Representations and Warranties of the Company and the Parent. Each of the Parent and the Company jointly and severally represents and warrants to and agrees with each of the Underwriters that: (a) The Registration Statement has become effective; no stop order suspending the effectiveness of the Registration Statement is in effect, and no proceedings for such purpose are pending before or threatened by the Commission. (i) The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Registration Statement and the Prospectus comply and, as amended or supplemented, if applicable, will comply in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder and (iii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any 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 that the representations and warranties set forth in this paragraph do not apply to statements or omissions in the Registration Statement or the Prospectus, as amended or supplemented (if applicable) based upon information relating to any Underwriter furnished to the Company in writing by any such Underwriter through you expressly for use therein. (c) The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has the corporate power and authority to own its property and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company and its subsidiaries, taken as a whole (a “Material Adverse Effect”). (d) Each subsidiary of the Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has the corporate power and authority to own its property and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effect; all of the issued shares of capital stock of each subsidiary of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and are owned directly by the Company or a wholly owned subsidiary of the Company, free and clear of all liens, encumbrances, equities or claims, except (i) for those liens, encumbrances, equities or claims disclosed in the Prospectus and (ii) for transfer restrictions under applicable federal and state securities laws. (e) This Agreement has been duly authorized, executed and delivered by the Company. (f) The authorized capital stock of the Company conforms as to legal matters to the description thereof contained in the Prospectus. (g) The shares of common stock of the Company outstanding prior to the filing of the Amended and Restated Certificate of Incorporation of the Company, as described in the Prospectus, were duly authorized and validly issued, fully paid and non-assessable and the outstanding 48,100,000 shares of Class B Common Stock have been duly authorized and are validly issued, fully paid and non-assessable. (h) The Shares have been duly authorized and, when issued and delivered in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Shares will not be subject to any preemptive or similar rights. (i) The execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement will not contravene: (A) the certificate of incorporation or by-laws of the Company,
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Representations and Warranties of the Company and the Parent. Each of Section 2.1. To induce the Parent Approving Holders and the Other Holders to execute and deliver this First Amendment (which representations shall survive the execution and delivery of this First Amendment), the Company jointly and severally represents and warrants to and agrees each holder of a Note with each respect to itself that as of the Underwriters thatdate hereof:
(a) The Registration Statement has become effective; no stop order suspending the effectiveness of the Registration Statement is in effect, and no proceedings for such purpose are pending before or threatened by the Commission.
(i) The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Registration Statement and the Prospectus comply and, as amended or supplemented, if applicable, will comply in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder and (iii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any 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 that the representations and warranties set forth in this paragraph do not apply to statements or omissions in the Registration Statement or the Prospectus, as amended or supplemented (if applicable) based upon information relating to any Underwriter furnished to the Company in writing by any such Underwriter through you expressly for use therein.
(c) The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has the corporate power and authority to own its property and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company and its subsidiaries, taken as a whole (a “Material Adverse Effect”).
(d) Each subsidiary of the Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has the corporate power and authority to own its property and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effect; all of the issued shares of capital stock of each subsidiary of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and are owned directly by the Company or a wholly owned subsidiary of the Company, free and clear of all liens, encumbrances, equities or claims, except (i) for those liens, encumbrances, equities or claims disclosed in the Prospectus and (ii) for transfer restrictions under applicable federal and state securities laws.
(e) This Agreement First Amendment has been duly authorized, executed and delivered by the Company.
(f) The authorized capital stock of the Company conforms as to legal matters to the description thereof contained in the Prospectus.
(g) The shares of common stock of the Company outstanding prior to the filing of the Amended and Restated Certificate of Incorporation all necessary limited partnership action of the Company, as described in and this First Amendment constitutes the Prospectuslegal, were duly authorized valid and validly issued, fully paid and non-assessable and binding obligation of the outstanding 48,100,000 shares of Class B Common Stock have been duly authorized and are validly issued, fully paid and non-assessable.
(h) The Shares have been duly authorized and, when issued and delivered Company enforceable against it in accordance with the terms of this Agreementits terms, will except as such enforceability may be validly issued, fully paid and non-assessable, and the issuance of such Shares will not be subject to any preemptive or similar rights.
limited by (i) The execution applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally and delivery (ii) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) (the “Enforceability Exceptions”);
(b) the Note Purchase Agreement, as amended by this First Amendment, constitutes the legal, valid and binding obligation of the Company enforceable against it in accordance with its terms, except as such enforceability may be limited by the Company ofEnforceability Exceptions;
(c) the execution, delivery and the performance by the Company of its obligations this First Amendment will not (i) contravene, result in any breach of, or constitute a default under, this Agreement will not contravene: or result in the creation of any Lien in respect of any property of the Company or any Subsidiary under, (Ax) the certificate any indenture, mortgage, deed of incorporation trust, loan, purchase or credit agreement or lease in any material respect, (y) corporate charter, regulations or by-laws or shareholders agreement or (z) any other agreement or instrument to which the Company or any Subsidiary is bound or by which the Company or any Subsidiary or any of their respective properties may be bound or affected in any material respect, (ii) conflict with or result in a breach of any of the terms, conditions or provisions of any order, judgment, decree or ruling of any court, arbitrator or Governmental Authority applicable to the Company or any Subsidiary in any material respect or (iii) violate any provision of any statute or other rule or regulation of any Governmental Authority applicable to the Company or any Subsidiary in any material respect;
(d) as of the date hereof and after giving effect to this First Amendment, no Default or Event of Default has occurred which is continuing; and
(e) no consideration or remuneration has been paid, whether by way of supplemental or additional interest, fee or otherwise, to any creditor of the Company as consideration for or as an inducement to the entering into of any analogous amendment under the Primary Credit Facility. Xxxxxx Realty, L.P. First Amendment SECTION 3. CONDITIONS TO EFFECTIVENESS OF THIS FIRST AMENDMENT.
Section 3.1. This First Amendment shall not become effective until, and shall become effective when, each of the following conditions shall have been satisfied:
(a) executed counterparts of this First Amendment, duly executed by the Company,, the Parent and the holders of 100% of the outstanding principal amount of the Notes, shall have been delivered to the holders of the Notes; and
(b) the representations and warranties of the Company set forth in Section 2 hereof are true and correct on and with respect to the date hereof. Upon receipt of all of the foregoing (the “Effective Date”), this First Amendment shall become effective.
Appears in 1 contract
Representations and Warranties of the Company and the Parent. Each of the Parent and the I. The Company jointly and severally hereby represents and warrants to and agrees with each FBR that, as of the Underwriters thatdate of this Agreement or as of such other date set forth in the specific representation or warranty, whichever is applicable:
(a) The Registration Statement has become effective; no stop order suspending the effectiveness of the Registration Statement is in effect, and no proceedings for such purpose are pending before or threatened by the Commission.
(i) The Registration Statement, when it became effective, Preliminary Memorandum did not contain andnot, as amended or supplementedof its date, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Registration Statement and the Prospectus comply and, as amended or supplemented, if applicable, will comply in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder and (iii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; and the Final Memorandum will not, as of its date, at Closing Time and each Secondary Closing Time (if any), contain 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, except however, that the representations this representation and warranties set forth in this paragraph do warranty shall not apply to statements any statement in or omissions omission from the Preliminary Memorandum or Final Memorandum made in the Registration Statement or the Prospectus, as amended or supplemented (if applicable) based reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by any such Underwriter through you FBR expressly for use therein.therein (that information being limited to that described in the last sentence of Section 8(b) hereof);
(cb) The the Company has been is a corporation duly incorporated, is organized and validly existing as a corporation and in good standing under the laws of the jurisdiction State of its incorporationDelaware, has the with requisite corporate power and authority to own own, lease or operate its property properties and to conduct its business as described in the Prospectus Final Memorandum and to execute and deliver this Agreement and the Registration Rights Agreement, and to consummate the transactions contemplated hereby (including the issuance, sale and delivery of the Shares) and thereby;
(c) each of CNX Gas Company LLC and Cardinal States Gathering Company (each, a “Subsidiary” and, collectively, the “Subsidiaries”) is a corporation, limited liability company or partnership duly organized or formed, as applicable, and validly existing and in good standing (with respect to CNX Gas Company LLC only) under the laws of its jurisdiction of incorporation or formation, with requisite corporate, limited liability company or partnership power and authority, as applicable, to own, lease or operate its properties and to conduct its business as described in the Final Memorandum and to consummate the transactions contemplated hereby, as applicable;
(d) all membership interests and partnership interests, as applicable, of each Subsidiary have been duly authorized and validly issued, and have not been issued in violation of or subject to any preemptive right, co-sale right, registration right, right of first refusal or other similar right of shareholders arising by operation of law, under the certificate of incorporation, certificate of formation, by-laws, limited liability company agreement, limited partnership agreement or other organizational documents (collectively, the “Charter Documents”), as applicable, of such Subsidiary under any agreement to which such Subsidiary is a party or otherwise, and such shares or membership interests of the Subsidiaries and of Xxxxxxxx Generation LLC, Coalfield Pipeline Company Inc., and Xxxx Energy LLC (each, a “Joint Venture” and, collectively, the “Joint Ventures”) will, as of the Closing Time, be owned by the Company or a Subsidiary free and clear of any pledge, security interests, liens, encumbrances, claims or equitable interests, except as set forth in the Final Memorandum. Except as set forth in the Final Memorandum, the Company does not, and as of the Closing Time will not, own or control, directly or indirectly, any corporation, association or other entity other than the Subsidiaries;
(e) the Company had, at the date indicated and at the Closing Time, the duly authorized capitalization set forth in the Final Memorandum under the caption “Capitalization” after giving effect to the adjustments set forth thereunder; all of the issued and outstanding shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable, and have not been issued in violation of or subject to any preemptive right or other similar right of stockholders arising by operation of law, under the certificate of incorporation or by-laws of the Company, under any agreement to which the Company is a party or otherwise; except as disclosed in or contemplated by the Final Memorandum, there are no outstanding (i) securities or obligations of the Company or any Subsidiary convertible into or exchangeable for any capital stock of the Company, (ii) warrants, rights or options to subscribe for or purchase from the Company any such capital stock or any such convertible or exchangeable securities or obligations or (iii) obligations of the Company or any Subsidiary to issue or sell any shares of capital stock, any such convertible or exchangeable securities or obligation, or any such warrants, rights or options;
(f) the Shares have been duly authorized for issuance, sale and delivery pursuant to this Agreement and, when issued and delivered by the Company against payment therefor in accordance with the terms of this Agreement, will be duly and validly issued and fully paid and nonassessable, free and clear of any pledge, lien, encumbrance, security interest or other claim, and the issuance, sale and delivery of the Shares by the Company are not subject to preemptive right, co-sale right, registration right, right of first refusal or other similar right of stockholders arising by operation of law, under the articles of incorporation or by-laws of the Company, under any agreement to which the Company is a party or otherwise, other than as provided for in the Registration Rights Agreement; the Shares satisfy the requirements set forth in Rule 144A under the Securities Act;
(g) each of the Company and each Subsidiary is duly qualified to transact business or licensed by, and is in good standing in standing, if applicable, in, each jurisdiction in which the conduct of it conducts its business or its ownership in which it owns or leasing of leases property requires or maintains an office and in which such qualificationqualification or licensing is necessary and in which the failure, except to individually or in the extent that the failure aggregate, to be so qualified or licensed could reasonably be in good standing would not expected to have a material adverse effect on the business, condition (financial or otherwise), results of operations or prospects of the Company and its subsidiaries, the Subsidiaries taken as a whole (a “Material Adverse Effect”).;
(dh) Each subsidiary as of the Closing Time, each of the Company and the Subsidiaries has been duly incorporated, is validly existing Title (as a corporation in good standing under the laws defined below) to all of the jurisdiction of its incorporation, has the corporate power producing oil and authority to own its property gas interests and to conduct its business rights reflected as described owned by them in the Prospectus and is duly qualified to transact business and is Final Memorandum (whether through fee ownership, mineral estates or similar rights of ownership), with title investigations having been carried out, except as set forth in good standing the Final Memorandum, by or on behalf of such person in each jurisdiction accordance with reasonable practice in the gas industry in the areas in which the conduct of its business or its ownership or leasing of Company and the Subsidiaries operate, and good and marketable title to substantially all personal property requires such qualificationreflected as assets owned by them in the Final Memorandum, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effect; all of the issued shares of capital stock of each subsidiary of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and are owned directly by the Company or a wholly owned subsidiary of the Company, case free and clear of all liens, encumbrancessecurity interests, equities or claimspledges, except (i) for those lienscharges, encumbrances, equities or claims mortgages and defects, except such as are disclosed in the Prospectus and (ii) for transfer restrictions under applicable federal and state securities laws.
(e) This Agreement has been duly authorizedFinal Memorandum or as could not reasonably be expected to have a Material Adverse Effect; as of the Closing Time, executed and delivered by the Company.
(f) The authorized capital stock each of the Company conforms and the Subsidiaries has those ownership rights to all undeveloped oil and gas interests and rights reflected as to legal matters owned by them in the Final Memorandum, subject to the description thereof contained matters set forth in the Prospectus.
(g) The shares Final Memorandum under “Risk Factors — We may incur additional costs to produce gas because our chain of common stock title work for gas rights in some of our properties may be inadequate or incomplete” and “Ownership of Mineral Rights”, and have conducted limited title investigations with respect to such undeveloped properties; as of the Closing Time, any real property or personal property held under lease by the Company or any of the Subsidiaries is held under a lease that is valid, existing and enforceable by the Company or such Subsidiary, with such exceptions as are disclosed in the Final Memorandum or as could not reasonably be expected to have a Material Adverse Effect, and neither the Company or any Subsidiary has any notice of any material claim of any sort that has been asserted by anyone adverse to the rights of the Company outstanding prior or any Subsidiary under any such lease or affecting or questioning the rights of the Company or such Subsidiary to the filing continued possession of the Amended and Restated Certificate of Incorporation leased premises under such lease; as of the CompanyClosing Time, as the gas and mineral leases, options to lease, drilling rights and concessions or other property interests held or leased by the Company or its Subsidiaries reflect in all material respects the right of the Company and its Subsidiaries to explore, develop or receive production from the undeveloped properties described in the Prospectus, were duly authorized and validly issued, fully paid and non-assessable and the outstanding 48,100,000 shares of Class B Common Stock have been duly authorized and are validly issued, fully paid and non-assessable.
(h) The Shares have been duly authorized and, when issued and delivered in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessableFinal Memorandum, and the issuance of such Shares will not be subject to any preemptive or similar rights.
(i) The execution and delivery care taken by the Company ofand its Subsidiaries with respect to acquiring or otherwise procuring such leases, options to lease, drilling rights and concessions or other property interests was generally consistent with standard industry practices in the areas in which the Company operates for acquiring or procuring leases and interests therein to explore, develop or produce coalbed methane; “Title” as used in this Section 4(h), shall mean title that is free from reasonable doubt to the end that a prudent operator engaged in the business of the ownership, development and operation of producing coalbed methane gas properties or producing conventional oil and gas properties, as applicable, with knowledge of all of the facts and their legal bearing would be willing to accept and bear the risk of additional investment in such coalbed methane gas property or conventional oil and gas property, respectively, in the areas in which the Company and the performance by the Company of its obligations under, this Agreement will not contravene: (A) the certificate of incorporation or by-laws of the Company,Subsidiaries operate;
Appears in 1 contract
