Representations and Warranties of the Partnership Parties. Each of the Partnership Parties, jointly and severally, represents and warrants to, and agrees with, each Underwriter as set forth below in this Section 6. (a) The Partnership meets the requirements for use of Form S-3 under the Act and has prepared and filed with the Commission the Registration Statement, including the Base Prospectus, for registration under the Act of the offering and sale of the Units. The Registration Statement, including all amendments thereto filed prior to the Time of Sale, has become effective. The Partnership has filed with the Commission, as part of an amendment to the Registration Statement or pursuant to Rule 424(b), one or more Preliminary Prospectuses relating to the Units, each of which has previously been furnished to you. The Partnership will file with the Commission a Prospectus relating to the Units in accordance with Rule 424(b). As filed, the Prospectus will comply in all material respects with the Act and the rules and regulations of the Commission thereunder and, except to the extent the Underwriters shall agree in writing to a modification, shall be in all substantive respects in the form furnished to you prior to the Time of Sale or, to the extent not completed at the Time of Sale, shall contain only such specific additional information and other changes (beyond that contained in the Base Prospectus and any Preliminary Prospectus) as the Partnership has advised you, prior to the Time of Sale, will be included or made therein. The Registration Statement, at the Time of Sale, meets the requirements set forth in Rule 415(a)(1)(x). (b) No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued and no proceeding for that purpose has been initiated or, to the knowledge of any of the Partnership Parties, threatened by the Commission. No order preventing or suspending the use of any Preliminary Prospectus or any Issuer Free Writing Prospectus has been issued and no proceeding for that purpose has been initiated or, to the knowledge of the Partnership Parties, threatened by the Commission. (c) On each Effective Date, the Registration Statement did, and when the Prospectus is first filed in accordance with Rule 424(b) of the Rules and Regulations and on the Closing Date and each Option Closing Date, the Prospectus (and any supplement thereto) will comply in all material respects with the applicable requirements of the Act on the Effective Date and at the Time of Sale, the Registration Statement did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading; and on the date of any filing pursuant to Rule 424(b) of the Rules and Regulations and on the Closing Date and each Option Closing Date, the Prospectus (together with any supplement thereto) will not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Partnership makes no representations or warranties as to the information contained in or omitted from the Registration Statement, each Preliminary Prospectus or the Prospectus (or any supplement thereto) in reliance upon and in conformity with information furnished in writing to the Partnership by or on behalf of each Underwriter specifically for inclusion in the Registration Statement, each Preliminary Prospectus or the Prospectus (or any supplement thereto), it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in Section 9(b) hereof. (d) As of the Time of Sale, the Closing Date and each Option Closing Date, (i) the Disclosure Package, and (ii) each electronic road show, if any, when taken together as a whole with the Disclosure Package, did not and will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Partnership makes no representations or warranties as to statements in or omissions from the Disclosure Package based upon and in conformity with written information furnished to the Partnership by or on behalf of any Underwriter specifically for use therein, it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in Section 9(b) hereof. (i) At the earliest time after filing of the Registration Statement that the Partnership or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) of the Rules and Regulations) of the Units and (ii) as of the Time of Sale (with such date being used as the determination date for purposes of this clause (ii)), the Partnership was not and is not an Ineligible Issuer (as defined in Rule 405 of the Rules and Regulations), without taking account of any determination by the Commission pursuant to Rule 405 of the Rules and Regulations that it is not necessary that the Partnership be considered an Ineligible Issuer. (f) Each Issuer Free Writing Prospectus does not include any information that conflicts with the information contained in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus, including any document incorporated by reference therein that has not been superseded or modified; provided, however, that the Partnership makes no representations or warranties as to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with written information furnished to the Partnership by or on behalf of any Underwriter specifically for use therein, it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in Section 9(b) hereof. (g) Each of the Partnership Parties has been duly formed and is validly existing as a limited partnership, limited liability company or corporation, as applicable, in good standing under the laws of its jurisdiction of organization with full power and authority to enter into and perform its respective obligations under this Agreement and consummate the transactions contemplated hereby. Each of the Partnership Entities is duly qualified to do business as a foreign limited partnership, limited liability company or corporation, as applicable, and is in good standing under the laws of each jurisdiction which requires, or at the Closing Date and each Option Closing Date, if any, will require, such qualification, except where the failure to be so qualified would not have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties, taken as a whole, whether or not arising from transactions in the ordinary course of business, on the Partnership Entities, taken as a whole (a “Material Adverse Effect”), or subject the limited partners of the Partnership to any material liability or disability.
Appears in 1 contract
Sources: Underwriting Agreement (Memorial Production Partners LP)
Representations and Warranties of the Partnership Parties. Each of the The Partnership Parties, jointly and severally, represents hereby represent and warrants towarrant to each Underwriter on the date hereof, and agrees with, shall be deemed to represent and warrant to each Underwriter on the Closing Date and any Additional Closing Date, as set forth below in this Section 6.the case may be, that:
(a) The Partnership meets the requirements for use of Form S-3 under the Act Registration Statement has been filed with, and has prepared and filed with the Commission the Registration Statementbeen declared effective by, including the Base Prospectus, for registration under the Act of the offering and sale of the Units. The Registration Statement, including all amendments thereto filed prior to the Time of Sale, has become effective. The Partnership has filed with the Commission, as part of an amendment to the Registration Statement or pursuant to Rule 424(b), one or more Preliminary Prospectuses relating to the Units, each of which has previously been furnished to you. The Partnership will file with the Commission a Prospectus relating to the Units in accordance with Rule 424(b). As filed, the Prospectus will comply in all material respects with the Act and the rules and regulations of the Commission thereunder and, except to the extent the Underwriters shall agree in writing to a modification, shall be in all substantive respects in the form furnished to you prior to the Time of Sale or, to the extent not completed at the Time of Sale, shall contain only such specific additional information and other changes (beyond that contained in the Base Prospectus and any Preliminary Prospectus) as the Partnership has advised you, prior to the Time of Sale, will be included or made therein. The Registration Statement, at the Time of Sale, meets the requirements set forth in Rule 415(a)(1)(x).
(b) No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued and no proceeding for that purpose has been initiated or, to the knowledge of any of the Partnership Parties, threatened by the Commission. No order preventing or suspending the use of any Preliminary Prospectus or any Issuer Free Writing Prospectus has been issued and no proceeding for that purpose has been initiated or, to the knowledge of the Partnership Parties, threatened by the Commission.
(cb) On each Effective Date, The Partnership was not at the time of initial filing of the Registration Statement didand at the earliest time thereafter that the Partnership or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) of the Act) of the Units, is not on the date hereof and will not be on the Closing Date or any Additional Closing Date an “ineligible issuer” (as defined in Rule 405 under the Act).
(c) The Registration Statement conformed in all material respects at the time it initially became effective and the Time of Sale and will conform in all material respects on each of the Closing Date and any Additional Closing Date, if applicable, and any amendment to the Registration Statement filed after the date hereof will conform in all material respects when filed, to the applicable requirements of the Act and the Rules and Regulations. The most recent Preliminary Prospectus conformed, in all material respects, and the Prospectus is first will conform, in all material respects, to the applicable requirements of the Act and the Rules and Regulations when filed in accordance with the Commission pursuant to Rule 424(b) of under the Rules and Regulations and on the Closing Date and each Option any Additional Closing Date, the Prospectus if applicable.
(and any supplement theretod) will comply in all material respects with the applicable requirements The Registration Statement did not, as of the Act on the Effective Date and at the Time of Sale, the Registration Statement did not contain any an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary in order to make the statements therein not misleading; provided that no representation or warranty is made as to information contained in or omitted from the Registration Statement in reliance upon and in conformity with written information furnished to the Partnership Parties through the Representative by or on behalf of any Underwriter specifically for inclusion therein.
(e) The Prospectus will not, as of its date, the date of any filing pursuant to Rule 424(b) of it was filed with the Rules and Regulations and Commission, or on the Closing Date and each Option or any Additional Closing Date, the Prospectus (together with any supplement thereto) will not if applicable, include any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, provided that the Partnership makes no representations representation or warranties warranty is made as to the information contained included in or omitted from the Registration Statement, each Preliminary Prospectus or the Prospectus (or any supplement thereto) in reliance upon and in conformity with written information furnished in writing to the Partnership Parties through the Representative by or on behalf of each any Underwriter specifically for inclusion in the Registration Statement, each Preliminary Prospectus or the Prospectus (or any supplement thereto), it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in Section 9(b) hereoftherein.
(df) As The Time of Sale Information did not, as of the Time of Sale, the Closing Date and each Option Closing Date, (i) the Disclosure Package, and (ii) each electronic road show, if any, when taken together as a whole with the Disclosure Package, did not and will not contain any include an untrue statement of a material fact or omit to state any a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, provided that the Partnership makes no representations representation or warranties warranty is made as to statements information included in or omissions omitted from the Disclosure Package based Time of Sale Information in reliance upon and in conformity with written information furnished to the Partnership Parties through the Representative by or on behalf of any Underwriter specifically for use inclusion therein, it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in Section 9(b) hereof.
(ig) At the earliest time after filing of the Registration Statement No Issuer Free Writing Prospectus (including, without limitation, any road show that the Partnership or another offering participant made is a bona fide offer (within the meaning of free writing prospectus under Rule 164(h)(2) of the Rules and Regulations) of the Units and (ii) as of the Time of Sale (with such date being used as the determination date for purposes of this clause (ii)), the Partnership was not and is not an Ineligible Issuer (as defined in Rule 405 433 of the Rules and Regulations), without taking account when considered together with the Time of any determination by Sale Information at the Commission pursuant Time of Sale, included an untrue statement of a material fact or omitted to Rule 405 state a material fact necessary in order to make the statements therein, in the light of the Rules and Regulations circumstances under which they were made, not misleading; provided that it no representation or warranty is not necessary that the Partnership be considered an Ineligible Issuer.
(f) Each Issuer Free Writing Prospectus does not include any information that conflicts with the information contained in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus, including any document incorporated by reference therein that has not been superseded or modified; provided, however, that the Partnership makes no representations or warranties made as to statements information included in or omissions omitted from any Issuer Free Writing Prospectus based the Time of Sale Information in reliance upon and in conformity with written information furnished to the Partnership Parties through the Representative by or on behalf of any Underwriter specifically for use inclusion therein, it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in Section 9(b) hereof.
(gh) Each Issuer Free Writing Prospectus conformed or will conform in all material respects to the requirements of the Act and the Rules and Regulations on the date of first use, and the Partnership has complied with all prospectus delivery and any filing requirements applicable to such Issuer Free Writing Prospectus pursuant to the Rules and Regulations. The Partnership has not made any offer relating to the Units that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Representative. The Partnership has retained in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses that were not required to be filed pursuant to the Rules and Regulations. The Partnership has taken all actions necessary so that any “road show” (as defined in Rule 433 of the Rules and Regulations) in connection with the offering of the Units will not be required to be filed pursuant to the Rules and Regulations.
(i) From the time of filing of the Registration Statement through the date hereof, the Partnership has been and is an Emerging Growth Company.
(j) The Partnership (i) has not alone engaged in any Testing-the-Waters Communication, (ii) has not authorized anyone to engage in such communications, other than the Representative, and (iii) has not distributed or approved for distribution any Testing-the-Waters Communication that is a “written communication” within the meaning of Rule 405 under the Act, other than those listed on Schedule VI hereto.
(k) Each of the Partnership Parties has been Entities is duly formed organized and is validly existing as a limited partnership, limited liability company or corporation, as applicable, limited partnership in good standing under the laws of its the jurisdiction of its formation or organization with full requisite limited liability company or limited partnership power and authority to enter into own, lease and perform operate its respective obligations under this Agreement properties and consummate to conduct its business as presently conducted and as described in the transactions contemplated hereby. Each Registration Statement, the Time of Sale Information and the Partnership Entities Prospectus (and any amendment or supplement thereto) and is duly registered and qualified to do conduct its business as a foreign limited partnership, limited liability company or corporation, as applicable, and is in good standing under the laws of in each jurisdiction which requires, or at the Closing Date and each Option Closing Date, if any, will require, such qualificationlisted opposite its name on Schedule V hereto, except where the failure to be so qualified would register or qualify has not had or will not have a material adverse effect on the condition (financial or otherwiseother), prospectsbusiness, earnings, business or properties, taken as a wholenet worth, whether results of operations or not arising from transactions in the ordinary course prospects of business, on the Partnership Entities, taken as a whole (a “Material Adverse Effect”).
(l) The General Partner has, or subject and at the Closing Date and any Additional Closing Date, will have, requisite limited partners liability company power and authority to serve as general partner of the Partnership in all material respects as disclosed in the Registration Statement, the Time of Sale Information and the Prospectus.
(m) The General Partner is, and at the Closing Date and any Additional Closing Date, if applicable, will be, the sole general partner of the Partnership, with a non-economic general partner interest in the Partnership (the “GP Interest”); the GP Interest has been duly authorized and validly issued in accordance with the Third Amended and Restated Agreement of Limited Partnership of the Partnership (as it may be amended from time to time, the “Partnership Agreement”); and the General Partner owns such general partner interest free and clear of all Liens, except for such Liens as permitted in the Partnership Agreement or as described in the Registration Statement, the Time of Sale Information and the Prospectus, if any.
(n) The Partnership is, and at the Closing Date, will be, the owner of approximately 47.9% of the common units of OpCo and all of the issued and outstanding Series A Cumulative Convertible Preferred Units of OpCo. The Partnership is, and at the Closing Date and any material Additional Closing Date, if applicable, will be, the managing member of OpCo. Such equity interests have been duly authorized and validly issued in accordance with the Organizational Agreement of OpCo and are fully paid (to the extent required under such Organizational Agreement) and nonassessable (except as such nonassessability may be affected by matters described in Sections 18-607 and 18-804 of the Delaware Limited Liability Company Act (the “Delaware LLC Act”)); and the Partnership owns such equity interests free and clear of all liens, encumbrances, security interests, equities, charges or claims (“Liens”), other than Liens incurred pursuant to the Partnership’s Credit Agreement dated as of January 11, 2017 (as amended, restated or otherwise modified from time to time, the “Credit Agreement”) or as set forth in the Registration Statement, the Time of Sale Information and the Prospectus. As used herein, “Organizational Agreement” means the limited liability company agreement, limited partnership agreement or disabilitypartnership agreement, as applicable, of an entity.
Appears in 1 contract
Sources: Underwriting Agreement (Kimbell Royalty Partners, LP)
Representations and Warranties of the Partnership Parties. Each of the The Partnership Parties, jointly and severally, represents represent and warrants to, warrant to and agrees with, agree with each Underwriter as set forth below in this Section 6.of the Underwriters that:
(a) The Partnership meets the requirements for use of Form S-3 under the Act and has prepared and filed with the Commission the Registration Statementa registration statement (File Number 333–217976) on Form S-1, including the Base a related Preliminary Prospectus, for registration under the Securities Act of the offering and sale of the Units. The Such Registration Statement, including all amendments thereto filed prior to the Time of Saledate and time that this Agreement is executed and delivered by the parties hereto (the “Execution Time”), has become effective. The Partnership has may have filed with the Commission, as part of an amendment to the Registration Statement or pursuant to Rule 424(b), one or more amendments thereto, including a related Preliminary Prospectuses relating to the UnitsProspectus, each of which has previously been furnished to you. The Partnership will file with the Commission a Prospectus relating to the Units final prospectus in accordance with Rule 424(b)) of the Securities Act. As filed, such final prospectus shall contain all information required by the Prospectus will comply in all material respects with the Securities Act and the rules and regulations of the Commission thereunder and, except to the extent the Underwriters Representative shall agree in writing to a modification, shall be in all substantive respects in the form furnished to you the Representative prior to the Execution Time of Sale or, to the extent not completed at the Time of SaleExecution Time, shall contain only such specific additional information and other changes (beyond that contained in the Base Prospectus and any latest Preliminary Prospectus) as the Partnership has advised youthe Representative, prior to the Time of SaleExecution Time, will be included or made therein. The Registration Statement, at the Time of Sale, meets the requirements set forth in Rule 415(a)(1)(x).
(b) No stop order suspending the effectiveness of the Registration Statement or Statement, any post-effective amendment thereto or any registration statement filed pursuant to Rule 462(b) has been issued under the Securities Act, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act has been initiated or, to the knowledge of any of the Partnership Parties, threatened by the Commission. No order preventing or suspending the use of any Preliminary Prospectus or any Issuer Free Writing Prospectus has been issued and no proceeding for that purpose has been initiated or, to the knowledge of the Partnership Parties, threatened by the Commission.
(c) Each Preliminary Prospectus, at the time of filing thereof, complied in all material respects with the requirements of the Securities Act and did not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, except with respect to any information with respect to the Units and the offering thereof permitted to be omitted from the Registration Statement when it becomes effective pursuant to Rule 430A (“Rule 430A Information”) omitted from the Preliminary Prospectus. On each the date and time that the Registration Statement, any post-effective amendment or amendments thereto and any Rule 462(b) Registration Statement became or becomes effective (the “Effective Date”), the Registration Statement did, and when the Prospectus is first filed in accordance with Rule 424(b) of the Rules and Regulations Securities Act and on the Closing Date and each on any date on which Additional Units are purchased, if such date is not the Closing Date (an “Option Closing Date”), the Prospectus (and any supplement thereto) will will, comply in all material respects with the applicable requirements of the Act Securities Act; on the Effective Date and Date, at the Execution Time of Saleand on the Closing Date, the Registration Statement did not and will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading; and on the date of any filing pursuant to Rule 424(b) of the Rules and Regulations and on the Closing Date and each any Option Closing Date, the Prospectus (together with any supplement thereto) will not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Partnership makes Oasis Parties make no representations or warranties as to the information contained in or omitted from the Registration Statement, each Preliminary Prospectus or the Prospectus (or any supplement thereto) in reliance upon and in conformity with information furnished in writing to the Partnership by or on behalf of each any Underwriter through the Representative specifically for inclusion in the Registration Statement, each Preliminary Prospectus or the Prospectus (or any supplement thereto), it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in Section 9(b10(b) hereof.
(d) As of the Time of SaleExecution Time, the Closing Date and each Option Closing Date, (i) the Disclosure PackageTime of Sale Prospectus, and (ii) each electronic road show, if any, when taken together as a whole with the Disclosure PackageTime of Sale Prospectus, did and (iii) each individual written communication with potential investors undertaken in reliance on Section 5(d) of the Securities Act (a “Written Testing-the-Waters Communication”), when taken together as a whole with the Time of Sale Prospectus, does not and will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Partnership makes Oasis Parties make no representations or warranties as to statements in or omissions from the Disclosure Package Time of Sale Prospectus based upon and in conformity with written information furnished to the Partnership by or on behalf of any Underwriter through the Representative specifically for use therein, it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in Section 9(b10(b) hereof.
(e) Each of the statements made by the Partnership in the Registration Statement and the Time of Sale Prospectus and to be made in the Prospectus (and any supplements thereto) within the coverage of Rule 175(b) of the Securities Act, including (but not limited to) any statements with respect to projected results of operations, estimated available cash and future cash distributions of the Partnership, and any statements made in support thereof or related thereto under the heading “Our Cash Distribution Policy and Restrictions on Distributions” or the anticipated ratio of taxable income to distributions, were made or will be made with a reasonable basis and in good faith.
(f) The Partnership has made available a “bona fide electronic road show” (as defined in Rule 433(h) of the Securities Act) such that no filing of any “road show” (as defined in Rule 433(h)) is required in connection with the offering of the Units.
(g) (i) At the earliest time after of filing of the Registration Statement that the Partnership or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) of the Rules and Regulations) of the Units and (ii) as of the Execution Time of Sale (with such date being used as the determination date for purposes of this clause (ii)), the Partnership was not and is not an Ineligible Issuer (as defined in Rule 405 of the Rules and Regulations405), without taking account of any determination by the Commission pursuant to Rule 405 of the Rules and Regulations that it is not necessary that the Partnership be considered an Ineligible Issuer.
(f) Each Issuer Free Writing Prospectus does not include any information that conflicts with the information contained in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus, including any document incorporated by reference therein that has not been superseded or modified; provided, however, that the Partnership makes no representations or warranties as to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with written information furnished to the Partnership by or on behalf of any Underwriter specifically for use therein, it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in Section 9(b) hereof.
(g) Each of the Partnership Parties has been duly formed and is validly existing as a limited partnership, limited liability company or corporation, as applicable, in good standing under the laws of its jurisdiction of organization with full power and authority to enter into and perform its respective obligations under this Agreement and consummate the transactions contemplated hereby. Each of the Partnership Entities is duly qualified to do business as a foreign limited partnership, limited liability company or corporation, as applicable, and is in good standing under the laws of each jurisdiction which requires, or at the Closing Date and each Option Closing Date, if any, will require, such qualification, except where the failure to be so qualified would not have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties, taken as a whole, whether or not arising from transactions in the ordinary course of business, on the Partnership Entities, taken as a whole (a “Material Adverse Effect”), or subject the limited partners of the Partnership to any material liability or disability.
Appears in 1 contract
Sources: Underwriting Agreement (Oasis Midstream Partners LP)
Representations and Warranties of the Partnership Parties. Each of the The Partnership Parties, jointly and severally, represents hereby represent and warrants towarrant to each Underwriter on the date hereof, and agrees with, shall be deemed to represent and warrant to each Underwriter on the Closing Date and any Additional Closing Date, as set forth below in this Section 6.the case may be, that:
(a) The Partnership meets the requirements for use of Form S-3 under the Act and has prepared and filed with the Commission the Registration Statement, including the Base Prospectus, for registration under the Act of the offering and sale of the Units. The Such Registration Statement, including all any amendments thereto filed prior to the Time of Sale, has become effectivebecame effective upon filing. The Partnership has filed with the Commission, as part of an amendment to the Registration Statement or pursuant to Rule 424(b), one or more Preliminary Prospectuses relating to the Units, each of which has previously been furnished to you. The Partnership will file with the Commission a Prospectus relating to the Units in accordance with Rule 424(b). As filed, the Prospectus will comply in all material respects with the Act and the rules and regulations of the Commission thereunder and, except to the extent the Underwriters shall agree in writing to a modification, shall be in all substantive respects in the form furnished to you prior to the Time of Sale or, to the extent not completed at the Time of Sale, shall contain only such specific additional information and other changes (beyond that contained in the Base Prospectus and any Preliminary Prospectus) as the Partnership has advised you, prior to the Time of Sale, will be included or made therein. The Registration Statement, at the Time of Sale, meets the requirements set forth in Rule 415(a)(1)(x).
(b) No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued and no proceeding for that purpose has been initiated or, to the knowledge of any of the Partnership Parties, threatened by the Commission. No order preventing or suspending the use of any Preliminary Prospectus or any Issuer Free Writing Prospectus has been issued and no proceeding for that purpose has been initiated or, to the knowledge of the Partnership Parties, threatened by the Commission.
(i) At the time of filing the Registration Statement, (ii) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Sections 13 or 15(d) of the Exchange Act or form of prospectus), (iii) at the time the Partnership or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c)) made any offer relating to the Units in reliance on the exemption in Rule 163, and (iv) at the Time of Sale (with such date being used as the determination date for purposes of this clause (iv)), the Partnership was or is (as the case may be) a “well-known seasoned issuer” as defined in Rule 405. The Partnership agrees to pay the fees required by the Commission relating to the Units within the time required by Rule 456(b)(1) without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r).
(c) On each Effective Date, The Partnership was not at the time of initial filing of the Registration Statement didand, at the earliest time thereafter that the Partnership or another offering participant made a “bona fide offer” (within the meaning of Rule 164(h)(2) of the Act) of the Units, is not on the date hereof and will not be on the Closing Date or any Additional Closing Date an “ineligible issuer” (as defined in Rule 405 under the Act).
(d) The Registration Statement conformed in all material respects at the time it initially became effective and the Time of Sale and will conform in all material respects on each of the Closing Date and any Additional Closing Date, if applicable, and any amendment to the Registration Statement filed after the date hereof will conform in all material respects when filed, to the applicable requirements of the Act and the Rules and Regulations. The most recent Preliminary Prospectus conformed, in all material respects, and the Prospectus is first will conform, in all material respects, to the applicable requirements of the Act and the Rules and Regulations when filed in accordance with the Commission pursuant to Rule 424(b) of under the Rules and Regulations and on the Closing Date and each Option any Additional Closing Date, the Prospectus if applicable.
(and any supplement theretoe) will comply in all material respects with the applicable requirements The Registration Statement did not, as of the Act on the Effective Date and at the Time of Sale, the Registration Statement did not contain any an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary in order to make the statements therein not misleading; provided that no representation or warranty is made as to information contained in or omitted from the Registration Statement in reliance upon and in conformity with written information furnished to the Partnership Parties through the Representatives by or on behalf of any Underwriter specifically for inclusion therein.
(f) The Prospectus will not, as of its date, the date of any filing pursuant to Rule 424(b) of it was filed with the Rules and Regulations and Commission, or on the Closing Date and each Option or any Additional Closing Date, the Prospectus (together with any supplement thereto) will not if applicable, include any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, provided that the Partnership makes no representations representation or warranties warranty is made as to the information contained included in or omitted from the Registration Statement, each Preliminary Prospectus or the Prospectus (or any supplement thereto) in reliance upon and in conformity with written information furnished in writing to the Partnership Parties through the Representatives by or on behalf of each any Underwriter specifically for inclusion in the Registration Statement, each Preliminary Prospectus or the Prospectus (or any supplement thereto), it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in Section 9(b) hereoftherein.
(dg) As The Time of Sale Information did not, as of the Time of Sale, the Closing Date and each Option Closing Date, (i) the Disclosure Package, and (ii) each electronic road show, if any, when taken together as a whole with the Disclosure Package, did not and will not contain any include an untrue statement of a material fact or omit to state any a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, provided that the Partnership makes no representations representation or warranties warranty is made as to statements information included in or omissions omitted from the Disclosure Package based Time of Sale Information in reliance upon and in conformity with written information furnished to the Partnership Parties through the Representatives by or on behalf of any Underwriter specifically for use inclusion therein, it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in Section 9(b) hereof.
(ih) At the earliest time after filing of the Registration Statement No Issuer Free Writing Prospectus (including, without limitation, any road show that the Partnership or another offering participant made is a bona fide offer (within the meaning of free writing prospectus under Rule 164(h)(2) of the Rules and Regulations) of the Units and (ii) as of the Time of Sale (with such date being used as the determination date for purposes of this clause (ii)), the Partnership was not and is not an Ineligible Issuer (as defined in Rule 405 433 of the Rules and Regulations), without taking account when considered together with the Time of any determination by Sale Information at the Commission pursuant Time of Sale, included an untrue statement of a material fact or omitted to Rule 405 state a material fact necessary in order to make the statements therein, in the light of the Rules and Regulations circumstances under which they were made, not misleading; provided that it no representation or warranty is not necessary that the Partnership be considered an Ineligible Issuer.
(f) Each Issuer Free Writing Prospectus does not include any information that conflicts with the information contained in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus, including any document incorporated by reference therein that has not been superseded or modified; provided, however, that the Partnership makes no representations or warranties made as to statements information included in or omissions omitted from any Issuer Free Writing Prospectus based the Time of Sale Information in reliance upon and in conformity with written information furnished to the Partnership Parties through the Representatives by or on behalf of any Underwriter specifically for use inclusion therein, it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in Section 9(b) hereof.
(gi) Each Issuer Free Writing Prospectus conformed or will conform in all material respects to the requirements of the Act and the Rules and Regulations on the date of first use, and the Partnership has complied with all prospectus delivery and any filing requirements applicable to such Issuer Free Writing Prospectus pursuant to the Rules and Regulations. The Partnership has not made any offer relating to the Units that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Representatives. The Partnership has retained in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses that were not required to be filed pursuant to the Rules and Regulations. The Partnership has taken all actions necessary so that any “road show” (as defined in Rule 433 of the Rules and Regulations) in connection with the offering of the Units will not be required to be filed pursuant to the Rules and Regulations.
(j) The Partnership (i) has not alone engaged in any Testing-the-Waters Communication, (ii) has not authorized anyone to engage in such communications, other than the Representatives, and (iii) has not distributed or approved for distribution any Testing-the-Waters Communication that is a “written communication” within the meaning of Rule 405 under the Act, other than those listed on Schedule VI hereto.
(k) Each of the Partnership Parties has been Entities is duly formed organized and is validly existing as a limited partnership, limited liability company or corporation, as applicable, limited partnership in good standing under the laws of its the jurisdiction of its formation or organization with full requisite limited liability company or limited partnership power and authority to enter into own, lease and perform operate its respective obligations under this Agreement properties and consummate to conduct its business as presently conducted and as described in the transactions contemplated hereby. Each Registration Statement, the Time of Sale Information and the Partnership Entities Prospectus (and any amendment or supplement thereto) and is duly registered and qualified to do conduct its business as a foreign limited partnership, limited liability company or corporation, as applicable, and is in good standing under the laws of in each jurisdiction which requires, or at the Closing Date and each Option Closing Date, if any, will require, such qualificationlisted opposite its name on Schedule V hereto, except where the failure to be so qualified would register or qualify has not had or will not have a material adverse effect on the condition (financial or otherwiseother), prospectsbusiness, earnings, business or properties, taken as a wholenet worth, whether results of operations or not arising from transactions in the ordinary course prospects of business, on the Partnership Entities, taken as a whole (a “Material Adverse Effect”).
(l) The General Partner has, or subject and at the Closing Date and any Additional Closing Date, will have, requisite limited partners liability company power and authority to serve as general partner of the Partnership in all material respects as disclosed in the Registration Statement, the Time of Sale Information and the Prospectus.
(m) The General Partner is, and at the Closing Date and any Additional Closing Date, if applicable, will be, the sole general partner of the Partnership, with a non-economic general partner interest in the Partnership (the “GP Interest”); the GP Interest has been duly authorized and validly issued in accordance with the Fifth Amended and Restated Agreement of Limited Partnership of the Partnership (as it may be amended from time to time, the “Partnership Agreement”); and the General Partner owns such general partner interest free and clear of all liens, encumbrances, security interests, equities, charges or claims (“Liens”), except for such Liens as permitted in the Partnership Agreement or as described in the Registration Statement, the Time of Sale Information and the Prospectus, if any.
(n) The Partnership is, and at the Closing Date, will be, the owner of approximately 86.2% of the common units of OpCo. The Partnership is, and at the Closing Date and any material Additional Closing Date, if applicable, will be, the managing member of OpCo. Such equity interests have been duly authorized and validly issued in accordance with the Organizational Agreement of OpCo and are fully paid (to the extent required under such Organizational Agreement) and nonassessable (except as such nonassessability may be affected by matters described in Sections 18-607 and 18-804 of the Delaware Limited Liability Company Act (the “Delaware LLC Act”)); and the Partnership owns such equity interests free and clear of all Liens, other than Liens incurred pursuant to the Partnership’s Amended and Restated Credit Agreement dated as of June 13, 2023 (as amended, restated or otherwise modified from time to time, the “Credit Agreement”) or as set forth in the Registration Statement, the Time of Sale Information and the Prospectus. As used herein, “Organizational Agreement” means the limited liability company agreement, limited partnership agreement or disabilitypartnership agreement, as applicable, of an entity.
Appears in 1 contract
Sources: Underwriting Agreement (Kimbell Royalty Partners, LP)
Representations and Warranties of the Partnership Parties. Each of the The Partnership Parties, jointly and severally, represents hereby represent and warrants towarrant to each Underwriter on the date hereof, and agrees with, shall be deemed to represent and warrant to each Underwriter on the Closing Date and any Additional Closing Date, as set forth below in this Section 6.the case may be, that:
(a) The Partnership meets the requirements for use of Form S-3 under the Act and has prepared and filed with the Commission the Registration Statement, including the Base Prospectus, for registration under the Act of the offering and sale of the Units. The Such Registration Statement, including all any amendments thereto filed prior to the Time of Sale, has become effectivebecame effective upon filing. The Partnership has filed with the Commission, as part of an amendment to the Registration Statement or pursuant to Rule 424(b), one or more Preliminary Prospectuses relating to the Units, each of which has previously been furnished to you. The Partnership will file with the Commission a Prospectus relating to the Units in accordance with Rule 424(b). As filed, the Prospectus will comply in all material respects with the Act and the rules and regulations of the Commission thereunder and, except to the extent the Underwriters shall agree in writing to a modification, shall be in all substantive respects in the form furnished to you prior to the Time of Sale or, to the extent not completed at the Time of Sale, shall contain only such specific additional information and other changes (beyond that contained in the Base Prospectus and any Preliminary Prospectus) as the Partnership has advised you, prior to the Time of Sale, will be included or made therein. The Registration Statement, at the Time of Sale, meets the requirements set forth in Rule 415(a)(1)(x).
(b) No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued and no proceeding for that purpose has been initiated or, to the knowledge of any of the Partnership Parties, threatened by the Commission. No order preventing or suspending the use of any Preliminary Prospectus or any Issuer Free Writing Prospectus has been issued and no proceeding for that purpose has been initiated or, to the knowledge of the Partnership Parties, threatened by the Commission.
(i) At the time of filing the Registration Statement, (ii) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Sections 13 or 15(d) of the Exchange Act or form of prospectus), (iii) at the time the Partnership or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c)) made any offer relating to the Units in reliance on the exemption in Rule 163, and (iv) at the Time of Sale (with such date being used as the determination date for purposes of this clause (iv)), the Partnership was or is (as the case may be) a “well-known seasoned issuer” as defined in Rule 405. The Partnership agrees to pay the fees required by the Commission relating to the Units within the time required by Rule 456(b)(1) without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r).
(c) On each Effective Date, The Partnership was not at the time of initial filing of the Registration Statement didand, at the earliest time thereafter that the Partnership or another offering participant made a “bona fide offer” (within the meaning of Rule 164(h)(2) of the Act) of the Units, is not on the date hereof and will not be on the Closing Date or any Additional Closing Date an “ineligible issuer” (as defined in Rule 405 under the Act).
(d) The Registration Statement conformed in all material respects at the time it initially became effective and the Time of Sale and will conform in all material respects on each of the Closing Date and any Additional Closing Date, if applicable, and any amendment to the Registration Statement filed after the date hereof will conform in all material respects when filed, to the applicable requirements of the Act and the Rules and Regulations. The most recent Preliminary Prospectus conformed, in all material respects, and the Prospectus is first will conform, in all material respects, to the applicable requirements of the Act and the Rules and Regulations when filed in accordance with the Commission pursuant to Rule 424(b) of under the Rules and Regulations and on the Closing Date and each Option any Additional Closing Date, the Prospectus if applicable.
(and any supplement theretoe) will comply in all material respects with the applicable requirements The Registration Statement did not, as of the Act on the Effective Date and at the Time of Sale, the Registration Statement did not contain any an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary in order to make the statements therein not misleading; provided that no representation or warranty is made as to information contained in or omitted from the Registration Statement in reliance upon and in conformity with written information furnished to the Partnership Parties through the Representative by or on behalf of any Underwriter specifically for inclusion therein.
(f) The Prospectus will not, as of its date, the date of any filing pursuant to Rule 424(b) of it was filed with the Rules and Regulations and Commission, or on the Closing Date and each Option or any Additional Closing Date, the Prospectus (together with any supplement thereto) will not if applicable, include any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, provided that the Partnership makes no representations representation or warranties warranty is made as to the information contained included in or omitted from the Registration Statement, each Preliminary Prospectus or the Prospectus (or any supplement thereto) in reliance upon and in conformity with written information furnished in writing to the Partnership Parties through the Representative by or on behalf of each any Underwriter specifically for inclusion in the Registration Statement, each Preliminary Prospectus or the Prospectus (or any supplement thereto), it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in Section 9(b) hereoftherein.
(dg) As The Time of Sale Information did not, as of the Time of Sale, the Closing Date and each Option Closing Date, (i) the Disclosure Package, and (ii) each electronic road show, if any, when taken together as a whole with the Disclosure Package, did not and will not contain any include an untrue statement of a material fact or omit to state any a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, provided that the Partnership makes no representations representation or warranties warranty is made as to statements information included in or omissions omitted from the Disclosure Package based Time of Sale Information in reliance upon and in conformity with written information furnished to the Partnership Parties through the Representative by or on behalf of any Underwriter specifically for use inclusion therein, it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in Section 9(b) hereof.
(ih) At the earliest time after filing of the Registration Statement No Issuer Free Writing Prospectus (including, without limitation, any road show that the Partnership or another offering participant made is a bona fide offer (within the meaning of free writing prospectus under Rule 164(h)(2) of the Rules and Regulations) of the Units and (ii) as of the Time of Sale (with such date being used as the determination date for purposes of this clause (ii)), the Partnership was not and is not an Ineligible Issuer (as defined in Rule 405 433 of the Rules and Regulations), without taking account when considered together with the Time of any determination by Sale Information at the Commission pursuant Time of Sale, included an untrue statement of a material fact or omitted to Rule 405 state a material fact necessary in order to make the statements therein, in the light of the Rules and Regulations circumstances under which they were made, not misleading; provided that it no representation or warranty is not necessary that the Partnership be considered an Ineligible Issuer.
(f) Each Issuer Free Writing Prospectus does not include any information that conflicts with the information contained in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus, including any document incorporated by reference therein that has not been superseded or modified; provided, however, that the Partnership makes no representations or warranties made as to statements information included in or omissions omitted from any Issuer Free Writing Prospectus based the Time of Sale Information in reliance upon and in conformity with written information furnished to the Partnership Parties through the Representative by or on behalf of any Underwriter specifically for use inclusion therein, it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in Section 9(b) hereof.
(gi) Each Issuer Free Writing Prospectus conformed or will conform in all material respects to the requirements of the Act and the Rules and Regulations on the date of first use, and the Partnership has complied with all prospectus delivery and any filing requirements applicable to such Issuer Free Writing Prospectus pursuant to the Rules and Regulations. The Partnership has not made any offer relating to the Units that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Representative. The Partnership has retained in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses that were not required to be filed pursuant to the Rules and Regulations. The Partnership has taken all actions necessary so that any “road show” (as defined in Rule 433 of the Rules and Regulations) in connection with the offering of the Units will not be required to be filed pursuant to the Rules and Regulations.
(j) The Partnership (i) has not alone engaged in any Testing-the-Waters Communication, (ii) has not authorized anyone to engage in such communications, other than the Representative, and (iii) has not distributed or approved for distribution any Testing-the-Waters Communication that is a “written communication” within the meaning of Rule 405 under the Act, other than those listed on Schedule VI hereto.
(k) Each of the Partnership Parties has been Entities is duly formed organized and is validly existing as a limited partnership, limited liability company or corporation, as applicable, limited partnership in good standing under the laws of its the jurisdiction of its formation or organization with full requisite limited liability company or limited partnership power and authority to enter into own, lease and perform operate its respective obligations under this Agreement properties and consummate to conduct its business as presently conducted and as described in the transactions contemplated hereby. Each Registration Statement, the Time of Sale Information and the Partnership Entities Prospectus (and any amendment or supplement thereto) and is duly registered and qualified to do conduct its business as a foreign limited partnership, limited liability company or corporation, as applicable, and is in good standing under the laws of in each jurisdiction which requires, or at the Closing Date and each Option Closing Date, if any, will require, such qualificationlisted opposite its name on Schedule V hereto, except where the failure to be so qualified would register or qualify has not had or will not have a material adverse effect on the condition (financial or otherwiseother), prospectsbusiness, earnings, business or properties, taken as a wholenet worth, whether results of operations or not arising from transactions in the ordinary course prospects of business, on the Partnership Entities, taken as a whole (a “Material Adverse Effect”).
(l) The General Partner has, or subject and at the Closing Date and any Additional Closing Date, will have, requisite limited partners liability company power and authority to serve as general partner of the Partnership in all material respects as disclosed in the Registration Statement, the Time of Sale Information and the Prospectus.
(m) The General Partner is, and at the Closing Date and any Additional Closing Date, if applicable, will be, the sole general partner of the Partnership, with a non-economic general partner interest in the Partnership (the “GP Interest”); the GP Interest has been duly authorized and validly issued in accordance with the Fourth Amended and Restated Agreement of Limited Partnership of the Partnership (as it may be amended from time to time, the “Partnership Agreement”); and the General Partner owns such general partner interest free and clear of all liens, encumbrances, security interests, equities, charges or claims (“Liens”), except for such Liens as permitted in the Partnership Agreement or as described in the Registration Statement, the Time of Sale Information and the Prospectus, if any.
(n) The Partnership is, and at the Closing Date, will be, the owner of approximately 75.9% of the common units of OpCo. The Partnership is, and at the Closing Date and any material Additional Closing Date, if applicable, will be, the managing member of OpCo. Such equity interests have been duly authorized and validly issued in accordance with the Organizational Agreement of OpCo and are fully paid (to the extent required under such Organizational Agreement) and nonassessable (except as such nonassessability may be affected by matters described in Sections 18-607 and 18-804 of the Delaware Limited Liability Company Act (the “Delaware LLC Act”)); and the Partnership owns such equity interests free and clear of all Liens, other than Liens incurred pursuant to the Partnership’s Amended and Restated Credit Agreement dated as of June 13, 2023 (as amended, restated or otherwise modified from time to time, the “Credit Agreement”) or as set forth in the Registration Statement, the Time of Sale Information and the Prospectus. As used herein, “Organizational Agreement” means the limited liability company agreement, limited partnership agreement or disabilitypartnership agreement, as applicable, of an entity.
Appears in 1 contract
Sources: Underwriting Agreement (Kimbell Royalty Partners, LP)
Representations and Warranties of the Partnership Parties. Each of the The Partnership Parties, jointly and severally, represents hereby represent and warrants towarrant to each Underwriter on the date hereof, and agrees with, shall be deemed to represent and warrant to each Underwriter on the Closing Date and any Additional Closing Date, as set forth below in this Section 6.the case may be, that:
(a) The Partnership meets the requirements for use of Form S-3 under the Act Registration Statement has been filed with, and has prepared and filed with the Commission the Registration Statementbeen declared effective by, including the Base Prospectus, for registration under the Act of the offering and sale of the Units. The Registration Statement, including all amendments thereto filed prior to the Time of Sale, has become effective. The Partnership has filed with the Commission, as part of an amendment to the Registration Statement or pursuant to Rule 424(b), one or more Preliminary Prospectuses relating to the Units, each of which has previously been furnished to you. The Partnership will file with the Commission a Prospectus relating to the Units in accordance with Rule 424(b). As filed, the Prospectus will comply in all material respects with the Act and the rules and regulations of the Commission thereunder and, except to the extent the Underwriters shall agree in writing to a modification, shall be in all substantive respects in the form furnished to you prior to the Time of Sale or, to the extent not completed at the Time of Sale, shall contain only such specific additional information and other changes (beyond that contained in the Base Prospectus and any Preliminary Prospectus) as the Partnership has advised you, prior to the Time of Sale, will be included or made therein. The Registration Statement, at the Time of Sale, meets the requirements set forth in Rule 415(a)(1)(x).
(b) No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued and no proceeding for that purpose has been initiated or, to the knowledge of any of the Partnership Parties, threatened by the Commission. No order preventing or suspending the use of any Preliminary Prospectus or any Issuer Free Writing Prospectus has been issued and no proceeding for that purpose has been initiated or, to the knowledge of the Partnership Parties, threatened by the Commission.
(cb) On each Effective Date, The Partnership was not at the time of initial filing of the Registration Statement didand, at the earliest time thereafter that the Partnership or another offering participant made a “bona fide offer” (within the meaning of Rule 164(h)(2) of the Act) of the Units, is not on the date hereof and will not be on the Closing Date or any Additional Closing Date an “ineligible issuer” (as defined in Rule 405 under the Act).
(c) The Registration Statement conformed in all material respects at the time it initially became effective and the Time of Sale and will conform in all material respects on each of the Closing Date and any Additional Closing Date, if applicable, and any amendment to the Registration Statement filed after the date hereof will conform in all material respects when filed, to the applicable requirements of the Act and the Rules and Regulations. The most recent Preliminary Prospectus conformed, in all material respects, and the Prospectus is first will conform, in all material respects, to the applicable requirements of the Act and the Rules and Regulations when filed in accordance with the Commission pursuant to Rule 424(b) of under the Rules and Regulations and on the Closing Date and each Option any Additional Closing Date, the Prospectus if applicable.
(and any supplement theretod) will comply in all material respects with the applicable requirements The Registration Statement did not, as of the Act on the Effective Date and at the Time of Sale, the Registration Statement did not contain any an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary in order to make the statements therein not misleading; provided that no representation or warranty is made as to information contained in or omitted from the Registration Statement in reliance upon and in conformity with written information furnished to the Partnership Parties through the Representative by or on behalf of any Underwriter specifically for inclusion therein.
(e) The Prospectus will not, as of its date, the date of any filing pursuant to Rule 424(b) of it was filed with the Rules and Regulations and Commission, or on the Closing Date and each Option or any Additional Closing Date, the Prospectus (together with any supplement thereto) will not if applicable, include any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, provided that the Partnership makes no representations representation or warranties warranty is made as to the information contained included in or omitted from the Registration Statement, each Preliminary Prospectus or the Prospectus (or any supplement thereto) in reliance upon and in conformity with written information furnished in writing to the Partnership Parties through the Representative by or on behalf of each any Underwriter specifically for inclusion in the Registration Statement, each Preliminary Prospectus or the Prospectus (or any supplement thereto), it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in Section 9(b) hereoftherein.
(df) As The Time of Sale Information did not, as of the Time of Sale, the Closing Date and each Option Closing Date, (i) the Disclosure Package, and (ii) each electronic road show, if any, when taken together as a whole with the Disclosure Package, did not and will not contain any include an untrue statement of a material fact or omit to state any a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, provided that the Partnership makes no representations representation or warranties warranty is made as to statements information included in or omissions omitted from the Disclosure Package based Time of Sale Information in reliance upon and in conformity with written information furnished to the Partnership Parties through the Representative by or on behalf of any Underwriter specifically for use inclusion therein, it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in Section 9(b) hereof.
(ig) At the earliest time after filing of the Registration Statement No Issuer Free Writing Prospectus (including, without limitation, any road show that the Partnership or another offering participant made is a bona fide offer (within the meaning of free writing prospectus under Rule 164(h)(2) of the Rules and Regulations) of the Units and (ii) as of the Time of Sale (with such date being used as the determination date for purposes of this clause (ii)), the Partnership was not and is not an Ineligible Issuer (as defined in Rule 405 433 of the Rules and Regulations), without taking account when considered together with the Time of any determination by Sale Information at the Commission pursuant Time of Sale, included an untrue statement of a material fact or omitted to Rule 405 state a material fact necessary in order to make the statements therein, in the light of the Rules and Regulations circumstances under which they were made, not misleading; provided that it no representation or warranty is not necessary that the Partnership be considered an Ineligible Issuer.
(f) Each Issuer Free Writing Prospectus does not include any information that conflicts with the information contained in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus, including any document incorporated by reference therein that has not been superseded or modified; provided, however, that the Partnership makes no representations or warranties made as to statements information included in or omissions omitted from any Issuer Free Writing Prospectus based the Time of Sale Information in reliance upon and in conformity with written information furnished to the Partnership Parties through the Representative by or on behalf of any Underwriter specifically for use inclusion therein, it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in Section 9(b) hereof.
(gh) Each Issuer Free Writing Prospectus conformed or will conform in all material respects to the requirements of the Act and the Rules and Regulations on the date of first use, and the Partnership has complied with all prospectus delivery and any filing requirements applicable to such Issuer Free Writing Prospectus pursuant to the Rules and Regulations. The Partnership has not made any offer relating to the Units that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Representative. The Partnership has retained in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses that were not required to be filed pursuant to the Rules and Regulations. The Partnership has taken all actions necessary so that any “road show” (as defined in Rule 433 of the Rules and Regulations) in connection with the offering of the Units will not be required to be filed pursuant to the Rules and Regulations.
(i) From the time of filing of the Registration Statement through the date hereof, the Partnership has been and is an Emerging Growth Company.
(j) The Partnership (i) has not alone engaged in any Testing-the-Waters Communication, (ii) has not authorized anyone to engage in such communications, other than the Representative, and (iii) has not distributed or approved for distribution any Testing-the-Waters Communication that is a “written communication” within the meaning of Rule 405 under the Act, other than those listed on Schedule VI hereto.
(k) Each of the Partnership Parties has been Entities is duly formed organized and is validly existing as a limited partnership, limited liability company or corporation, as applicable, limited partnership in good standing under the laws of its the jurisdiction of its formation or organization with full requisite limited liability company or limited partnership power and authority to enter into own, lease and perform operate its respective obligations under this Agreement properties and consummate to conduct its business as presently conducted and as described in the transactions contemplated hereby. Each Registration Statement, the Time of Sale Information and the Partnership Entities Prospectus (and any amendment or supplement thereto) and is duly registered and qualified to do conduct its business as a foreign limited partnership, limited liability company or corporation, as applicable, and is in good standing under the laws of in each jurisdiction which requires, or at the Closing Date and each Option Closing Date, if any, will require, such qualificationlisted opposite its name on Schedule V hereto, except where the failure to be so qualified would register or qualify has not had or will not have a material adverse effect on the condition (financial or otherwiseother), prospectsbusiness, earnings, business or properties, taken as a wholenet worth, whether results of operations or not arising from transactions in the ordinary course prospects of business, on the Partnership Entities, taken as a whole (a “Material Adverse Effect”).
(l) The General Partner has, or subject and at the Closing Date and any Additional Closing Date, will have, requisite limited partners liability company power and authority to serve as general partner of the Partnership in all material respects as disclosed in the Registration Statement, the Time of Sale Information and the Prospectus.
(m) The General Partner is, and at the Closing Date and any Additional Closing Date, if applicable, will be, the sole general partner of the Partnership, with a non-economic general partner interest in the Partnership (the “GP Interest”); the GP Interest has been duly authorized and validly issued in accordance with the Fourth Amended and Restated Agreement of Limited Partnership of the Partnership (as it may be amended from time to time, the “Partnership Agreement”); and the General Partner owns such general partner interest free and clear of all Liens, except for such Liens as permitted in the Partnership Agreement or as described in the Registration Statement, the Time of Sale Information and the Prospectus, if any.
(n) The Partnership is, and at the Closing Date, will be, the owner of approximately 88.36% of the common units of OpCo. The Partnership is, and at the Closing Date and any material Additional Closing Date, if applicable, will be, the managing member of OpCo. Such equity interests have been duly authorized and validly issued in accordance with the Organizational Agreement of OpCo and are fully paid (to the extent required under such Organizational Agreement) and nonassessable (except as such nonassessability may be affected by matters described in Sections 18-607 and 18-804 of the Delaware Limited Liability Company Act (the “Delaware LLC Act”)); and the Partnership owns such equity interests free and clear of all liens, encumbrances, security interests, equities, charges or claims (“Liens”), other than Liens incurred pursuant to the Partnership’s Credit Agreement dated as of January 11, 2017 (as amended, restated or otherwise modified from time to time, the “Credit Agreement”) or as set forth in the Registration Statement, the Time of Sale Information and the Prospectus. As used herein, “Organizational Agreement” means the limited liability company agreement, limited partnership agreement or disabilitypartnership agreement, as applicable, of an entity.
Appears in 1 contract
Sources: Underwriting Agreement (Kimbell Royalty Partners, LP)
Representations and Warranties of the Partnership Parties. Each of the The Partnership PartiesParties represent, jointly warrant to and severally, represents and warrants to, and agrees with, agree with each Underwriter as set forth below in this Section 6.Manager that:
(a) The Partnership meets the requirements for use of Form S-3 under the Securities Act and has prepared and filed with the Securities and Exchange Commission (the Registration Statement“Commission”) a registration statement on Form S-3 (File No. 333-199312), including a form of prospectus, in conformity with the Base Prospectusrequirements of the Securities Act of 1933, as amended (the “Act”), and the rules and regulations thereunder (the “Rules and Regulations”) of the Commission for registration under the Act of the offering and sale of the Units. The Registration Statement, including all amendments thereto filed prior to the Time of Sale, and such registration statement has become effective. The Partnership has filed with the Commission, as part of an amendment to the Registration Statement or pursuant to Rule 424(b)(as defined below) contains certain information concerning the offering and sale of the Common Units, one or more Preliminary Prospectuses relating to including the Units, each of which has previously been furnished to you. The and contains additional information concerning the Partnership will file with and its business; the Commission a Prospectus relating to the Units in accordance with Rule 424(b). As filed, the Prospectus will comply in all material respects with the Act and the rules and regulations of the Commission thereunder and, except to the extent the Underwriters shall agree in writing to a modification, shall be in all substantive respects in the form furnished to you prior to the Time of Sale or, to the extent has not completed at the Time of Sale, shall contain only such specific additional information and other changes (beyond that contained in the Base Prospectus and any Preliminary Prospectus) as the Partnership has advised you, prior to the Time of Sale, will be included or made therein. The Registration Statement, at the Time of Sale, meets the requirements set forth in Rule 415(a)(1)(x).
(b) No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued and no proceeding for that purpose has been initiated or, to the knowledge of any of the Partnership Parties, threatened by the Commission. No an order preventing or suspending the use of any Preliminary the Basic Prospectus (as defined below), the Prospectus Supplement (as defined below) or any Issuer Free Writing the Prospectus has been issued (as defined below), or the effectiveness of the Registration Statement, and no proceeding for that purpose or pursuant to Section 8A of the Act has been initiated instituted or, to the knowledge of the Partnership PartiesPartnership’s knowledge, threatened by the Commission.
. Except where the context otherwise requires, “Registration Statement,” as used herein, means the registration statement, as amended at the time of such registration statement’s effectiveness for purposes of Section 11 of the Act, as such section applies to the Managers, as well as any new registration statement or post-effective amendment as may have been filed pursuant to Sections 4(g) of this Agreement, including (c1) On each Effective Dateall financial statements and documents filed as a part thereof or incorporated or deemed to be incorporated by reference therein, (2) any information contained or incorporated by reference in a prospectus filed with the Commission pursuant to Rule 424(b) under the Act, to the extent such information is deemed, pursuant to Rule 430B or Rule 430C under the Act, to be part of the registration statement at the time of such registration statement’s effectiveness for purposes of Section 11 of the Act, as such section applies to the Managers, and (3) any registration statement filed to register the offer and sale of Units pursuant to Rule 462(b) under the Act. Except where the context otherwise requires, “Basic Prospectus,” as used herein, means the prospectus filed as part of the Registration Statement didStatement, and when together with any amendments or supplements thereto as of the date of this Agreement. Except where the context otherwise requires, “Prospectus Supplement,” as used herein, means the final prospectus supplement, relating to the Units, filed by the Partnership with the Commission pursuant to Rule 424(b) under the Act on or before the second business day after the date of this Agreement (or such earlier time as may be required under the Act), in the form furnished by the Partnership to the Managers in connection with the offering of the Units. Except where the context otherwise requires, “Prospectus,” as used herein, means the Prospectus Supplement together with the Basic Prospectus attached to or used with the Prospectus Supplement. Notwithstanding the foregoing, if any revised basic prospectus, prospectus supplement or prospectus shall be provided to the Managers by the Partnership for use in connection with the offering and sale of the Units which differs from the Basic Prospectus, Prospectus Supplement or Prospectus, as the case may be (whether or not such revised basic prospectus, prospectus supplement or prospectus is first required to be filed in accordance with by the Partnership pursuant to Rule 424(b) of the Rules Act), the terms “Basic Prospectus,” “Prospectus Supplement” and Regulations “Prospectus” shall refer to such revised basic prospectus, prospectus supplement or prospectus, as the case may be, from and on after the Closing Date and each Option Closing Datetime it is first provided to the Managers for such use. Any reference herein to the registration statement, the Registration Statement, the Basic Prospectus, the Prospectus Supplement or the Prospectus shall be deemed to refer to and include the documents, if any, incorporated by reference, or deemed to be incorporated by reference, therein (the “Incorporated Documents”), including, unless the context otherwise requires, the documents, if any, filed as exhibits to such Incorporated Documents. Any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, the Basic Prospectus, the Prospectus Supplement or the Prospectus shall be deemed to refer to and include the filing of any supplement theretodocument under the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (collectively, the “Exchange Act”) on or after the initial effective date of the Registration Statement, or the date of the Basic Prospectus, the Prospectus Supplement or the Prospectus, as the case may be, and deemed to be incorporated therein by reference.
(b) The Registration Statement complied when it became effective, complies as of the date hereof and, as amended or supplemented, at each deemed effective date with respect to any Manager pursuant to Rule 430(B)(f)(2) of the Act, as of the time of each sale of Units pursuant to this Agreement (each, a “Time of Sale”), at each Settlement Date (as defined in Section 3(a)(vi) hereof), and at all times during which a prospectus is required by the Act to be delivered (whether physically, deemed to be delivered pursuant to Rule 153 under the Act or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Units, will comply comply, in all material respects respects, with the applicable requirements of the Act on the Effective Date Act, and at the Time of Sale, the Registration Statement did not and will not, at or during such times, contain any an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary in order to make the statements therein not misleading; the conditions to the use of Form S-3 in connection with the offering and sale of the Units as contemplated hereby have been satisfied; the Registration Statement meets, and the offering and sale of the Units as contemplated hereby comply with, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5)); the Basic Prospectus complied or will comply, at the time it was or will be filed with the Commission, complies as of the date hereof (if filed with the Commission on or prior to the date hereof) and, as of each Time of Sale, at each Settlement Date and at all times during which a prospectus is required by the Act to be delivered (whether physically, deemed to be delivered pursuant to Rule 153 under the Act or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Units, will comply, in all material respects, with the requirements of the Act; at no time during the period that begins on the earlier of the date of the Basic Prospectus and the date the Basic Prospectus was filed with the Commission and ends at the later of each Settlement Date and the end of the period during which a prospectus is required by the Act to be delivered (whether physically, deemed to be delivered pursuant to Rule 153 under the Act or through compliance with Rule 172 under the Act or any similar rule) did or will the Basic Prospectus, as then amended or supplemented, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; the Prospectus will comply, as of the date that it is filed with the Commission, the date of the Prospectus Supplement, each Time of Sale, each Settlement Date, and at all times during which a prospectus is required by the Act to be delivered (whether physically, deemed to be delivered pursuant to Rule 153 under the Act or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Units, in all material respects, with the requirements of the Act (including, without limitation, Section 10(a) of the Act); at no time during the period that begins on the date of any filing the Prospectus Supplement and ends at the later of each Settlement Date and the end of the period during which a prospectus is required by the Act to be delivered (whether physically, deemed to be delivered pursuant to Rule 424(b153 under the Act or through compliance with Rule 172 under the Act or any similar rule) of the Rules and Regulations and on the Closing Date and each Option Closing Date, the Prospectus (together in connection with any supplement thereto) sale of Units did or will not the Prospectus, as then amended or supplemented, include any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Partnership makes no representations representation or warranties as warranty with respect to the information any statement contained in or omitted from the Registration Statement, each Preliminary the Basic Prospectus or the Prospectus (or any supplement thereto) in reliance upon and in conformity with information concerning the Managers and furnished in writing to the Partnership by or on behalf of each Underwriter specifically the Managers expressly for inclusion use in the Registration Statement, each Preliminary the Basic Prospectus or the Prospectus (Prospectus, as the case may be; each Incorporated Document, at the time such document was filed with the Commission or any supplement thereto)at the time such document became effective, it being understood and agreed that as applicable, complied, in all material respects, with the only such information furnished by any Underwriter consists requirements of the information described as such in Section 9(b) hereof.
(d) As of the Time of Sale, the Closing Date Exchange Act and each Option Closing Date, (i) the Disclosure Package, and (ii) each electronic road show, if any, when taken together as a whole with the Disclosure Package, did not and will not contain any include an untrue statement of a material fact or omit to state any a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided. For all purposes of this Agreement (including, howeverwithout limitation, that the provisions of this paragraph and of Section 7 of this Agreement), the Partnership makes no representations or warranties as to statements in or omissions from the Disclosure Package based upon and in conformity with written information furnished to the Partnership by or on behalf of any Underwriter specifically for use thereineach Manager, it being understood severally and agreed not jointly, agree that the only such information furnished or to be furnished by or on behalf of such Manager expressly for use in the Registration Statement, the Basic Prospectus, the Prospectus Supplement or the Prospectus or any Underwriter consists amendment or supplement to any of the information described as foregoing is the statement that such Manager will not engage in Section 9(b) hereofany transactions that stabilize the Common Units appearing in the last sentence of the first paragraph under the caption “Plan of Distribution” in the Prospectus Supplement dated May 25, 2016.
(ic) At the earliest time after filing For purposes of the Registration Statement that the Partnership or another each offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) of the Rules and Regulations) of the Units and (ii) as of the Time of Sale (with such date being used as the determination date for purposes of pursuant to transactions under this clause (ii))Agreement that are not firm commitment underwritings, the Partnership was not and is not will be an Ineligible Issuer “ineligible issuer” (as defined in Rule 405 of the Securities Act) as of each relevant eligibility determination date for purposes of Rules 164 and Regulations), without taking account of any determination by 433 under the Commission pursuant to Rule 405 of the Rules and Regulations that it is not necessary that the Partnership be considered an Ineligible IssuerSecurities Act.
(fd) Each Issuer Free Writing Prospectus does not include Prior to the execution of this Agreement, the Partnership has not, directly or indirectly, offered or sold any information that conflicts Units by means of any “prospectus” (within the meaning of the Act) or used any “prospectus” (within the meaning of the Act) in connection with the information contained in offer or sale of the Registration StatementUnits, and from and after the execution of this Agreement, the most recent Preliminary Prospectus Partnership will not, directly or indirectly, offer or sell any Units by means of any “prospectus” (within the meaning of the Act) or use any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Units, other than the Prospectus, including any document incorporated by reference therein that has not been superseded as amended or modifiedsupplemented from time to time in accordance with the provisions of this Agreement; provided, however, that the Partnership makes no representations has not, directly or warranties as indirectly, prepared, used or referred to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity connection with written information furnished to the Partnership by or on behalf sale of any Underwriter specifically for use thereinUnits pursuant to this Agreement, it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists as defined in Rule 433 of the information described as such in Section 9(b) hereofRules and Regulations.
(ge) Each of the Partnership Parties has been duly formed and is validly existing as a limited partnership, limited liability company or corporation, as applicable, in good standing under the laws of its jurisdiction of organization with full power and authority to enter into and perform its respective obligations under this Agreement and consummate the transactions contemplated hereby. Each of the Partnership Entities is duly qualified to do business as a foreign limited partnership, limited liability company or corporation, as applicable, and is in good standing under the laws of each jurisdiction which requires, or at the Closing Date and each Option Closing Date, if any, will require, requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties, taken as a whole, whether or not arising from transactions in the ordinary course of business, on of the Partnership Entities, taken as a whole (a “Material Adverse Effect”), or subject the limited partners of the Partnership to any material liability or disability.
(f) Memorial Resource Development Corp., a Delaware corporation (“MRD”), owns all of the issued and outstanding membership interests of the General Partner; such membership interests are duly authorized and validly issued in accordance with the Third Amended and Restated Limited Liability Company Agreement of the General Partner (the “GP LLC Agreement”), and are fully paid (to the extent required by the GP LLC Agreement) and nonassessable (except as such nonassessability may be affected by Sections 18-607 and 18-804 of the Delaware Limited Liability Company Act (the “Delaware LLC Act”)); and MRD owns such membership interests free and clear of all liens, encumbrances, security interests, charges or other claims (collectively, “Liens”), except for restrictions on transferability contained in the GP LLC Agreement or in that certain Credit Agreement dated as of June 18, 2014, by and among MRD, as borrower, the lenders party thereto, Bank of America, N.A., as administrative agent and collateral agent, and the other parties party thereto (as amended, modified and supplemented from time to time, the “MRD Credit Agreement”), or that certain Indenture, dated July 10, 2014, by and among MRD, the subsidiary guarantors named therein and U.S. Bank National Association, as trustee (the “MRD Indenture”) or as described in the Registration Statement and the Prospectus.
(g) The General Partner is the sole general partner of the Partnership with a 0.1% general partner interest in the Partnership; such general partner interest has been duly authorized and validly issued in accordance with the First Amended and Restated Agreement of Limited Partnership of the Partnership, as in effect on the date hereof (the “Partnership Agreement”); and the General Partner owns such general partner interest free and clear of all Liens, except for restrictions on transferability contained in the Partnership Agreement or in the MRD Indenture, the MRD Credit Agreement, that certain Indenture, dated April 17, 2013, by and among the Partnership, Memorial Production Finance Corporation, the subsidiary guarantors named therein and U.S. Bank National Association, as trustee (as amended or supplemented, the “2021 Indenture”), that certain Indenture, dated July 17, 2014, by and among the Partnership, Memorial Production Finance Corporation, the subsidiary guarantors named therein and U.S. Bank National Association, as trustee (as amended or supplemented, the “2022 Indenture” and, together with the 2021 Indenture, the “Partnership Indentures”), or that certain Credit Agreement dated December 14, 2011, among the Operating Company, as borrower, the guarantors party thereto, ▇▇▇▇▇ Fargo Bank, National Association, as administrative agent for the lenders party thereto, and the other agents and lenders party thereto (as amended, modified and supplemented from time to time, the “Credit Agreement”) or as described in the Registration Statement and the Prospectus.
(h) The General Partner and Natural Gas Partners VIII, L.P., a Delaware limited partnership (“NGP VIII”), Natural Gas Partners IX, L.P., a Delaware limited partnership (“NGP IX”) and NGP IX Offshore Holdings, L.P., a Delaware limited partnership (“NGP Holdings” and together with NGP VIII and NGP IX, the “Funds”) collectively own 100% of the Incentive Distribution Rights (as such term is defined in the Partnership Agreement, the “IDRs”) in the Partnership, in each case free and clear of all Liens, except for restrictions on transferability contained in the Partnership Agreement or
Appears in 1 contract
Sources: Equity Distribution Agreement (Memorial Production Partners LP)
Representations and Warranties of the Partnership Parties. Each of the Partnership Parties, jointly and severally, represents and warrants to, and agrees with, each Underwriter as set forth below in this Section 6.
(a) The Partnership meets the requirements for use of Form S-3 under the Act and has prepared and filed with the Commission the Registration Statement, including the Base Prospectus, for registration under the Act of the offering and sale of the Units. The Registration Statement, including all amendments thereto filed prior to the Time of Sale, has become effective. The Partnership has filed with the Commission, as part of an amendment to the Registration Statement or pursuant to Rule 424(b), one or more Preliminary Prospectuses relating to the Units, each of which has previously been furnished to you. The Partnership will file with the Commission a Prospectus relating to the Units in accordance with Rule 424(b). As filed, the Prospectus will comply in all material respects with the Act and the rules and regulations of the Commission thereunder and, except to the extent the Underwriters Underwriter shall agree in writing to a modification, shall be in all substantive respects in the form furnished to you prior to the Time of Sale or, to the extent not completed at the Time of Sale, shall contain only such specific additional information and other changes (beyond that contained in the Base Prospectus and any Preliminary Prospectus) as the Partnership has advised you, prior to the Time of Sale, will be included or made therein. The Registration Statement, at the Time of Sale, meets the requirements set forth in Rule 415(a)(1)(x).
(b) No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued and no proceeding for that purpose has been initiated or, to the knowledge of any of the Partnership Parties, threatened by the Commission. No order preventing or suspending the use of any Preliminary Prospectus or any Issuer Free Writing Prospectus has been issued and no proceeding for that purpose has been initiated or, to the knowledge of the Partnership Parties, threatened by the Commission.
(c) On each Effective Date, the Registration Statement did, and when the Prospectus is first filed in accordance with Rule 424(b) of the Rules and Regulations and on the Closing Date and each Option Closing Date, the Prospectus (and any supplement thereto) will comply in all material respects with the applicable requirements of the Act on the Effective Date and at the Time of Sale, the Registration Statement did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading; and on the date of any filing pursuant to Rule 424(b) of the Rules and Regulations and on the Closing Date and each Option Closing Date, the Prospectus (together with any supplement thereto) will not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Partnership makes no representations or warranties as to the information contained in or omitted from the Registration Statement, each Preliminary Prospectus or the Prospectus (or any supplement thereto) in reliance upon and in conformity with information furnished in writing to the Partnership by or on behalf of each the Underwriter specifically for inclusion in the Registration Statement, each Preliminary Prospectus or the Prospectus (or any supplement thereto), it being understood and agreed that the only such information furnished by any the Underwriter consists of the information described as such in Section 9(b) hereof.
(d) As of the Time of Sale, Sale and the Closing Date and each Option Closing Date, (i) the Disclosure Package, and (ii) each electronic road show, if any, when taken together as a whole with the Disclosure Package, did not and will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Partnership makes no representations or warranties as to statements in or omissions from the Disclosure Package based upon and in conformity with written information furnished to the Partnership by or on behalf of any the Underwriter specifically for use therein, it being understood and agreed that the only such information furnished by or on behalf of any the Underwriter consists of the information described as such in Section 9(b) hereof.
(i) At the earliest time after filing of the Registration Statement that the Partnership or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) of the Rules and Regulations) of the Units and (ii) as of the Time of Sale (with such date being used as the determination date for purposes of this clause (ii)), the Partnership was not and is not an Ineligible Issuer (as defined in Rule 405 of the Rules and Regulations), without taking account of any determination by the Commission pursuant to Rule 405 of the Rules and Regulations that it is not necessary that the Partnership be considered an Ineligible Issuer.
(f) Each Issuer Free Writing Prospectus does not include any information that conflicts with the information contained in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus, including any document incorporated by reference therein that has not been superseded or modified; provided, however, that the Partnership makes no representations or warranties as to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with written information furnished to the Partnership by or on behalf of any the Underwriter specifically for use therein, it being understood and agreed that the only such information furnished by or on behalf of any the Underwriter consists of the information described as such in Section 9(b) hereof.
(g) Each of the Partnership Parties has been duly formed and is validly existing as a limited partnership, limited liability company or corporation, as applicable, in good standing under the laws of its jurisdiction of organization with full power and authority to enter into and perform its respective obligations under this Agreement and consummate the transactions contemplated hereby. Each of the Partnership Entities is duly qualified to do business as a foreign limited partnership, limited liability company or corporation, as applicable, and is in good standing under the laws of each jurisdiction which requires, or at the Closing Date and each Option Closing Date, if any, will require, such qualification, except where the failure to be so qualified would not have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties, taken as a whole, whether or not arising from transactions in the ordinary course of business, on the Partnership Entities, taken as a whole (a “Material Adverse Effect”), or subject the limited partners of the Partnership to any material liability or disability.
(h) The Selling Unitholder owns, and on the Closing Date will own, all of the issued and outstanding Class A Membership Interests (as defined in the GP LLC Agreement (as defined below)) of the General Partner, and Natural Gas Partners VIII, L.P., a Delaware limited partnership (“NGP VIII”), Natural Gas Partners IX, L.P., a Delaware limited partnership (“NGP IX”) and NGP IX Offshore Holdings, L.P., a Delaware limited partnership (“NGP Holdings” and together with NGP VIII and NGP IX, the “Funds”), own, and on the Closing Date will own, in the aggregate all of the issued and outstanding non-voting Class IDR Membership Interests (as defined in the GP LLC Agreement) of the General Partner; the Class A Membership Interests and Class IDR Membership Interests are duly authorized and validly issued in accordance with the limited liability company agreement of the General Partner (the “GP LLC Agreement”), and are fully paid (to the extent required by the GP LLC Agreement) and nonassessable (except as such nonassessability may be affected by Sections 18-607 and 18-804 of the Delaware Limited Liability Company Act (the “Delaware LLC Act”)); and the Selling Unitholder and the Funds own such membership interests free and clear of all liens, encumbrances, security interests, charges or other claims (collectively, “Liens”), except for restrictions on transferability contained in the GP LLC Agreement or as described in the Disclosure Package and the Prospectus; and on the Closing Date, no other interest in the General Partner will be outstanding.
(i) The General Partner is, and on the Closing Date will be, the sole general partner of the Partnership with a 0.1% general partner interest in the Partnership; such general partner interest has been, and on the Closing Date will be, duly authorized and validly issued in accordance with the First Amended and Restated Agreement of Limited Partnership of the Partnership, as in effect on the date hereof (the “Partnership Agreement”); and the General Partner owns, and will own on the Closing Date, such general partner interest free and clear of all Liens, except for restrictions on transferability contained in the Partnership Agreement or as described in the Disclosure Package and the Prospectus.
(j) After giving effect to this Agreement and the transactions contemplated hereby, the Selling Unitholder owns, and on the Closing Date will own, 5,360,912 Subordinated Units (the “Sponsor Units”), and the General Partner owns, and on the Closing Date will own, 100% of the Incentive Distribution Rights (as such term is defined in the Partnership Agreement, the “IDRs”) in the Partnership, in each case free and clear of all Liens, except for restrictions on transferability contained in the Partnership Agreement or as described in the Disclosure Package and the Prospectus; all of such Sponsor Units and IDRs and the limited partner interests represented thereby have been duly authorized and validly issued in accordance with the Partnership Agreement, and are fully paid (to the extent required under the Partnership Agreement) and nonassessable (except as such nonassessability may be affected by Sections 17-607 and 17-804 of the Delaware Limited Partnership Act (the “Delaware LP Act”)).
(k) The Partnership owns, and on the Closing Date will own, all of the issued and outstanding membership interests of the Operating Company free and clear of all Liens, except for restrictions on transferability contained in the limited liability company agreement of the Operating Company (as in effect on the date hereof, the “Operating Company LLC Agreement”) or in that certain Credit Agreement dated December 14, 2011, among the Operating Company, as borrower, the guarantors party thereto, ▇▇▇▇▇ Fargo Bank, National Association, as administrative agent for the lenders party thereto, and the other agents and lenders party thereto (as amended, the “Credit Agreement”); such membership interests have been duly authorized and validly issued in accordance with the Operating Company LLC Agreement and are fully paid (to the extent required by the Operating Company LLC Agreement) and nonassessable (except as such nonassessability may be affected by Sections 18-607 and 18-804 of the Delaware LLC Act).
(l) The Operating Company owns, and on the Closing Date will own, all of the issued and outstanding membership interests of each of the Subsidiaries (other than with respect to San ▇▇▇▇▇ Bay Pipeline Company, of which the Operating Company indirectly owns 51.75% of the issued and outstanding common stock) free and clear of all Liens, except for restrictions on transferability contained in the limited liability company agreements or other similar governing documents of each of the Subsidiaries and the Credit Agreement; such membership interests of Columbus Energy, LLC and to the knowledge of the Partnership Parties, such membership interests and common stock, as applicable, of Rise Energy Operating, LLC, Rise Energy Minerals, LLC, Rise Energy Beta, LLC, San ▇▇▇▇▇ Bay Pipeline Company, WHT Energy Partners LLC, WHT Carthage LLC, Memorial Midstream LLC, Memorial Energy Services LLC and Prospect Energy, LLC have been duly authorized and validly issued in accordance with the limited liability company agreements or other similar governing documents of the Subsidiaries, and are fully paid (to the extent required by each such limited liability company agreement) and nonassessable (except as such nonassessability may be affected by Sections 18-607 and 18-804 of the Delaware LLC Act).
(m) [Reserved].
(n) As of the date hereof, after giving effect to this Agreement and the transactions contemplated hereby, the Partnership has no limited partner interests issued and outstanding other than the following: 55,877,831 Common Units owned by the public unitholders and 5,360,912 Subordinated Units. Other than the Sponsor Units and the IDRs, the 55,877,831 Common Units will be the only limited partner interests of the Partnership issued and outstanding on the Closing Date.
(o) Other than its ownership of its 0.1% general partner interest in the Partnership and the IDRs, the General Partner will not, on the Closing Date own, directly or indirectly, any equity or long-term debt securities of any corporation, partnership, limited liability company, joint venture, association or other entity. As of the date hereof, other than (i) the Partnership’s ownership of a 100% membership interest in the Operating Company and 100% of the common stock of Memorial Production Finance Corporation, (ii) the Operating Company’s direct or indirect ownership of a 100% membership interest in each of the Subsidiaries (other than with respect to San ▇▇▇▇▇ Bay Pipeline Company, of which the Operating Company indirectly owns 51.75% of the issued and outstanding common stock), neither the Partnership nor the Operating Company owns, directly or indirectly, any equity or long-term debt securities of any corporation, partnership, limited liability company, joint venture, association or other entity. As of the Closing Date, other than (i) the Partnership’s ownership of a 100% membership interest in the Operating Company and 100% of the common stock of Memorial Production Finance Corporation, (ii) the Operating Company’s direct or indirect ownership of a 100% membership interest in each of the Subsidiaries (other than with respect to San ▇▇▇▇▇ Bay Pipeline Company, of which the Operating Company indirectly owns 51.75% of the issued and outstanding common stock), neither the Partnership nor the Operating Company will own, directly or indirectly, any equity or long-term debt securities of any corporation, partnership, limited liability company, joint venture, association or other entity.
(p) Except as described in or incorporated by reference into the Disclosure Package and the Prospectus, there are no (i) preemptive rights or other rights to subscribe for or to purchase, nor any restriction upon the voting or transfer of, any equity securities of the Partnership Entities or (ii) outstanding options or warrants to purchase any securities of the Partnership Entities. Neither the filing of the Registration Statement nor the offering or sale of the Units as contemplated by this Agreement gives rise to any rights for or relating to the registration of any Common Units or other securities of the Partnership.
(q) Each of the Partnership Parties has all requisite power and authority to execute and deliver this Agreement and perform its respective obligations hereunder.
(r) This Agreement has been duly authorized, executed and delivered by each of the Partnership Parties.
(s) Neither of (i) the execution, delivery and performance of this Agreement by the Partnership Entities party hereto or (ii) any other transactions contemplated by this Agreement, (A) conflicts or will conflict with, or constitutes or will constitute a violation of the partnership agreement, limited liability company agreement, certificate of limited partnership, certificate of formation, conversion or other constituent document (collectively, the “Organizational Documents”) of any of the Partnership Entities, (B) conflicts or will conflict with, or constitut
Appears in 1 contract
Sources: Underwriting Agreement (Memorial Production Partners LP)