CHI. 2851193.2
CHI. Samstock and ZFT jointly and severally represent and warrant to the Company as follows:
(a) Each of CHI, Samstock and ZFT is a limited liability company duly organized, validly existing and in good standing under the laws of Delaware. Alpha is a validly existing partnership under the laws of Illinois. Each of CHI, Samstock, ZFT and Alpha has the power and authority to enter into this Agreement and perform its respective obligations hereunder.
(b) This Agreement has been duly authorized, executed and delivered by CHI, Samstock, ZFT and Alpha and constitutes the legal, valid and binding agreement of CHI, Samstock, ZFT and Alpha, enforceable against them in accordance with the terms hereof.
(c) Neither the execution and delivery of this Agreement nor the performance of its obligations hereunder will conflict with, or result in a breach of, or constitute a default under, any law, rule, regulation, judgment, order or decree of any court, arbitrator or governmental agency or instrumentality, or of any agreement or instrument to which CHI, Samstock, ZFT or Alpha is bound or by which it is affected or of any charter documents of CHI, Samstock, ZFT or Alpha.
(d) As of the date hereof, no shares of Common Stock are currently beneficially owned by any member of the Xxxx Group (other than Handy, FPH Trustee and MelChart and their respective affiliates), except for those shares of Common Stock originally acquired by CHI pursuant to the Stock Purchase and Sale Agreement and set forth on EXHIBIT A hereto (exclusive of any options granted by the Company).
CHI. CEPH, CEPM, the Company and CEP Equity will enter into various bills of sale, assignments, conveyances and related documents (collectively, the “Contribution Documents”) pursuant to which the following transactions will occur immediately prior to or on the Closing Date:
(1) Upon such conversion as described in clause (a) above, CEPH will contribute the Class A Units and the Management Incentive Interests to CEPM.
(2) CHI will contribute to the Company $8.0 million (“Class D Contribution”) in exchange for all of the Class D interests (“Class D Interests”) of the Company.
(3) The Company will sell to CEP Equity an undivided mineral interest in certain properties of the Company described in the Prospectus as the “Xxxxx Shale Rights.”
CHI. 2949588.3 ANNEX C PLAN OF DISTRIBUTION Each broker-dealer that receives Exchange Securities for its own account pursuant to the Exchange Offer must acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. This Prospectus, as it may be amended or supplemented from time to time, may be used by a broker-dealer in connection with resales of Exchange Securities received in exchange for Securities where such Securities were acquired as a result of market-making activities or other trading activities. The Company has agreed that, for a period of 180 days after the expiration of the Exchange Offer, it will make this Prospectus, as amended or supplemented, available to any broker- dealer for use in connection with any such resale. The Company will not receive any proceeds from any sale of Exchange Securities by broker-dealers. Exchange Securities received by broker-dealers for their own account pursuant to the Exchange Offer may be sold from time to time in one or more transactions in the over-the-counter market, in negotiated transactions, through the writing of options on the Exchange Securities or a combination of such methods of resale, at market prices prevailing at the time of resale, at prices related to such prevailing market prices or negotiated prices. Any such resale may be made directly to purchasers or to or through brokers or dealers who may receive compensation in the form of commissions or concessions from any such broker-dealer or the purchasers of any such Exchange Securities. Any broker-dealer that resells Exchange Securities that were received by it for its own account pursuant to the Exchange Offer and any broker or dealer that participates in a distribution of such Exchange Securities may be deemed to be an “underwriter” within the meaning of the 1933 Act and any profit on any such resale of Exchange Securities and any commission or concessions received by any such persons may be deemed to be underwriting compensation under the 1933 Act. The Letter of Transmittal states that, by acknowledging that it will deliver and by delivering a prospectus, a broker-dealer will not be deemed to admit that it is an “underwriter” within the meaning of the 1933 Act. For a period of 180 days after the expiration of the Exchange Offer the Company will promptly send additional copies of this Prospectus and any amendment or supplement to this Prospectus to any broker-dealer that requests such documents in the Letter...
CHI. 64213081v14 “Report” means reports prepared by the Administrative Agent or another Person showing the results of examinations, inspections or audits pertaining to a Borrower’s and/or any of its Subsidiary’s assets from information furnished by or on behalf of such Borrower or any such Subsidiary, which Reports may be distributed to the Lenders by the Administrative Agent. “Required Lenders” means, at any time, Lenders having Revolving Credit Exposures and unused Commitments representing at least 51% of the sum of the total Revolving Credit Exposures and unused Commitments at such time. “Requirement of Law” means, as to any Person, the certificate of incorporation and by- laws or other organizational or governing documents of such Person, and any law, treaty, rule or regulation or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject. “Restricted Payment” means (a) any dividend or other distribution (whether in cash, securities or other property) with respect to any Equity Interests in the Borrowers or any Subsidiary or (b) any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such Equity Interests in the Borrowers or any Subsidiary or any option, warrant or other right to acquire any such Equity Interests in the Borrowers or any Subsidiary. “Revolving Borrowing” means a Borrowing that is comprised of (a) a Revolving Loan or (b) a Swingline Loan. “Revolving Credit Exposure” means, with respect to any Lender at any time, the sum of the Equivalent Amount in U.S. Dollars of outstanding principal amount of such Lender’s Revolving Loans, its LC Exposure and its Swingline Exposure at such time. “Revolving Loan” means a Loan made pursuant to Section 2.01. “Sanctions” has the meaning assigned to such term in Section 3.07. “S&P” means Standard & Poor’s. “Sale and Leaseback Transaction” means any sale or other transfer of property by any Person with the intent to lease such property as lessee. “Significant Subsidiary” means (a) each Material Subsidiary and (b) such other Subsidiaries, as determined from time to time by Parent, that, when taken together with the Loan Parties and the Material Subsidiaries, hold 85% or more of the consolidated assets or generate 85...
CHI. 64213081v14 (v) in the case of a Eurodollar Borrowing, the initial Interest Period to be applicable thereto, which shall be a period contemplated by the definition of the term “Interest Period”; and (vi) the location and number of such Borrower’s account to which funds are to be disbursed, which shall comply with the requirements of Section 2.07. If no election as to the Type of U.S. Revolving Loan by the applicable Borrower is specified, then the requested U.S. Revolving Loan shall be an ABR Borrowing. If no Interest Period is specified with respect to any requested Borrowing for EUR Revolving Loans, then the Borrowers shall be deemed to have selected an Interest Period of one (1) month’s duration. Promptly following receipt of a Borrowing Request in accordance with this Section, the Administrative Agent shall advise each Lender of the details thereof and of the amount of such Lender’s Loan to be made as part of the requested Borrowing.
CHI. (e) If the Borrowers fail to deliver a timely Interest Election Request with respect to a Eurodollar Revolving Borrowing prior to the end of the Interest Period applicable thereto, then, unless such Borrowing is repaid as provided herein, at the end of such Interest Period such Borrowing shall be converted to an ABR Borrowing; provided, however, if such Borrowing is denominated in an Offshore Currency, such Borrowing shall instead be continued as a Eurodollar Borrowing of the same Class with an Interest Period of one (1) month. Notwithstanding any contrary provision hereof, if an Event of Default has occurred and is continuing and the Administrative Agent, at the request of the Required Lenders, so notifies the Borrowers, then, so long as an Event of Default is continuing (i) no outstanding Borrowing may be converted to or continued as a Eurodollar Borrowing and (ii) unless repaid, each Eurodollar Borrowing shall be converted to an ABR Borrowing at the end of the Interest Period applicable thereto; provided, however, if such Borrowing is denominated in an Offshore Currency, such Borrowing shall instead be continued as a Eurodollar Borrowing with an Interest Period of one (1) month.
CHI. (b) The Borrowers shall notify the Administrative Agent (and, in the case of prepayment of a Swingline Loan, the Swingline Lender) by telephone (confirmed by telecopy) of any prepayment hereunder (i) in the case of prepayment of a Eurodollar Revolving Borrowing in U.S. Dollars, not later than 11:00 a.m., New York City time, three (3) Business Days before the date of prepayment, (ii) in the case of prepayment of a Eurodollar Revolving Borrowing in Euros, not later than 11:00 a.m., London time, three (3) Business Days before the date of prepayment, (iii) in the case of prepayment of an ABR Revolving Borrowing, not later than 11:00 a.m., New York City time, one (1) Business Day before the date of prepayment, or (iv) in the case of prepayment of a Swingline Loan, not later than 12:00 noon, New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid; provided that, if a notice of prepayment is given in connection with a conditional notice of termination of the Commitments as contemplated by Section 2.09, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.09. Promptly following receipt of any such notice relating to a Revolving Borrowing, the Administrative Agent shall advise the applicable Lenders of the contents thereof. Each partial prepayment of any Revolving Borrowing shall be in an amount that would be permitted in the case of an advance of a Revolving Borrowing of the same Type as provided in Section 2.02. Each prepayment of a Revolving Borrowing of any Class shall be applied ratably to the Revolving Loans of such Class included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.13. SECTION
CHI. 64213081v14 Each Borrowing and each issuance, amendment, renewal or extension of a Letter of Credit shall be deemed to constitute a representation and warranty by the Borrowers on the date thereof as to the matters specified in clauses (a), (b) and (c) of this Section.
