otherwise take any action in connection with arranging such sale. Unless the Lessor shall have elected to retain the Proposed Terminated Units in accordance with Section 10.3, subject to Section 10.2(b), on the Termination Date: (i) the Company and each Lessee shall, subject to receipt (x) by the Indenture Trustee or, if the Lien of the UnderwritersIndenture has been discharged, severally the Lessor of all amounts owing to the Lessor pursuant to the next sentence, and (y) by any other Persons entitled thereto of all unpaid Supplemental Rent accrued on or before the Termination Date, deliver the Proposed Terminated Units to the bidder (which shall not jointlybe the Lessee or any Affiliate thereof), agree if any, which shall have submitted the highest cash bid prior to enter into such date for such Proposed Terminated Units (or to such other bidder as the Purchase Contracts underlying Lessee and the number of Firm Units set forth opposite the name of such Underwriter in Schedule II hereto,
Lessor shall agree); and (ii) the Company and Lessor shall, without recourse or warranty (except as to the Trust agree that absence of any Lessor's Lien attributable to the Trust will sell to each Lessor) simultaneously therewith (including with the receipt of the Underwritersamounts described in clause (i) above by the Persons entitled to receive such amounts) sell such Proposed Terminated Units "as-is, where-is" to such bidder. The cash selling price realized at such sale shall be paid to and retained by the Indenture Trustee or, if the Lien of the Indenture has been discharged, the Lessor (after reimbursement to the Lessee of all of its costs and expenses in connection with such sale) and, in addition, on the Termination Date, the Lessee shall pay to (A) the Indenture Trustee or, if the Lien of the Indenture has been discharged, the Lessor (x) all unpaid Basic Rent due and payable prior to, and each of the Underwriters agrees, severally and not jointly, to purchase from the Trustin arrears on, the number of Trust Preferred Securities underlying the number of Firm Units set forth opposite the name of such Underwriter in Schedule II hereto,
Termination Date, and (iiiy) the Company and the Trust agree to sell to each excess, if any, of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Company and the Trust, at a purchase price of $ per Firm Unit, the number of Firm Units set forth opposite the name of such Underwriter in Schedule II hereto, and
(iv) in the event and to the extent that the Underwriters shall exercise the election to enter into additional Purchase Contracts underlying Optional Units as provided in sub-section (b) below,
(1) the Company and each Termination Value for all of the UnderwritersUnits computed as of the Termination Date, severally and not jointly, agree to enter into that number of additional Purchase Contracts as to which such election shall have been exercised (to be adjusted by you so as to eliminate fractional Purchase Contracts) determined by multiplying such number of additional Purchase Contracts by a fraction, the numerator of which is the maximum number of Optional Units set forth opposite the name of such Underwriter in Schedule II hereto and the denominator of which is the maximum number of Optional Units set forth in total opposite the names of all such Underwriters in Schedule II hereto,
over (2) the Company net cash sales proceeds (after the deduction of all costs and expenses of the Lessee, the Lessor, the Indenture Trustee, each holder of a Note and the Trust agree that the Trust will sell to each Owner Participant in connection with such sale of the Underwriters Proposed Terminated Units), (B) the Persons entitled thereto, any other unpaid Supplemental Rent accrued on or before the Termination Date and each (C) without limiting clause (B), an amount equal to the Premium, if any, on the Notes payable on the Termination Date. Neither the Lessee nor any Affiliate thereof shall purchase, lease or otherwise acquire the Proposed Terminated Units or any portion thereof from the purchasing bidder or any Affiliate thereof for a period of three years from the Underwriters agreesTermination Date relating to the Proposed Terminated Units, severally and not jointlysuch prohibition, notwithstanding any provision to the contrary in Section 10.4 or otherwise, to purchase from survive the Trust, a number termination of Trust Preferred Securities equal this Lease with respect to such number of additional Purchase Contracts, and
(3) the Company and the Trust agree to sell to each of the Underwriters and each of the Underwriters agrees, severally and not jointly, to purchase from the Company and the Trust at the purchase price set forth in clause (a) of this Section 2, a number of Optional Units equal to such number of additional Purchase ContractsProposed Terminated Unit.
(b) The Company If (x) the Lessor has not elected to retain the Proposed Terminated Units in accordance with Section 10.3, (y) the Lessee has not withdrawn its termination notice pursuant to Section 10.1 and (z) on the Trust hereby grant to the Underwriters the right to enter into at their election up to 1,200,000 Optional Units for the sole purpose of covering overallotments in the sale of the Firm Units. Any such election to enter into such additional Purchase Contracts and purchase such Trust Preferred Securities may be exercised only by written notice from you to the Company and the TrustTermination Date, given within a period of 30 calendar days after the date of this Agreement and setting forth the aggregate number of such additional Purchase Contracts to be entered into and Trust Preferred Securities to be purchased (which shall be an identical number) and the date on which the related Optional Units are to be delivered, as determined by you but in no event earlier than the First Time of Delivery (as defined bidder described in Section 3 hereof10.2(a) orshall exist, unless you and the Company otherwise agree in writing, earlier than two or later than ten business days after the date of such notice.
(c) The Underwriters agree to pledge to the Collateral Agent, on behalf of the initial purchasers of the Units, the Trust Preferred Securities underlying the Firm Units and the Optional Units this Lease shall continue with respect to which the Company and the Underwriters have entered into Purchase Contracts. Such pledge shall be effected by the delivery by the Underwriters to the Collateral Agent in New York of the Trust Preferred Securities to be pledged at the appropriate Time of Delivery (as defined below) in accordance with the Pledge Agreementsuch Proposed Terminated Units.
(d) Unless the context otherwise requires, for purposes of this Agreement, the act of entering into a Purchase Contract and purchasing a Trust Preferred Security shall be referred to as the "purchase" of a Unit.
Appears in 1 contract
Samples: Lease Agreement (LSB Industries Inc)
Sale of Units. On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Partnership agrees to issue and sell from time to time through the Managers, acting as sales agents, or directly to the Managers acting as principals, and each Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Partnership, the Units on the following terms:
(a1) The Units are to be sold by any one of the Managers on a daily basis or otherwise as shall be agreed to 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) (a “Trading Day”), (B) the Partnership, through any of the individuals listed as authorized representatives of the Partnership on Exhibit A hereto (which may be updated from time to time by a certificate from the Partnership to the Managers) (the “Authorized Partnership Representatives”) has instructed any of the individuals listed as authorized representatives of such Manager on Exhibit A hereto (which may be updated from time to time by a certificate from such Manager to the Partnership) (the “Authorized Manager Representatives”) by telephone (confirmed promptly by electronic mail) to make such sales, and (C) the Partnership has satisfied its obligations under Section 6 of this Agreement. The Partnership will designate (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 currently effective Registration Statement) and (ii) the minimum price per Unit at which such Units may be sold. Subject to the terms and conditions set forth herein:
(i) the Company and each hereof, such Manager shall use its commercially reasonable efforts to sell on a particular day all of the Underwriters, severally and not jointly, agree to enter into Units designated for the Purchase Contracts underlying sale by the number Partnership on such day. The gross sales price of Firm the Units set forth opposite sold under this Section 3(a) shall be the name prevailing 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 Underwriter in Schedule II hereto,
(ii) Units. For the Company and the Trust agree that the Trust will sell to each avoidance of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Trustdoubt, the number of Trust Preferred Securities underlying the number of Firm Units set forth opposite the name of such Underwriter in Schedule II hereto,
(iii) the Company and the Trust agree Partnership shall submit instructions to sell Units to each of the Underwritersonly one Manager, and each of the Underwriters agreesif any, severally and not jointly, to purchase from the Company and the Trust, at a purchase price of $ per Firm Unit, the number of Firm Units set forth opposite the name of such Underwriter in Schedule II hereto, and
(iv) in the event and to the extent that the Underwriters shall exercise the election to enter into additional Purchase Contracts underlying Optional Units as provided in sub-section (b) below,
(1) the Company and each of the Underwriters, severally and not jointly, agree to enter into that number of additional Purchase Contracts as to which such election shall have been exercised (to be adjusted by you so as to eliminate fractional Purchase Contracts) determined by multiplying such number of additional Purchase Contracts by a fraction, the numerator of which is the maximum number of Optional Units set forth opposite the name of such Underwriter in Schedule II hereto and the denominator of which is the maximum number of Optional Units set forth in total opposite the names of all such Underwriters in Schedule II hereto,on any single Trading Day.
(2) The Partnership acknowledges and agrees that (i) there can be no assurance that any Manager will be successful in selling Units, (ii) no Manager will incur any liability or obligation to the Company 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 to sell such Units as required under this Section 3 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 Trust agree that the Trust will sell Partnership in writing pursuant to each of the Underwriters and each of the Underwriters agrees, severally and not jointly, to purchase from the Trust, a number of Trust Preferred Securities equal to such number of additional Purchase Contracts, andTerms Agreement.
(3) Notwithstanding the Company and foregoing, the Trust agree Partnership, through any of the Authorized Partnership Representatives, may instruct the Authorized Manager Representatives by telephone (confirmed promptly by electronic mail) not to sell Units if such sales cannot be effected at or above the price designated by the Partnership in any such instruction. The Partnership or any Manager may, upon notice to each the other party hereto by telephone (confirmed promptly by electronic mail), suspend or terminate the offering of the Underwriters and each of the Underwriters agrees, severally and not jointly, to purchase from the Company and the Trust at the purchase price set forth in clause (a) of this Section 2, a number of Optional Units equal to such number of additional Purchase Contracts.
(b) The Company and the Trust hereby grant to the Underwriters the right to enter into at their election up to 1,200,000 Optional Units for the sole purpose of covering overallotments in the sale of the Firm Units. Any such election to enter into such additional Purchase Contracts and purchase such Trust Preferred Securities may be exercised only by written notice from you to the Company and the Trust, given within a period of 30 calendar days after the date of this Agreement and setting forth the aggregate number of such additional Purchase Contracts to be entered into and Trust Preferred Securities to be purchased (which shall be an identical number) and the date on which the related Optional Units are to be delivered, as determined by you but in no event earlier than the First Time of Delivery (as defined in Section 3 hereof) or, unless you and the Company otherwise agree in writing, earlier than two or later than ten business days after the date of such notice.
(c) The Underwriters agree to pledge to the Collateral Agent, on behalf of the initial purchasers of the Units, the Trust Preferred Securities underlying the Firm Units and the Optional Units with respect to which such 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 Company parties’ respective obligations with respect to the Units sold hereunder prior to the giving of such notice. During any such period of suspension, the Partnership shall not be obligated to deliver (or cause to be delivered) any of the documents referred to in Sections 4(n) through 4(r), be deemed to affirm any of the representations or warranties contained in this Agreement, or be obligated to conduct any due diligence session as referred to in Section 4(l) until the termination of the suspension and the Underwriters have entered into Purchase Contractsrecommencement of the offering of the Units pursuant to this Agreement (which recommencement shall constitute a Representation Date).
(4) Subject to the terms of a Terms Agreement, the Managers may sell Units (i) by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 of the Securities Act, including without limitation sales made directly on the NYSE, on any other trading market for the Common Units, (ii) to or through a market maker, or (iii) directly on or through an electronic communication network, private exchanges or any similar market venues. Such pledge Subject to the terms of a Terms Agreement, the Managers may also sell Units by any other method permitted by law, including but not limited to in privately negotiated transactions or by such other method as shall be effected agreed by the delivery Partnership and such Manager pursuant to a Terms Agreement.
(5) The compensation to each Manager for sales of the Units with respect to which such Manager acts as sales agent under this Agreement shall be up to 2.0% of the gross sales price of the Units sold pursuant to this Section 3(a) and payable as described in Section 3(b) 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 Manager as principal at a price mutually agreed upon at the relevant Applicable Time pursuant to a Terms Agreement.
(6) Each Manager acting as sales 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 each day in which the Units with respect to which such Manager is acting as sales agent are sold under this Section 3(a) setting forth the number of the Units sold on such day, the Gross Proceeds (as defined below), the compensation payable by the Underwriters Partnership to such Manager with respect to such sales and the Collateral Agent in New York of the Trust Preferred Securities to be pledged at the appropriate Time of Delivery Net Proceeds (as defined below) in accordance with payable to the Pledge AgreementPartnership.
(d) Unless the context otherwise requires, for purposes of this Agreement, the act of entering into a Purchase Contract and purchasing a Trust Preferred Security shall be referred to as the "purchase" of a Unit.
Appears in 1 contract
Samples: Equity Distribution Agreement (Black Stone Minerals, L.P.)
