REPRESENTATIONS AND WARRANTIES OF THE PARTNERSHIP. The Partnership represents and warrants to the Dealer Manager and each dealer with whom the Dealer Manager has entered into or will enter into a Selected Dealer Agreement in the form attached to this Agreement as Exhibit A (said dealers being hereinafter called the "Dealers") that: 1.1 A registration statement with respect to the Partnership has been prepared by the Partnership in accordance with applicable requirements of the Securities Act of 1933, as amended (the "Securities Act"), and the applicable rules and regulations (the "Rules and Regulations") of the Securities and Exchange Commission (the "SEC") promulgated thereunder, covering the Units. Such registration statement, which includes a preliminary prospectus, was initially filed with the SEC on or about September 27, 2002. Copies of such registration statement and each amendment thereto have been or will be delivered to the Dealer Manager. (The registration statement and prospectus contained therein, as finally amended and revised at the effective date of the registration statement, are respectively hereinafter referred to as the "Registration Statement" and the "Prospectus," except that if the Prospectus first filed by the Partnership pursuant to Rule 424(b) under the Securities Act shall differ from the Prospectus, the term "Prospectus" shall also include the Prospectus filed pursuant to Rule 424(b).) 1.2 The Partnership has been duly and validly organized and formed as a limited partnership under the laws of the state of Texas, with the power and authority to conduct its business as described in the Prospectus. 1.3 The Registration Statement and Prospectus comply with the Securities Act and the Rules and Regulations and do not contain any untrue statements of material facts or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading; provided, however, that the foregoing provisions of this Section 1.3 will not extend to such statements contained in or omitted from the Registration Statement or Prospectus as are primarily within the knowledge of the Dealer Manager or any of the Dealers and are based upon information furnished by the Dealer Manager in writing to the Partnership specifically for inclusion therein. 1.4 The Partnership intends to use the funds received from the sale of the Units as set forth in the Prospectus. 1.5 No consent, approval, authorization or other order of any governmental authority is required in connection with the execution or delivery by the Partnership of this Agreement or the issuance and sale by the Partnership of the Units, except such as may be required under the Securities Act or applicable state securities laws. 1.6 There are no actions, suits or proceedings pending or to the knowledge of the Partnership, threatened against the Partnership at law or in equity or before or by any federal or state commission, regulatory body or administrative agency or other governmental body, domestic or foreign, which will have a material adverse effect on the business or property of the Partnership. 1.7 The execution and delivery of this Agreement, the consummation of the transactions herein contemplated and compliance with the terms of this Agreement by the Partnership will not conflict with or constitute a default under any charter, bylaw, indenture, mortgage, deed of trust, lease, rule, regulation, writ, injunction or decree of any government, governmental instrumentality or court, domestic or foreign, having jurisdiction over the Partnership, except to the extent that the enforceability of the indemnity and/or contribution provisions contained in Section 4 of this Agreement may be limited under applicable securities laws. 1.8 The Partnership has full legal right, power and authority to enter into this Agreement and to perform the transactions contemplated hereby, except to the extent that the enforceability of the indemnity and/or contribution provisions contained in Section 4 of this Agreement may be limited under applicable securities laws. 1.9 At the time of the issuance of the Units, the Units will have been duly authorized and validly issued, and upon payment therefor, will be fully paid and nonassessable and will conform to the description thereof contained in the Prospectus, subject to the requirement that the limited partners do not participate in the management or control of the business of the Partnership.
Appears in 4 contracts
Samples: Dealer Manager Distribution Agreement (Behringer Harvard Short Term Opportunity Fund I Lp), Dealer Manager Distribution Agreement (Behringer Harvard Mid Term Value Enhancement Fund I Lp), Dealer Manager Distribution Agreement (Behringer Harvard Short Term Opportunity Fund I Lp)
REPRESENTATIONS AND WARRANTIES OF THE PARTNERSHIP. The Partnership represents and warrants to to, and agrees with, the Dealer Manager and each dealer with whom the Dealer Manager has entered into or will enter into a Selected Dealer Agreement in the form attached to this Agreement as Exhibit A (said dealers being hereinafter called the "Dealers") Holder that:
1.1 A (a) The Partnership has reasonable grounds to believe that it meets all the requirements for the filing of a registration statement on Form S-3 with respect the Commission. The Resale Registration Statement, at the time it becomes effective, and the final prospectus contained therein, will comply, and when any post-effective amendment to the Partnership has been prepared by Resale Registration Statement becomes effective or any supplement to such prospectus is filed with the Partnership Commission, the Registration Statement, the final prospectus and any such amendment or supplement, respectively, will comply, in accordance all material respects with the applicable requirements of the Securities Act and the applicable rules adopted by the Commission thereunder; the documents incorporated, or deemed to be incorporated, into the Resale Registration Statement or the related prospectus by reference pursuant to the requirements of 1933Item 12 of Form S-3 under the Securities Act, when they were or are filed with the Commission, conformed or will conform as of their respective dates in all material respects with the applicable requirements of the Securities Exchange Act of 1934, as amended (the "Securities Act")amended, and the applicable rules and regulations (adopted by the "Rules Commission thereunder; and Regulations") each part of the Securities Resale Registration Statement and Exchange Commission (any amendment thereto, at the "SEC") promulgated thereundertime it became effective, covering and the Units. Such registration statementfinal prospectus and any amendment or supplement thereto, which includes a preliminary prospectus, at the time it was initially filed with the SEC on or about September 27, 2002. Copies of such registration statement and each amendment thereto have been or will be delivered to the Dealer Manager. (The registration statement and prospectus contained therein, as finally amended and revised at the effective date of the registration statement, are respectively hereinafter referred to as the "Registration Statement" and the "Prospectus," except that if the Prospectus first filed by the Partnership Commission pursuant to Rule 424(b) 424 under the Securities Act shall differ Act, will not contain an untrue statement of a material fact or omit to a state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and at all times at and subsequent to the time when the Resale Registration Statement has been declared effective under the Securities Act, other than (i) from such time as a notice has been given to the Prospectus, the term "Prospectus" shall also include the Prospectus filed Holder pursuant to Rule 424(b).)
1.2 The Section 2.2(a)(viii) until such time as the Partnership has been duly furnishes an amended or supplemented prospectus pursuant to Section 2.2(a)(viii) or such earlier time as the Partnership provides notice that offers and validly organized and formed as a limited partnership under sales pursuant to the laws Resale Registration Statement may continue, or (ii) during any period when the Holder is to suspend use of the state of Texas, with prospectus or prospectus supplement related to the power and authority to conduct its business as described in the Prospectus.
1.3 The Resale Registration Statement as provided in Section 2.4(a), each prospectus contained in or prepared in connection with any Resale Registration Statement, and Prospectus comply with each prospectus furnished pursuant to Section 2.2(a)(iv), as then amended or supplemented, will conform in all material respects to the applicable requirements of the Securities Act and the Rules and Regulations and do will not contain any an untrue statements statement of a material facts fact or omit to state any a material fact required to be stated therein or necessary in order to make the statements therein therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the foregoing provisions of this representation and warranty in this Section 1.3 will 4.1(a) shall not extend apply to such any statements contained or omissions made in or omitted from the Registration Statement or Prospectus as are primarily within the knowledge of the Dealer Manager or any of the Dealers reliance upon and are based upon in conformity with information furnished by the Dealer Manager in writing to the Partnership specifically by or on behalf of the Holder expressly for inclusion thereinuse therein in any such Resale Registration Statement, prospectus or supplement.
1.4 (b) The Partnership intends to use the funds received from the sale of the Units as set forth in the Prospectus.
1.5 No consentexecution, approval, authorization or other order of any governmental authority is required in connection with the execution or delivery by the Partnership of this Agreement or the issuance and sale by the Partnership of the Units, except such as may be required under the Securities Act or applicable state securities laws.
1.6 There are no actions, suits or proceedings pending or to the knowledge of the Partnership, threatened against the Partnership at law or in equity or before or by any federal or state commission, regulatory body or administrative agency or other governmental body, domestic or foreign, which will have a material adverse effect on the business or property of the Partnership.
1.7 The execution and delivery of this Agreement, the consummation of the transactions herein contemplated and compliance with the terms performance of this Agreement by the Partnership will not conflict with (i) result in a breach or violation of any of the terms and provisions of the limited partnership agreement of the Partnership, (ii) constitute a breach or default under any chartermaterial agreement or contract to which the Partnership is a party, bylawexcept where any such foregoing occurrence will not prevent the consummation of the transactions contemplated herein or would not have a material adverse effect on the Partnership and its subsidiaries taken as a whole, indentureor (iii) result in a violation of any provision of law, mortgage, deed of trust, leasestatute, rule, regulation, writor any existing applicable decree, injunction judgment or decree order of any government, court or governmental instrumentality agency or court, domestic or foreign, body having jurisdiction over the Partnership, except to the extent that the enforceability of the indemnity and/or contribution provisions contained in Section 4 of this Agreement may be limited under applicable securities laws.
1.8 The Partnership (c) This Agreement has full legal right, power and authority to enter into this Agreement and to perform the transactions contemplated hereby, except to the extent that the enforceability of the indemnity and/or contribution provisions contained in Section 4 of this Agreement may be limited under applicable securities laws.
1.9 At the time of the issuance of the Units, the Units will have been duly authorized authorized, executed and validly issued, and upon payment therefor, will be fully paid and nonassessable and will conform to the description thereof contained in the Prospectus, subject to the requirement that the limited partners do not participate in the management or control of the business of delivered by the Partnership.
Appears in 2 contracts
Samples: Registration Rights Agreement (Kinder Morgan Energy Partners L P), Registration Rights Agreement (Kinder Morgan Energy Partners L P)
REPRESENTATIONS AND WARRANTIES OF THE PARTNERSHIP. The Partnership represents and warrants to the Dealer Manager and each dealer with whom the Dealer Manager has entered into or will enter into a Selected Dealer Agreement in the form attached to this Agreement as Exhibit A (said dealers being hereinafter called the "Dealers") that:
1.1 A registration statement with respect to the Partnership has been prepared by the Partnership in accordance with applicable requirements of the Securities Act of 1933, as amended (the "Securities Act"), and the applicable rules and regulations (the "Rules and Regulations") of the Securities and Exchange Commission (the "SEC") promulgated thereunder, covering the Units. Such registration statement, which includes a preliminary prospectus, was initially filed with the SEC on or about September 27___, 2002. Copies of such registration statement and each amendment thereto have been or will be delivered to the Dealer Manager. (The registration statement and prospectus contained therein, as finally amended and revised at the effective date of the registration statement, are respectively hereinafter referred to as the "Registration Statement" and the "Prospectus," except that if the Prospectus first filed by the Partnership pursuant to Rule 424(b) under the Securities Act shall differ from the Prospectus, the term "Prospectus" shall also include the Prospectus filed pursuant to Rule 424(b).)
1.2 The Partnership has been duly and validly organized and formed as a limited partnership under the laws of the state of Texas, with the power and authority to conduct its business as described in the Prospectus.
1.3 The Registration Statement and Prospectus comply with the Securities Act and the Rules and Regulations and do not contain any untrue statements of material facts or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading; provided, however, that the foregoing provisions of this Section 1.3 will not extend to such statements contained in or omitted from the Registration Statement or Prospectus as are primarily within the knowledge of the Dealer Manager or any of the Dealers and are based upon information furnished by the Dealer Manager in writing to the Partnership specifically for inclusion therein.
1.4 The Partnership intends to use the funds received from the sale of the Units as set forth in the Prospectus.
1.5 No consent, approval, authorization or other order of any governmental authority is required in connection with the execution or delivery by the Partnership of this Agreement or the issuance and sale by the Partnership of the Units, except such as may be required under the Securities Act or applicable state securities laws.
1.6 There are no actions, suits or proceedings pending or to the knowledge of the Partnership, threatened against the Partnership at law or in equity or before or by any federal or state commission, regulatory body or administrative agency or other governmental body, domestic or foreign, which will have a material adverse effect on the business or property of the Partnership.
1.7 The execution and delivery of this Agreement, the consummation of the transactions herein contemplated and compliance with the terms of this Agreement by the Partnership will not conflict with or constitute a default under any charter, bylaw, indenture, mortgage, deed of trust, lease, rule, regulation, writ, injunction or decree of any government, governmental instrumentality or court, domestic or foreign, having jurisdiction over the Partnership, except to the extent that the enforceability of the indemnity and/or contribution provisions contained in Section 4 of this Agreement may be limited under applicable securities laws.
1.8 The Partnership has full legal right, power and authority to enter into this Agreement and to perform the transactions contemplated hereby, except to the extent that the enforceability of the indemnity and/or contribution provisions contained in Section 4 of this Agreement may be limited under applicable securities laws.
1.9 At the time of the issuance of the Units, the Units will have been duly authorized and validly issued, and upon payment therefor, will be fully paid and nonassessable and will conform to the description thereof contained in the Prospectus, subject to the requirement that the limited partners do not participate in the management or control of the business of the Partnership.
Appears in 2 contracts
Samples: Dealer Manager Distribution Agreement (Behringer Harvard Short Term Opportunity Fund I Lp), Dealer Manager Distribution Agreement (Behringer Harvard Mid Term Value Enhancement Fund I Lp)
REPRESENTATIONS AND WARRANTIES OF THE PARTNERSHIP. The Partnership represents and warrants to and agrees with the Dealer Manager and each dealer with whom the Dealer Manager has entered into or will enter into a Selected Dealer Agreement in the form attached to this Agreement as Exhibit A (said dealers being hereinafter called the "Dealers") Underwriter that:
1.1 A registration statement (a) the Registration Statement has heretofore become effective under the Act or, with respect to any registration statement to be filed to register the Partnership offer and sale of Units pursuant to Rule 462(b) under the Act, will be filed with the Commission and become effective under the Act no later than 10:00 P.M., New York City time, on the date of determination of the public offering price for the Units; no stop order of the Commission preventing or suspending the use of the Basic Prospectus, any Preliminary Prospectus, the Prospectus Supplement, the Prospectus or any Permitted Free Writing Prospectus, or the effectiveness of the Registration Statement, has been prepared issued, and no proceedings for such purpose have been instituted or, to the Partnership’s knowledge, are contemplated by the Partnership Commission;
(b) the Registration Statement conformed when it became effective, conforms as of the date hereof and, as amended or supplemented and at the time of purchase, will conform, in accordance all material respects, with applicable the requirements of the Securities Act Act; the conditions to the use of 1933, Form S-3 in connection with the offering and sale of the Units as amended (contemplated hereby have been satisfied; the "Securities Act")Registration Statement meets, and the applicable rules offering and regulations (the "Rules and Regulations") sale of the Securities and Exchange Commission (Units as contemplated hereby conforms with, the "SEC") promulgated thereunder, covering requirements of Rule 415 under the Units. Such registration statement, which includes a preliminary prospectus, was initially filed with Act; the SEC on or about September 27, 2002. Copies of such registration statement and each amendment thereto have been or will be delivered to the Dealer Manager. (The registration statement and prospectus contained thereinRegistration Statement did not, as finally amended and revised at the effective date of the registration statementEffective Time, are respectively hereinafter referred to as the "Registration Statement" and the "Prospectus," except that if the Prospectus first filed by the Partnership pursuant to Rule 424(b) under the Securities Act shall differ from the Prospectus, the term "Prospectus" shall also include the Prospectus filed pursuant to Rule 424(b).)
1.2 The Partnership has been duly and validly organized and formed as contain an untrue statement of a limited partnership under the laws of the state of Texas, with the power and authority to conduct its business as described in the Prospectus.
1.3 The Registration Statement and Prospectus comply with the Securities Act and the Rules and Regulations and do not contain any untrue statements of material facts fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein not misleading; the Preliminary Prospectus conformed or will conform in all material respects with the requirements from the Act as of the date hereof, at the time it was filed with the Commission, as of the date of such Preliminary Prospectus and at the time of purchase; the Disclosure Package did not, as of the Applicable Time, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein therein, in the light of the circumstances under which they were made, not misleading; the Basic Prospectus conformed or will conform, as of its date and at the time of purchase, in all material respects, with the requirements of the Act; each of the Prospectus Supplement and the Prospectus will conform, as of the date that it is filed with the Commission, the date of the Prospectus Supplement and the time of purchase, in all material respects, with the requirements of the Act (in the case of the Prospectus, including, without limitation, Section 10(a) of the Act); as of the date of the Prospectus Supplement, and at the time of purchase, the Prospectus Supplement or the Prospectus, as then amended or supplemented, did not or will not 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; as of the date of such Permitted Free Writing Prospectus and at the time of purchase each Permitted Free Writing Prospectus when taken together as a whole with the Disclosure Package did not or will not 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; each electronic road show when taken together as a whole with the Disclosure Package, does not, as of the date hereof, contain any untrue statement of a material fact or omit to state any material fact necessary in or to make the statements therein, in the light of the circumstances under which they were made, not misleading; each Permitted Free Writing prospectus does not include any information that conflicts with the information contained in the Registration Statement or the Prospectus; each Incorporated Document, at the time such document was filed with the Commission or at the time such document became effective, as applicable, conformed, in all material respects, with the requirements of the Exchange Act and did not 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; provided, however, that the foregoing provisions Partnership makes no representation or warranty in this Section 3(b) with respect to any statement contained in the Registration Statement, any Preliminary Prospectus, the Prospectus, any Permitted Free Writing Prospectus or any Incorporated Document in reliance upon and in conformity with information concerning an Underwriter or Selling Unitholder and furnished in writing by or on behalf of the Underwriter or on behalf of such Selling Unitholder to the Partnership expressly for use in the Registration Statement, such Preliminary Prospectus, the Prospectus, such Permitted Free Writing Prospectus or Incorporated Document;
(c) prior to the execution of this Agreement, the Partnership has not, directly or indirectly, offered or sold any 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 offer or sale of the Units, in each case other than the Preliminary Prospectus or the Permitted Free Writing Prospectus, if any; the Partnership has not, directly or indirectly, prepared, used or referred to any Permitted Free Writing Prospectus except in compliance with Rules 164 and 433 under the Act; the Partnership is not an “ineligible issuer” (as defined in Rule 405 under the Act) as of the eligibility determination date for purposes of Rules 164 and 433 under the Act with respect to the offering of the Units contemplated by the Registration Statement; the parties hereto agree and understand that the content of any and all “road shows” (as defined in Rule 433 under the Act) related to the offering of the Units contemplated hereby is solely the property of the Partnership;
(d) in accordance with Rule 5110(b)(7)(C)(i) of the Financial Industry Regulatory Authority, Inc. (“FINRA”), the Units are registered with the Commission on Forms S-3 under the Act pursuant to the standards for such Form S-3 in effect prior to October 21, 1992;
(e) (i) as of the date of this Agreement, the issued and outstanding limited partner interests of the Partnership consist of 81,162,755 Common Units, 39,997 Common Units—Class B (“Class B Units”), 1,738,233 Waiver Units—Class 3 and 1,738,233 Waiver Units—Class 4 (together, “Waiver Units”). The only issued and outstanding general partner interests of the Partnership are the interests of Genesis Energy, LLC, a Delaware limited liability company (the “General Partner”), described in the Partnership Agreement. All of the outstanding Common Units, Class B Units and Waiver Units have been duly authorized and validly issued in accordance with applicable Law and the Partnership Agreement and are fully paid (to the extent required by applicable Law and under the Partnership Agreement) and non-assessable (except as such non-assessability may be affected by Sections 17-303, 17-607 and 17-804 of the Delaware Revised Uniform Limited Partnership Act (the “Delaware LP Act”));
(ii) other than the Genesis Energy, Inc. 2007 Long-Term Incentive Plan, the Partnership has no equity compensation plans that contemplate the issuance of Common Units or any other class of equity (or securities convertible into or exchangeable for Common Units or any other class of equity). The Partnership has no outstanding indebtedness having the right to vote (or convertible into or exchangeable for securities having the right to vote) on any matters on which the unitholders of the Partnership (within the meaning of the Partnership Agreement, the “Unitholders”) may vote. Except as set forth in the first sentence of this Section 1.3 will not extend to such statements contained 3(e)(ii) or as disclosed in the Disclosure Package, there are no outstanding or omitted from authorized (A) options, warrants, preemptive rights, subscriptions, calls or other rights, convertible securities, agreements, claims or commitments of any character obligating the Registration Statement or Prospectus as are primarily within the knowledge of the Dealer Manager Partnership or any of its Subsidiaries to issue, transfer or sell any partnership interests or other equity interests in the Dealers Partnership or any of its Subsidiaries or securities convertible into or exchangeable for such partnership interests or other equity interests, (B) obligations of the Partnership or any of its Subsidiaries to repurchase, redeem or otherwise acquire any partnership interests or other equity interests in the Partnership or any of its Subsidiaries or any such securities or agreements listed in clause (A) of this section or (C) voting trusts or similar agreements to which the Partnership or any of its Subsidiaries is a party with respect to the voting of the equity interests of the Partnership or any of its Subsidiaries;
(iii) the Partnership, directly or indirectly, owns (A) 99.99% of the partnership interests in Genesis Crude Oil, L.P., a Delaware limited partnership (the “Operating Partnership”) (and are based upon information furnished by the Dealer Manager General Partner owns 0.01% of the partnership interests in writing the Operating Partnership), (B) 100% of the limited partnership interests in each of Genesis Pipeline Texas, L.P., a Delaware limited partnership, Genesis Pipeline USA, L.P., a Delaware limited partnership, Genesis CO2 Pipeline, L.P., a Delaware limited partnership, Genesis Natural Gas Pipeline, L.P., a Delaware limited partnership, and Genesis Syngas Investments, L.P., a Delaware limited partnership (the “Limited Partnership Subsidiaries”), (C) 90.91% of the equity interests in Thunder Basin Holdings, LLC, a Delaware limited liability company (which owns 100% of the equity interests in each of Antelope Refining, LLC, a Delaware limited liability company, and Thunder Basin Pipeline, LLC, a Delaware limited liability company), (D) 100% of the equity interests in each other Subsidiary not listed in clauses (A), (B) or (C) of this Section 3(e)(iii), (E) 50% of the partnership interests in T&P Syngas Supply Company, a Delaware general partnership (“T&P Syngas”), (F) 50% of the outstanding limited liability company interests of Sandhill Group, LLC, a Mississippi limited liability company (“Sandhill”), (G) 10% or less of the limited liability company interest in Xxxxxxxx Hydrogen Products, LLC, a Delaware limited liability company (“Xxxxxxxx”), (H) 50% of the equity interests in Cameron Highway Oil Pipeline Company, a Delaware partnership (“Cameron”), (I) 50% of the equity interests in Southeast Xxxxxxxx Canyon Pipeline Company, L.L.C., a Delaware limited liability company (“Sekco”), (J) 28% of the equity interests in Poseidon Oil Pipeline Company, L.L.C., a Delaware limited liability company (“Poseidon”), and (K) 29% of the equity interests in Odyssey Pipeline L.L.C., a Delaware limited liability company (“Odyssey”), in each case free and clear of any Liens (except for such restrictions as may exist under applicable Law and except for such Liens as may be imposed under the Partnership’s or the Partnership’s Subsidiaries’ credit facilities filed as exhibits to the Partnership specifically SEC Documents (defined below), and all such ownership interests have been duly authorized and validly issued and are fully paid (to the extent required by applicable Law and the organizational documents of the Partnership’s Subsidiaries, T&P Syngas, Sandhill, Faustina, Cameron, Sekco, Poseidon and Odyssey, as applicable) and non-assessable (except as non-assessability may be affected by the Delaware Revised Uniform Partnership Act, Sections 17-303, 17-607 and 17-804 of the Delaware LP Act, Sections 18-607 and 18-804 of the Delaware Limited Liability Company Act (the “Delaware LLC Act”) or any analogous statue in the jurisdiction of formation of any Subsidiary and Sandhill, or the organizational documents of the Partnership’s Subsidiaries, T&P Syngas, Sandhill, Faustina, Cameron, Sekco, Poseidon and Odyssey, as applicable) and free of preemptive rights, with no personal liability attaching to the ownership thereof, and except for inclusion therein.T&P Syngas, Sandhill, Faustina, Cameron, Sekco, Poseidon and Odyssey neither the Partnership nor any of its Subsidiaries owns directly or indirectly any shares of capital stock or other securities of, or interest in, any other person or entity (other than another Subsidiary), or is obligated to make any capital contribution to or other investment in any other person or entity. Schedule E attached hereto contains a complete and accurate list of all of the Partnership’s “significant subsidiaries” (as defined in Rule 405 under the Act);
1.4 The (iv) the General Partner is the sole general partner of the Partnership intends and each Limited Partnership Subsidiary, with a non-economic general partner interest in the Partnership and a non-economic general partner interest in each Limited Partnership Subsidiary. Such general partner interests have been duly authorized and validly issued in accordance with applicable Law, the Partnership Agreement and the partnership agreements of each Limited Partnership Subsidiary and are fully paid (to use the funds received from extent required by applicable Law and under the Partnership Agreement and the partnership agreements of each Limited Partnership Subsidiary) and non assessable (except as such non assessability may be affected by Sections 17-303, 17-607 and 17-804 of the Delaware LP Act);
(v) the offer and sale of the Units and the limited partner interests represented thereby have been duly authorized by the Partnership pursuant to the Partnership Agreement and are validly issued, fully paid (to the extent required by applicable Law and the Partnership Agreement) and non-assessable (except as such non-assessability may be affected by Sections 17-303, 17-607 and 17-804 of the Delaware LP Act);
(vii) the Units have been or will be, as the case may be, issued in compliance with all applicable rules of the Primary Stock Exchange;
(viii) the Partnership’s currently outstanding Common Units are listed on the Primary Stock Exchange and the Partnership has not received any notice of delisting;
(ix) the Units shall have those rights, preferences, privileges and restrictions governing the Common Units as set forth in the Prospectus.
1.5 No consentPartnership Agreement. A true and correct copy of the Partnership Agreement, approvalas amended through the date hereof, authorization or other order of any governmental authority is required in connection with the execution or delivery has been filed by the Partnership of this Agreement or with the issuance and sale by the Partnership of the UnitsCommission on January 3, except such 2011, as may be required under the Securities Act or applicable state securities laws.
1.6 There are no actions, suits or proceedings pending or Exhibit 5.1 to the knowledge of the Partnership, threatened against the Partnership at law or in equity or before or by any federal or state commission, regulatory body or administrative agency or other governmental body, domestic or foreign, which will have a material adverse effect ’s Current Report on the business or property of the Partnership.
1.7 The execution and delivery of this Agreement, the consummation of the transactions herein contemplated and compliance with the terms of this Agreement by the Partnership will not conflict with or constitute a default under any charter, bylaw, indenture, mortgage, deed of trust, lease, rule, regulation, writ, injunction or decree of any government, governmental instrumentality or court, domestic or foreign, having jurisdiction over the Partnership, except to the extent that the enforceability of the indemnity and/or contribution provisions contained in Section 4 of this Agreement may be limited under applicable securities laws.
1.8 The Partnership has full legal right, power and authority to enter into this Agreement and to perform the transactions contemplated hereby, except to the extent that the enforceability of the indemnity and/or contribution provisions contained in Section 4 of this Agreement may be limited under applicable securities laws.
1.9 At the time of the issuance of the Units, the Units will have been duly authorized and validly issued, and upon payment therefor, will be fully paid and nonassessable and will conform to the description thereof contained in the Prospectus, subject to the requirement that the limited partners do not participate in the management or control of the business of the Partnership.Form 8-K.
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES OF THE PARTNERSHIP. The Partnership Each of the Capital Parties jointly and severally represents and warrants to and agrees with the Dealer Manager and each dealer with whom the Dealer Manager has entered into or will enter into a Selected Dealer Agreement in the form attached to this Agreement as Exhibit A (said dealers being hereinafter called the "Dealers") that:
1.1 A registration statement with respect to the (a) The Partnership has been prepared by the Partnership and filed, in accordance with applicable requirements the provisions of the Securities Act of 1933, as amended (the "Securities Act")amended, and the applicable rules and regulations thereunder (collectively, the "Rules and Regulations") of “Act”), with the Securities and Exchange Commission (the "SEC"“Commission”) promulgated thereundera registration statement on Form F-3 (File No. 333-210394) (unless the context otherwise requires, covering the “registration statement”), including a prospectus relating to the Units, not earlier than three years prior to the date hereof, which registration statement incorporates by reference documents which the Partnership has filed, or will file, in accordance with the provisions of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (collectively, the “Exchange Act”). Amendments to such registration statement, if necessary or appropriate, have been similarly prepared and filed with the Commission in accordance with the Act. Such registration statement, which includes a preliminary prospectusas so amended, was initially filed with has become effective under the SEC on Act. No stop order of the Commission preventing or about September 27suspending the use of the Basic Prospectus (as defined below), 2002. Copies the Prospectus Supplement (as defined below), the Prospectus (as defined below) or any Permitted Free Writing Prospectus (as defined below), or the use or effectiveness of the Registration Statement, has been issued, and no proceedings for such registration statement and each amendment thereto purpose have been or will be delivered instituted or, to the Dealer ManagerPartnership’s knowledge, are contemplated by the Commission. (The registration statement and prospectus contained thereinExcept where the context otherwise requires, “Registration Statement,” as finally amended and revised at the effective date of used herein, means the registration statement, are respectively hereinafter referred 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 Manager (the “Effective Time”), as well as any new registration statement or post effective amendment as may have been filed pursuant to Section 4(e) of this Agreement including (i) all documents filed as a part thereof or incorporated or deemed to be incorporated by reference therein, (ii) any information contained or incorporated by reference in a prospectus filed with the "Registration Statement" and the "Prospectus," except that if the Prospectus first filed by the Partnership Commission pursuant to Rule 424(b) under the Securities Act shall differ from Act, to the Prospectusextent such information is deemed, the term "Prospectus" shall also include the Prospectus filed pursuant to Rule 424(b).)
1.2 The Partnership has been duly and validly organized and formed as a limited partnership 430B or Rule 430C under the laws Act, to be part of the state of Texasregistration statement at the Effective Time, with and (iii) any registration statement filed to register the power offer and authority to conduct its business as described in the Prospectus.
1.3 The Registration Statement and Prospectus comply with the Securities Act and the Rules and Regulations and do not contain any untrue statements of material facts or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading; provided, however, that the foregoing provisions of this Section 1.3 will not extend to such statements contained in or omitted from the Registration Statement or Prospectus as are primarily within the knowledge of the Dealer Manager or any of the Dealers and are based upon information furnished by the Dealer Manager in writing to the Partnership specifically for inclusion therein.
1.4 The Partnership intends to use the funds received from the sale of the Units as set forth in the Prospectus.
1.5 No consent, approval, authorization or other order of any governmental authority is required in connection with the execution or delivery by the Partnership of this Agreement or the issuance and sale by the Partnership of the Units, except such as may be required pursuant to Rule 462(b) under the Securities Act or applicable state securities laws.
1.6 There are no actionsAct. Except where the context otherwise requires, suits or proceedings pending or to “Basic Prospectus,” as used herein, means the knowledge prospectus filed as part of the Partnershipeach Registration Statement, threatened against the Partnership at law or in equity or before or by any federal or state commission, regulatory body or administrative agency or other governmental body, domestic or foreign, which will have a material adverse effect on the business or property of the Partnership.
1.7 The execution and delivery of this Agreement, the consummation of the transactions herein contemplated and compliance with the terms of this Agreement by the Partnership will not conflict with or constitute a default under any charter, bylaw, indenture, mortgage, deed of trust, lease, rule, regulation, writ, injunction or decree of any government, governmental instrumentality or court, domestic or foreign, having jurisdiction over the Partnership, except to the extent that the enforceability of the indemnity and/or contribution provisions contained in Section 4 of this Agreement may be limited under applicable securities laws.
1.8 The Partnership has full legal right, power and authority to enter into this Agreement and to perform the transactions contemplated hereby, except to the extent that the enforceability of the indemnity and/or contribution provisions contained in Section 4 of this Agreement may be limited under applicable securities laws.
1.9 At the time of the issuance of the Units, the Units will have been duly authorized and validly issued, and upon payment therefor, will be fully paid and nonassessable and will conform to the description thereof contained in the Prospectus, subject to the requirement that the limited partners do not participate in the management or control of the business of the Partnership.together with
Appears in 1 contract
Samples: Equity Distribution Agreement (Capital Product Partners L.P.)
REPRESENTATIONS AND WARRANTIES OF THE PARTNERSHIP. The Partnership represents and warrants to and agrees with each of the Dealer Manager and each dealer with whom the Dealer Manager has entered into or will enter into a Selected Dealer Agreement in the form attached to this Agreement as Exhibit A (said dealers being hereinafter called the "Dealers") Underwriters that:
1.1 A registration statement (a) each Registration Statement has heretofore become effective under the Act or, with respect to any registration statement to be filed to register the Partnership offer and sale of Units pursuant to Rule 462(b) under the Act, will be filed with the Commission and become effective under the Act no later than 10:00 P.M., New York City time, on the date of determination of the public offering price for the Units; no stop order of the Commission preventing or suspending the use of any Basic Prospectus, any Preliminary Prospectus, the Prospectus Supplement, the Prospectus or any Permitted Free Writing Prospectus, or the effectiveness of the Registration Statements, has been prepared issued, and no proceedings for such purpose have been instituted or, to the Partnership’s knowledge, are contemplated by the Partnership Commission;
(b) each Registration Statement conformed when it became effective, conforms as of the date hereof and, as amended or supplemented, at the time of purchase and each additional time of purchase, if any, will conform, in accordance all material respects, with applicable the requirements of the Securities Act Act; the conditions to the use of 1933, Form S-3 in connection with the offering and sale of the Units as amended (the "Securities Act")contemplated hereby have been satisfied; each Registration Statement meets, and the applicable rules offering and regulations (the "Rules and Regulations") sale of the Securities and Exchange Commission (Units as contemplated hereby conforms with, the "SEC") promulgated thereunder, covering requirements of Rule 415 under the Units. Such registration statement, which includes a preliminary prospectus, was initially filed with the SEC on or about September 27, 2002. Copies of such registration statement and Act; each amendment thereto have been or will be delivered to the Dealer Manager. (The registration statement and prospectus contained thereinRegistration Statement did not, as finally amended and revised at the effective date of the registration statementEffective Time, are respectively hereinafter referred to as the "Registration Statement" and the "Prospectus," except that if the Prospectus first filed by the Partnership pursuant to Rule 424(b) under the Securities Act shall differ from the Prospectus, the term "Prospectus" shall also include the Prospectus filed pursuant to Rule 424(b).)
1.2 The Partnership has been duly and validly organized and formed as contain an untrue statement of a limited partnership under the laws of the state of Texas, with the power and authority to conduct its business as described in the Prospectus.
1.3 The Registration Statement and Prospectus comply with the Securities Act and the Rules and Regulations and do not contain any untrue statements of material facts fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein not misleading; each Preliminary Prospectus conformed or will conform in all material respects with the requirements from the Act as of the date hereof, at the time it was filed with the Commission, as of the date of such Preliminary Prospectus and at the time of purchase and each additional time of purchase, if any; the Disclosure Package did not, as of the Applicable Time, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein therein, in the light of the circumstances under which they were made, not misleading; each Basic Prospectus conformed or will conform, as of its date and at the time of purchase and each additional time of purchase, if any, in all material respects, with the requirements of the Act; each of the Prospectus Supplement and the Prospectus will conform, as of the date that it is filed with the Commission, the date of the Prospectus Supplement, the time of purchase and each additional time of purchase, if any, in all material respects, with the requirements of the Act (in the case of the Prospectus, including, without limitation, Section 10(a) of the Act); as of the date of the Prospectus Supplement, and at the time of purchase and the additional time of purchase, if any, each Prospectus Supplement or the Prospectus, as then amended or supplemented, did not or will not 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; as of the date of such Permitted Free Writing Prospectus and at the time of purchase each Permitted Free Writing Prospectus when taken together as a whole with the Disclosure Package did not or will not 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; each electronic road show when taken together as a whole with the Disclosure Package, does not, as of the date hereof, contain any untrue statement of a material fact or omit to state any material fact necessary in or to make the statements therein, in the light of the circumstances under which they were made, not misleading; each Permitted Free Writing prospectus does not include any information that conflicts with the information contained in the Registration Statements or the Prospectus; each Incorporated Document, at the time such document was filed with the Commission or at the time such document became effective, as applicable, conformed, in all material respects, with the requirements of the Exchange Act and did not 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; provided, however, that the foregoing provisions of Partnership makes no representation or warranty in this Section 1.3 will not extend 3(b) with respect to such statements any statement contained in or omitted from the Registration Statement or Statements, any Preliminary Prospectus, the Prospectus, any Permitted Free Writing Prospectus as are primarily within the knowledge of the Dealer Manager or any of the Dealers Incorporated Document in reliance upon and are based upon in conformity with information concerning an Underwriter or Selling Unitholder and furnished by the Dealer Manager in writing by or on behalf of such Underwriter through the Representatives or on behalf of such Selling Unitholder to the Partnership specifically expressly for inclusion therein.
1.4 The Partnership intends to use the funds received from the sale of the Units as set forth in the Registration Statements, such Preliminary Prospectus., the Prospectus, such Permitted Free Writing Prospectus or Incorporated Document;
1.5 No consent, approval, authorization or other order of any governmental authority is required in connection with (c) prior to the execution or delivery by the Partnership of this Agreement or the issuance and sale by the Partnership of the Units, except such as may be required under the Securities Act or applicable state securities laws.
1.6 There are no actions, suits or proceedings pending or to the knowledge of the Partnership, threatened against the Partnership at law or in equity or before or by any federal or state commission, regulatory body or administrative agency or other governmental body, domestic or foreign, which will have a material adverse effect on the business or property of the Partnership.
1.7 The execution and delivery of this Agreement, the consummation Partnership has not, directly or indirectly, offered or sold any Units by means of any “prospectus” (within the meaning of the transactions herein contemplated and compliance Act) or used any “prospectus” (within the meaning of the Act) in connection with the terms of this Agreement by the Partnership will not conflict with offer or constitute a default under any charter, bylaw, indenture, mortgage, deed of trust, lease, rule, regulation, writ, injunction or decree of any government, governmental instrumentality or court, domestic or foreign, having jurisdiction over the Partnership, except to the extent that the enforceability of the indemnity and/or contribution provisions contained in Section 4 of this Agreement may be limited under applicable securities laws.
1.8 The Partnership has full legal right, power and authority to enter into this Agreement and to perform the transactions contemplated hereby, except to the extent that the enforceability of the indemnity and/or contribution provisions contained in Section 4 of this Agreement may be limited under applicable securities laws.
1.9 At the time of the issuance sale of the Units, in each case other than the Preliminary Prospectus or the Permitted Free Writing Prospectus, if any; the Partnership has not, directly or indirectly, prepared, used or referred to any Permitted Free Writing Prospectus except in compliance with Rules 164 and 433 under the Act; the Partnership is not an “ineligible issuer” (as defined in Rule 405 under the Act) as of the eligibility determination date for purposes of Rules 164 and 433 under the Act with respect to the offering of the Units will have been duly authorized contemplated by the Registration Statements; the parties hereto agree and validly issued, understand that the content of any and upon payment therefor, will be fully paid and nonassessable and will conform all “road shows” (as defined in Rule 433 under the Act) related to the description thereof contained in the Prospectus, subject to the requirement that the limited partners do not participate in the management or control offering of the business Units contemplated hereby is solely the property of the Partnership.;
(d) in accordance with Rule 5110(b)(7)(C)(i) of the Financial Industry Regulatory Authority, Inc. (“FINRA”), the Units are registered with the Commission on Forms S-3 under the Act pursuant to the standards for such Form S-3 in effect prior to October 21, 1992;
(e) (i) as of the date of this Agreement, the issued and outstanding limited partner interests of the Partnership consist of 64,575,065 Common Units, 39,997 Common Units - Class B (“Class B Units”), 1,737,251 Waiver Units - Class 1, 1,737,251 Waiver Units - Class 2, 1,737,251 Waiver Units - Class 3 and 1,737,251 Waiver Units -
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES OF THE PARTNERSHIP. The Partnership represents and warrants to and agrees with each of the Dealer Manager and each dealer with whom the Dealer Manager has entered into or will enter into a Selected Dealer Agreement in the form attached to this Agreement as Exhibit A (said dealers being hereinafter called the "Dealers") Underwriters that:
1.1 A registration statement (a) the Registration Statement has heretofore become effective under the Act or, with respect to any registration statement to be filed to register the Partnership offer and sale of Units pursuant to Rule 462(b) under the Act, will be filed with the Commission and become effective under the Act no later than 10:00 P.M., New York City time, on the date of determination of the public offering price for the Units; no stop order of the Commission preventing or suspending the use of the Basic Prospectus, any Preliminary Prospectus, the Prospectus Supplement, the Prospectus or any Permitted Free Writing Prospectus, or the effectiveness of the Registration Statement, has been prepared issued, and no proceedings for such purpose have been instituted or, to the Partnership’s knowledge, are contemplated by the Partnership Commission;
(b) the Registration Statement conformed when it became effective, conforms as of the date hereof and, as amended or supplemented, at the time of purchase and each additional time of purchase, if any, will conform, in accordance all material respects, with applicable the requirements of the Securities Act Act; the conditions to the use of 1933, Form S-3 in connection with the offering and sale of the Units as amended (contemplated hereby have been satisfied; the "Securities Act")Registration Statement meets, and the applicable rules offering and regulations (the "Rules and Regulations") sale of the Securities and Exchange Commission (Units as contemplated hereby conforms with, the "SEC") promulgated thereunder, covering requirements of Rule 415 under the Units. Such registration statement, which includes a preliminary prospectus, was initially filed with Act; the SEC on or about September 27, 2002. Copies of such registration statement and each amendment thereto have been or will be delivered to the Dealer Manager. (The registration statement and prospectus contained thereinRegistration Statement did not, as finally amended and revised at the effective date of the registration statementEffective Time, are respectively hereinafter referred to as the "Registration Statement" and the "Prospectus," except that if the Prospectus first filed by the Partnership pursuant to Rule 424(b) under the Securities Act shall differ from the Prospectus, the term "Prospectus" shall also include the Prospectus filed pursuant to Rule 424(b).)
1.2 The Partnership has been duly and validly organized and formed as contain an untrue statement of a limited partnership under the laws of the state of Texas, with the power and authority to conduct its business as described in the Prospectus.
1.3 The Registration Statement and Prospectus comply with the Securities Act and the Rules and Regulations and do not contain any untrue statements of material facts fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein not misleading; each Preliminary Prospectus conformed or will conform in all material respects with the requirements from the Act as of the date hereof, at the time it was filed with the Commission, as of the date of such Preliminary Prospectus and at the time of purchase and each additional time of purchase, if any; the Disclosure Package did not, as of the Applicable Time, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein therein, in the light of the circumstances under which they were made, not misleading; the Basic Prospectus conformed or will conform, as of its date and at the time of purchase and each additional time of purchase, if any, in all material respects, with the requirements of the Act; each of the Prospectus Supplement and the Prospectus will conform, as of the date that it is filed with the Commission, the date of the Prospectus Supplement, the time of purchase and each additional time of purchase, if any, in all material respects, with the requirements of the Act (in the case of the Prospectus, including, without limitation, Section 10(a) of the Act); as of the date of the Prospectus Supplement, and at the time of purchase and the additional time of purchase, if any, the Prospectus Supplement or the Prospectus, as then amended or supplemented, did not or will not 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; as of the date of such Permitted Free Writing Prospectus and at the time of purchase each Permitted Free Writing Prospectus when taken together as a whole with the Disclosure Package did not or will not 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; each electronic road show when taken together as a whole with the Disclosure Package, does not, as of the date hereof, contain any untrue statement of a material fact or omit to state any material fact necessary in or to make the statements therein, in the light of the circumstances under which they were made, not misleading; each Permitted Free Writing prospectus does not include any information that conflicts with the information contained in the Registration Statement or the Prospectus; each Incorporated Document, at the time such document was filed with the Commission or at the time such document became effective, as applicable, conformed, in all material respects, with the requirements of the Exchange Act and did not 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; provided, however, that the foregoing provisions Partnership makes no representation or warranty in this Section 3(b) with respect to any statement contained in the Registration Statement, any Preliminary Prospectus, the Prospectus, any Permitted Free Writing Prospectus or any Incorporated Document in reliance upon and in conformity with information concerning an Underwriter and furnished in writing by or on behalf of such Underwriter through the Representatives to the Partnership expressly for use in the Registration Statement, such Preliminary Prospectus, the Prospectus, such Permitted Free Writing Prospectus or Incorporated Document;
(c) prior to the execution of this Agreement, the Partnership has not, directly or indirectly, offered or sold any 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 offer or sale of the Units, in each case other than the Preliminary Prospectus or the Permitted Free Writing Prospectus, if any; the Partnership has not, directly or indirectly, prepared, used or referred to any Permitted Free Writing Prospectus except in compliance with Rules 164 and 433 under the Act; the Partnership is not an “ineligible issuer” (as defined in Rule 405 under the Act) as of the eligibility determination date for purposes of Rules 164 and 433 under the Act with respect to the offering of the Units contemplated by the Registration Statement; the parties hereto agree and understand that the content of any and all “road shows” (as defined in Rule 433 under the Act) related to the offering of the Units contemplated hereby is solely the property of the Partnership;
(d) in accordance with Rule 5110(b)(7)(C)(i) of the Financial Industry Regulatory Authority, Inc. (“FINRA”), the Units are registered with the Commission on Forms S-3 under the Act pursuant to the standards for such Form S-3 in effect prior to October 21, 1992;
(e) (i) as of the date of this Agreement, the issued and outstanding limited partner interests of the Partnership consist of 73,662,316 Common Units, 39,997 Common Units—Class B (“Class B Units”), 1,737,251 Waiver Units—Class 2, 1,737,251 Waiver Units—Class 3 and 1,737,251 Waiver Units—Class 4 (collectively, “Waiver Units”). The only issued and outstanding general partner interests of the Partnership are the interests of Genesis Energy, LLC, a Delaware limited liability company (the “General Partner”), described in the Partnership Agreement. All of the outstanding Common Units, Class B Units and Waiver Units have been duly authorized and validly issued in accordance with applicable Law and the Partnership Agreement and are fully paid (to the extent required by applicable Law and under the Partnership Agreement) and non-assessable (except as such non-assessability may be affected by Sections 17-303, 17-607 and 17-804 of the Delaware Revised Uniform Limited Partnership Act (the “Delaware LP Act”));
(ii) other than the Genesis Energy, Inc. 2007 Long-Term Incentive Plan, the Partnership has no equity compensation plans that contemplate the issuance of Common Units or any other class of equity (or securities convertible into or exchangeable for Common Units or any other class of equity). The Partnership has no outstanding indebtedness having the right to vote (or convertible into or exchangeable for securities having the right to vote) on any matters on which the unitholders of the Partnership (within the meaning of the Partnership Agreement, the “Unitholders”) may vote. Except as set forth in the first sentence of this Section 1.3 will not extend to such statements contained 3(e)(ii) or as disclosed in the Disclosure Package, there are no outstanding or omitted from authorized (A) options, warrants, preemptive rights, subscriptions, calls or other rights, convertible securities, agreements, claims or commitments of any character obligating the Registration Statement or Prospectus as are primarily within the knowledge of the Dealer Manager Partnership or any of its Subsidiaries to issue, transfer or sell any partnership interests or other equity interests in the Dealers Partnership or any of its Subsidiaries or securities convertible into or exchangeable for such partnership interests or other equity interests, (B) obligations of the Partnership or any of its Subsidiaries to repurchase, redeem or otherwise acquire any partnership interests or other equity interests in the Partnership or any of its Subsidiaries or any such securities or agreements listed in clause (A) of this section or (C) voting trusts or similar agreements to which the Partnership or any of its Subsidiaries is a party with respect to the voting of the equity interests of the Partnership or any of its Subsidiaries;
(iii) the Partnership, directly or indirectly, owns (A) 99.99% of the partnership interests in Genesis Crude Oil, L.P., a Delaware limited partnership (the “Operating Partnership”) (and are based upon information furnished by the Dealer Manager General Partner owns 0.01% of the partnership interests in writing the Operating Partnership), (B) 100% of the limited partnership interests in each of Genesis Pipeline Texas, L.P., a Delaware limited partnership, Genesis Pipeline USA, L.P., a Delaware limited partnership, Genesis CO2 Pipeline, L.P., a Delaware limited partnership, Genesis Natural Gas Pipeline, L.P., a Delaware limited partnership, and Genesis Syngas Investments, L.P., a Delaware limited partnership (the “Limited Partnership Subsidiaries”), (C) 90.91% of the equity interests in Thunder Basin Holdings, LLC, a Delaware limited liability company (which owns 100% of the equity interests in each of Antelope Refining, LLC, a Delaware limited liability company, and Thunder Basin Pipeline, LLC, a Delaware limited liability company), (D) 100% of the equity interests in each other Subsidiary not listed in clauses (A), (B) or (C) of this Section 3(e)(iii), (E) 50% of the partnership interests in T&P Syngas Supply Company, a Delaware general partnership (“T&P Syngas”), (F) 50% of the outstanding limited liability company interests of Sandhill Group, LLC, a Mississippi limited liability company (“Sandhill”), (G) 10% or less of the limited liability company interest in Xxxxxxxx Hydrogen Products, LLC, a Delaware limited liability company (“Xxxxxxxx”), (H) 50% of the equity interests in Cameron Highway Oil Pipeline Company, a Delaware partnership (“Cameron”), (I) 50% of the equity interests in Southeast Xxxxxxxx Canyon Pipeline Company, L.L.C., a Delaware limited liability company (“Sekco”), (J) 28% of the equity interests in Poseidon Oil Pipeline Company, L.L.C., a Delaware limited liability company (“Poseidon”), and (K) 29% of the equity interests in Odyssey Pipeline L.L.C., a Delaware limited liability company (“Odyssey”), in each case free and clear of any Liens (except for such restrictions as may exist under applicable Law and except for such Liens as may be imposed under the Partnership’s or the Partnership’s Subsidiaries’ credit facilities filed as exhibits to the Partnership specifically SEC Documents (defined below)), and all such ownership interests have been duly authorized and validly issued and are fully paid (to the extent required by applicable Law and the organizational documents of the Partnership’s Subsidiaries, T&P Syngas, Sandhill, Faustina, Cameron, Sekco, Poseidon and Odyssey, as applicable) and non-assessable (except as non-assessability may be affected by the Delaware Revised Uniform Partnership Act, Sections 17-303, 17-607 and 17-804 of the Delaware LP Act, Sections 18-607 and 18-804 of the Delaware Limited Liability Company Act (the “Delaware LLC Act”) or any analogous statue in the jurisdiction of formation of any Subsidiary and Sandhill, or the organizational documents of the Partnership’s Subsidiaries, T&P Syngas, Sandhill, Faustina, Cameron, Sekco, Poseidon and Odyssey, as applicable) and free of preemptive rights, with no personal liability attaching to the ownership thereof, and except for inclusion therein.T&P Syngas, Sandhill, Faustina, Cameron, Sekco, Poseidon and Odyssey neither the Partnership nor any of its Subsidiaries owns directly or indirectly any shares of capital stock or other securities of, or interest in, any other person or entity (other than another Subsidiary), or is obligated to make any capital contribution to or other investment in any other person or entity. Schedule D attached hereto contains a complete and accurate list of all of the Partnership’s “significant subsidiaries” (as defined in Rule 405 under the Act);
1.4 The (iv) the General Partner is the sole general partner of the Partnership intends and each Limited Partnership Subsidiary, with a non-economic general partner interest in the Partnership and a non-economic general partner interest in each Limited Partnership Subsidiary. Such general partner interests have been duly authorized and validly issued in accordance with applicable Law, the Partnership Agreement and the partnership agreements of each Limited Partnership Subsidiary and are fully paid (to use the funds received from extent required by applicable Law and under the Partnership Agreement and the partnership agreements of each Limited Partnership Subsidiary) and non assessable (except as such non assessability may be affected by Sections 17-303, 17-607 and 17-804 of the Delaware LP Act);
(v) the offer and sale of the Units and the limited partner interests represented thereby have been duly authorized by the Partnership pursuant to the Partnership Agreement and, when issued and delivered against payment therefor in accordance with the terms of this Agreement, will be validly issued, fully paid (to the extent required by applicable Law and the Partnership Agreement) and non-assessable (except as such non-assessability may be affected by Sections 17-303, 17-607 and 17-804 of the Delaware LP Act) and will be free and clear of all Liens and restrictions on transfer other than those restrictions on transfer in the Partnership Agreement and applicable state and federal securities Laws and other such Liens as are created by the Underwriters;
(vii) the Firm Units have been or will be, as the case may be, issued in compliance with all applicable rules of the Primary Stock Exchange. Prior to the closing of the sale of the Firm Units, the Partnership will complete its additional listing application to the Primary Stock Exchange with respect to the Units and such Units will be duly listed and admitted and authorized for trading, subject to official notice of issuance;
(viii) the Partnership’s currently outstanding Common Units are listed on the Primary Stock Exchange and the Partnership has not received any notice of delisting;
(ix) the Firm Units shall have those rights, preferences, privileges and restrictions governing the Common Units as set forth in the Prospectus.
1.5 No consentPartnership Agreement. A true and correct copy of the Partnership Agreement, approvalas amended through the date hereof, authorization or other order of any governmental authority is required in connection with the execution or delivery has been filed by the Partnership of this Agreement or with the issuance and sale by the Partnership of the UnitsCommission on January 3, except such 2011, as may be required under the Securities Act or applicable state securities laws.
1.6 There are no actions, suits or proceedings pending or Exhibit 5.1 to the knowledge of the Partnership, threatened against the Partnership at law or in equity or before or by any federal or state commission, regulatory body or administrative agency or other governmental body, domestic or foreign, which will have a material adverse effect ’s Current Report on the business or property of the Partnership.
1.7 The execution and delivery of this Agreement, the consummation of the transactions herein contemplated and compliance with the terms of this Agreement by the Partnership will not conflict with or constitute a default under any charter, bylaw, indenture, mortgage, deed of trust, lease, rule, regulation, writ, injunction or decree of any government, governmental instrumentality or court, domestic or foreign, having jurisdiction over the Partnership, except to the extent that the enforceability of the indemnity and/or contribution provisions contained in Section 4 of this Agreement may be limited under applicable securities laws.
1.8 The Partnership has full legal right, power and authority to enter into this Agreement and to perform the transactions contemplated hereby, except to the extent that the enforceability of the indemnity and/or contribution provisions contained in Section 4 of this Agreement may be limited under applicable securities laws.
1.9 At the time of the issuance of the Units, the Units will have been duly authorized and validly issued, and upon payment therefor, will be fully paid and nonassessable and will conform to the description thereof contained in the Prospectus, subject to the requirement that the limited partners do not participate in the management or control of the business of the Partnership.Form 8-K.
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES OF THE PARTNERSHIP. The Each of the Partnership and the General Partner (together, the “Partnership Parties”) represents and warrants to, and agrees with, each of the Underwriters that as of the date hereof and as of the Delivery Date referred to in Section 2 hereof (unless otherwise noted below):
(a) No order preventing or suspending the Dealer Manager use of the Preliminary Prospectus or Final Prospectus has been issued by the Commission, and each dealer the Preliminary Prospectus and the Final Prospectus, at the time of filing thereof, complied in all material respects with whom the Dealer Manager has entered into Securities Act.
(b) The Disclosure Package, at the Applicable Time, did not contain any untrue statement of a material fact or will enter into omit to state a Selected Dealer Agreement material fact necessary in order to make the statements therein, in the form attached to this Agreement as Exhibit A (said dealers being hereinafter called light of the "Dealers") that:
1.1 A registration statement circumstances under which they were made, not misleading; provided that the Partnership makes no representation and warranty with respect to the Partnership has been prepared by any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Partnership in accordance with applicable requirements writing by such Underwriter through the Representatives expressly for use therein, as specified in Section 11 hereof.
(c) The Partnership (including their respective agents and representatives, other than the Underwriters in their capacity as such) have not prepared, made, used, authorized, approved or referred to, and will not prepare, make, use, authorize, approve or refer to, any “written communication” (as defined in Rule 405 under the Securities Act) (other than the Preliminary Prospectus, the Term Sheet (as defined below), the Final Prospectus, any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act and any other document listed on Schedule II) that constitutes an offer to sell or solicitation of 1933an offer to buy any of the Offered Units (each such communication by the Partnership, an “Issuer Free Writing Prospectus”) without the prior consent of the Underwriters; and any such Issuer Free Writing Prospectus the use of which has been previously consented to by the Underwriters is set forth substantially in form and substance as amended attached hereto on Schedule III. Each such Issuer Free Writing Prospectus, including the final term sheet prepared and filed pursuant to Section 4(p) (the "“Term Sheet”), complied in all material respects with the Securities Act"), and the applicable rules and regulations (the "Rules and Regulations") of the Securities and Exchange Commission (the "SEC") promulgated thereunder, covering the Units. Such registration statement, which includes a preliminary prospectus, was initially filed with the SEC on or about September 27, 2002. Copies of such registration statement and each amendment thereto have has been or will be delivered (within the time period specified in Rule 433) filed in accordance with the Securities Act (to the Dealer Manager. extent required thereby), and, when taken together with the Preliminary Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, did not at the Applicable Time, and when taken together with the Final Prospectus at the Delivery Date (The registration as defined below) will not, contain any untrue statement and prospectus contained 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 that the Partnership makes no representation and warranty with respect to any statements or omissions made in each such Issuer Free Writing Prospectus in reliance upon and in conformity with information relating to any Underwriter furnished to the Partnership in writing by such Underwriter through the Representatives expressly for use in such Issuer Free Writing Prospectus or any amendment or supplement thereto.
(d) The Registration Statement is an “automatic shelf registration statement” as finally amended defined under Rule 405 of the Securities Act that has been filed with the Commission not earlier than three years prior to the date hereof; and revised at no notice of objection of the Commission to the use of such Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act has been received by the Partnership. No order suspending the effectiveness of the Registration Statement has been issued by the Commission and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Partnership or related to the offering of the Offered Units has been initiated or threatened by the Commission; as of the effective date of the registration statement, are respectively hereinafter referred to as the "Registration Statement" and the "Prospectus," except that if the Prospectus first filed by the Partnership pursuant to Rule 424(b) under the Securities Act shall differ from the Prospectus, the term "Prospectus" shall also include the Prospectus filed pursuant to Rule 424(b).)
1.2 The Partnership has been duly and validly organized and formed as a limited partnership under the laws of the state of Texas, with the power and authority to conduct its business as described in the Prospectus.
1.3 The Registration Statement and Prospectus comply complied in all material respects with the Securities Act and the Rules and Regulations and do did not contain any untrue statements statement of a material facts 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; providedand as of the date of the Final Prospectus and any amendment or supplement thereto and as of the Delivery Date, howeverthe Final Prospectus will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the foregoing provisions of this Section 1.3 will not extend Partnership makes no representation and warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Partnership in writing by such statements contained Underwriter through the Representatives expressly for use in or omitted from the Registration Statement and the Final Prospectus and any amendment or supplement thereto.
(e) The documents incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus as are primarily within conformed, when such documents were filed with the knowledge Commission, in all material respects to the requirements of the Dealer Manager or any Exchange Act and the rules and regulations of the Dealers Commission thereunder, and none of such documents, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and any further documents so filed and incorporated by reference in the Registration Statement, Disclosure Package or Final Prospectus, when such documents are based upon information furnished by filed with the Dealer Manager Commission, will conform in writing all material respects to the Partnership specifically for inclusion thereinrequirements of the Exchange Act and the rules and regulations of the Commission thereunder.
1.4 (f) The Partnership intends to use has been duly formed and is validly existing as a limited partnership in good standing under the funds received from the sale laws of the Units State of Delaware. The Partnership is duly registered or qualified to do business as set forth a foreign business organization, and is in good standing under the laws of each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such registration or qualification, except where the failure to so register or qualify or be in good standing would not, in the Prospectus.
1.5 No consentaggregate, approval, authorization or other order of any governmental authority is required in connection with the execution or delivery by the Partnership of this Agreement or the issuance and sale by the Partnership of the Units, except such as may reasonably be required under the Securities Act or applicable state securities laws.
1.6 There are no actions, suits or proceedings pending or expected to the knowledge of the Partnership, threatened against the Partnership at law or in equity or before or by any federal or state commission, regulatory body or administrative agency or other governmental body, domestic or foreign, which will have a Material Adverse Effect. “Material Adverse Effect” shall mean a material adverse effect on the condition (financial or otherwise), earnings, business or property properties, of the Partnership.
1.7 The execution Partnership and delivery of this Agreementits subsidiaries, the consummation of the taken as a whole, whether or not arising from transactions herein contemplated and compliance with the terms of this Agreement by the Partnership will not conflict with or constitute a default under any charter, bylaw, indenture, mortgage, deed of trust, lease, rule, regulation, writ, injunction or decree of any government, governmental instrumentality or court, domestic or foreign, having jurisdiction over the Partnership, except to the extent that the enforceability of the indemnity and/or contribution provisions contained in Section 4 of this Agreement may be limited under applicable securities laws.
1.8 The Partnership has full legal right, power and authority to enter into this Agreement and to perform the transactions contemplated hereby, except to the extent that the enforceability of the indemnity and/or contribution provisions contained in Section 4 of this Agreement may be limited under applicable securities laws.
1.9 At the time of the issuance of the Units, the Units will have been duly authorized and validly issued, and upon payment therefor, will be fully paid and nonassessable and will conform to the description thereof contained in the Prospectus, subject to the requirement that the limited partners do not participate in the management or control ordinary course of the business of the Partnershipbusiness.
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES OF THE PARTNERSHIP. The Partnership represents and warrants to the Dealer and agrees with each Manager and each dealer with whom the Dealer Manager has entered into or will enter into a Selected Dealer Agreement in the form attached to this Agreement as Exhibit A (said dealers being hereinafter called the "Dealers") that:
1.1 A (a) The Partnership meets the requirements for use of Form S-3 under the Act and has prepared and filed with the Commission a registration statement on Form S-3 (File No. 333-183388), including a form of prospectus, in conformity with respect to the Partnership has been prepared by the Partnership in accordance with applicable requirements of the Securities Act of 1933, as amended (the "Securities “Act"”), and the applicable rules and regulations thereunder (the "“Rules and Regulations"”) of the Securities and Exchange Commission (the "SEC"“Commission”) promulgated thereunder, covering for registration under the Act of the offering and sale of the Units. Such registration statement, which includes a preliminary prospectus, was initially filed with the SEC on or about September 27, 2002. Copies of and such registration statement has become effective. The Registration Statement (as defined below) contains certain information concerning the offering and each amendment thereto have sale of the Common Units, including the Units, and contains additional information concerning the Partnership and its business; the Commission has not issued an order preventing or suspending the use of the Basic Prospectus (as defined below), the Prospectus Supplement (as defined below) or the Prospectus (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 or will be delivered instituted or, to the Dealer ManagerPartnership’s knowledge, threatened by the Commission. (The registration statement and prospectus contained thereinExcept where the context otherwise requires, “Registration Statement,” as finally amended and revised at the effective date of used herein, means the registration statement, are respectively hereinafter referred 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(f) or (g) of this Agreement, including (1) all 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 "Registration Statement" and the "Prospectus," except that if the Prospectus first filed by the Partnership Commission pursuant to Rule 424(b) under the Securities Act shall differ from 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, “Effective Date,” means each date and time that the Registration Statement and any post-effective amendment or amendment thereto became or becomes effective. Except where the context otherwise requires, “Basic Prospectus,” as used herein, means the term "Prospectus" shall also include prospectus filed as part of each Registration Statement, 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).)
1.2 The Partnership has been duly and validly organized and formed as a limited partnership ) under the laws of Act on or before the state of Texas, with second business day after the power and authority to conduct its business as described in the Prospectus.
1.3 The Registration Statement and Prospectus comply with the Securities Act and the Rules and Regulations and do not contain any untrue statements of material facts date hereof (or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading; provided, however, that the foregoing provisions of this Section 1.3 will not extend to such statements contained in or omitted from the Registration Statement or Prospectus as are primarily within the knowledge of the Dealer Manager or any of the Dealers and are based upon information furnished by the Dealer Manager in writing to the Partnership specifically for inclusion therein.
1.4 The Partnership intends to use the funds received from the sale of the Units as set forth in the Prospectus.
1.5 No consent, approval, authorization or other order of any governmental authority is required in connection with the execution or delivery by the Partnership of this Agreement or the issuance and sale by the Partnership of the Units, except such earlier time as may be required under the Securities Act or applicable state securities laws.
1.6 There are no actionsAct), suits or proceedings pending or to in the knowledge of the Partnership, threatened against the Partnership at law or in equity or before or by any federal or state commission, regulatory body or administrative agency or other governmental body, domestic or foreign, which will have a material adverse effect on the business or property of the Partnership.
1.7 The execution and delivery of this Agreement, the consummation of the transactions herein contemplated and compliance with the terms of this Agreement form furnished by the Partnership will not conflict with or constitute a default under any charter, bylaw, indenture, mortgage, deed of trust, lease, rule, regulation, writ, injunction or decree of any government, governmental instrumentality or court, domestic or foreign, having jurisdiction over the Partnership, except to the extent that Managers in connection with the enforceability of the indemnity and/or contribution provisions contained in Section 4 of this Agreement may be limited under applicable securities laws.
1.8 The Partnership has full legal right, power and authority to enter into this Agreement and to perform the transactions contemplated hereby, except to the extent that the enforceability of the indemnity and/or contribution provisions contained in Section 4 of this Agreement may be limited under applicable securities laws.
1.9 At the time of the issuance offering of the Units. Except where the context otherwise requires, “Prospectus,” as used herein, means the Units will have been duly authorized and validly issued, and upon payment therefor, will be fully paid and nonassessable and will conform Prospectus Supplement together with the Basic Prospectus attached to or used with the description thereof contained in the Prospectus, subject to the requirement that the limited partners do not participate in the management or control of the business of the Partnership.Prospectus 2
Appears in 1 contract
Samples: Equity Distribution Agreement (Energy Transfer Partners, L.P.)
REPRESENTATIONS AND WARRANTIES OF THE PARTNERSHIP. The Partnership represents and warrants to to, and agrees with, the Dealer Manager and each dealer with whom the Dealer Manager has entered into or will enter into a Selected Dealer Agreement in the form attached to this Agreement as Exhibit A (said dealers being hereinafter called the "Dealers") Holder that:
1.1 A (a) The Partnership has reasonable grounds to believe that it meets all the requirements for the filing of a registration statement on Form S-3 with respect the Commission. The Resale Registration Statement, at the time it becomes effective, and the final prospectus contained therein, will comply, and when any post-effective amendment to the Partnership has been prepared by Resale Registration Statement becomes effective or any supplement to such prospectus is filed with the Partnership Commission, the Registration Statement, the final prospectus and any such amendment or supplement, respectively, will comply, in accordance all material respects with the applicable requirements of the Securities Act and the applicable rules adopted by the Commission thereunder; the documents incorporated, or deemed to be incorporated, into the Resale Registration Statement or the related prospectus by reference pursuant to the requirements of 1933, as amended (Item 12 of Form S-3 under the "Securities Act"), when they were or are filed with the Commission, conformed or will conform as of their respective dates in all material respects with the applicable requirements of the Exchange Act and the applicable rules and regulations (adopted by the "Rules Commission thereunder; and Regulations") each part of the Securities Resale Registration Statement and Exchange Commission (any amendment thereto, at the "SEC") promulgated thereundertime it became effective, covering and the Units. Such registration statementfinal prospectus and any amendment or supplement thereto, which includes a preliminary prospectus, at the time it was initially filed with the SEC on or about September 27, 2002. Copies of such registration statement and each amendment thereto have been or will be delivered to the Dealer Manager. (The registration statement and prospectus contained therein, as finally amended and revised at the effective date of the registration statement, are respectively hereinafter referred to as the "Registration Statement" and the "Prospectus," except that if the Prospectus first filed by the Partnership Commission pursuant to Rule 424(b) 424 under the Securities Act shall differ Act, will not contain an untrue statement of a material fact or omit to a state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and at all times at and subsequent to the time when the Resale Registration Statement has been declared effective under the Securities Act, other than (i) from the Prospectus, the term "Prospectus" shall also include the Prospectus filed such time as a notice has been given to USD pursuant to Rule 424(b).)
1.2 The Section 2.2(a)(viii) until such time as the Partnership has been duly furnishes an amended or supplemented prospectus pursuant to Section 2.2(a)(viii) or such earlier time as the Partnership provides notice that offers and validly organized and formed as a limited partnership under sales pursuant to the laws Resale Registration Statement may continue, or (ii) during any period when the Holders are to suspend use of the state of Texas, with prospectus or prospectus supplement related to the power and authority to conduct its business as described in the Prospectus.
1.3 The Resale Registration Statement as provided in Section 2.4(a), each prospectus contained in or prepared in connection with any Resale Registration Statement, and Prospectus comply with each prospectus furnished pursuant to Section 2.2(a)(iv), as then amended or supplemented, will conform in all material respects to the applicable requirements of the Securities Act and the Rules and Regulations and do will not contain any an untrue statements statement of a material facts fact or omit to state any a material fact required to be stated therein or necessary in order to make the statements therein therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the foregoing provisions of this representation and warranty in this Section 1.3 will 4.1(a) shall not extend apply to such any statements contained or omissions made in or omitted from the Registration Statement or Prospectus as are primarily within the knowledge of the Dealer Manager or any of the Dealers reliance upon and are based upon in conformity with information furnished by the Dealer Manager in writing to the Partnership specifically by or on behalf of any Holder expressly for inclusion thereinuse therein in any such Resale Registration Statement, prospectus or supplement.
1.4 (b) The Partnership intends to use the funds received from the sale of the Units as set forth in the Prospectus.
1.5 No consentexecution, approval, authorization or other order of any governmental authority is required in connection with the execution or delivery by the Partnership of this Agreement or the issuance and sale by the Partnership of the Units, except such as may be required under the Securities Act or applicable state securities laws.
1.6 There are no actions, suits or proceedings pending or to the knowledge of the Partnership, threatened against the Partnership at law or in equity or before or by any federal or state commission, regulatory body or administrative agency or other governmental body, domestic or foreign, which will have a material adverse effect on the business or property of the Partnership.
1.7 The execution and delivery of this Agreement, the consummation of the transactions herein contemplated and compliance with the terms performance of this Agreement by the Partnership will not conflict with (i) result in a breach or violation of any of the terms and provisions of the limited partnership agreement of the Partnership, (ii) constitute a breach or default under any chartermaterial agreement or contract to which the Partnership is a party, bylawexcept where any such foregoing occurrence will not prevent the consummation of the transactions contemplated herein or would not have a material adverse effect on the Partnership and its subsidiaries taken as a whole, indentureor (iii) result in a violation of any provision of law, mortgage, deed of trust, leasestatute, rule, regulation, writor any existing applicable decree, injunction judgment or decree order of any government, court or governmental instrumentality agency or court, domestic or foreign, body having jurisdiction over the Partnership, except to the extent that the enforceability of the indemnity and/or contribution provisions contained in Section 4 of this Agreement may be limited under applicable securities laws.
1.8 The Partnership (c) This Agreement has full legal right, power and authority to enter into this Agreement and to perform the transactions contemplated hereby, except to the extent that the enforceability of the indemnity and/or contribution provisions contained in Section 4 of this Agreement may be limited under applicable securities laws.
1.9 At the time of the issuance of the Units, the Units will have been duly authorized authorized, executed and validly issued, and upon payment therefor, will be fully paid and nonassessable and will conform to the description thereof contained in the Prospectus, subject to the requirement that the limited partners do not participate in the management or control of the business of delivered by the Partnership.
Appears in 1 contract
Samples: Registration Rights Agreement (Kinder Morgan Energy Partners L P)
REPRESENTATIONS AND WARRANTIES OF THE PARTNERSHIP. The Partnership represents and warrants to and agrees with each of the Dealer Manager and each dealer with whom the Dealer Manager has entered into or will enter into a Selected Dealer Agreement in the form attached to this Agreement as Exhibit A (said dealers being hereinafter called the "Dealers") Underwriters that:
1.1 A registration statement (a) the Registration Statement has heretofore become effective under the Act or, with respect to any registration statement to be filed to register the Partnership offer and sale of Units pursuant to Rule 462(b) under the Act, will be filed with the Commission and become effective under the Act no later than 10:00 P.M., New York City time, on the date of determination of the public offering price for the Units; no stop order of the Commission preventing or suspending the use of the Basic Prospectus, any Preliminary Prospectus, the Prospectus Supplement, the Prospectus or any Permitted Free Writing Prospectus, or the effectiveness of the Registration Statement, has been prepared issued, and no proceedings for such purpose have been instituted or, to the Partnership’s knowledge, are contemplated by the Partnership Commission;
(b) the Registration Statement conformed when it became effective, conforms as of the date hereof and, as amended or supplemented, at the time of purchase and each additional time of purchase, if any, will conform, in accordance all material respects, with applicable the requirements of the Securities Act Act; the conditions to the use of 1933, Form S-3 in connection with the offering and sale of the Units as amended (contemplated hereby have been satisfied; the "Securities Act")Registration Statement meets, and the applicable rules offering and regulations (the "Rules and Regulations") sale of the Securities and Exchange Commission (Units as contemplated hereby conforms with, the "SEC") promulgated thereunder, covering requirements of Rule 415 under the Units. Such registration statement, which includes a preliminary prospectus, was initially filed with Act; the SEC on or about September 27, 2002. Copies of such registration statement and each amendment thereto have been or will be delivered to the Dealer Manager. (The registration statement and prospectus contained thereinRegistration Statement did not, as finally amended and revised at the effective date of the registration statementEffective Time, are respectively hereinafter referred to as the "Registration Statement" and the "Prospectus," except that if the Prospectus first filed by the Partnership pursuant to Rule 424(b) under the Securities Act shall differ from the Prospectus, the term "Prospectus" shall also include the Prospectus filed pursuant to Rule 424(b).)
1.2 The Partnership has been duly and validly organized and formed as contain an untrue statement of a limited partnership under the laws of the state of Texas, with the power and authority to conduct its business as described in the Prospectus.
1.3 The Registration Statement and Prospectus comply with the Securities Act and the Rules and Regulations and do not contain any untrue statements of material facts fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein not misleading; each Preliminary Prospectus conformed or will conform in all material respects with the requirements from the Act as of the date hereof, at the time it was filed with the Commission, as of the date of such Preliminary Prospectus and at the time of purchase and each additional time of purchase, if any; the Disclosure Package did not, as of the Applicable Time, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein therein, in the light of the circumstances under which they were made, not misleading; the Basic Prospectus conformed or will conform, as of its date and at the time of purchase and each additional time of purchase, if any, in all material respects, with the requirements of the Act; each of the Prospectus Supplement and the Prospectus will conform, as of the date that it is filed with the Commission, the date of the Prospectus Supplement, the time of purchase and each additional time of purchase, if any, in all material respects, with the requirements of the Act (in the case of the Prospectus, including, without limitation, Section 10(a) of the Act); as of the date of the Prospectus Supplement, and at the time of purchase and the additional time of purchase, if any, the Prospectus Supplement or the Prospectus, as then amended or supplemented, did not or will not 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; as of the date of such Permitted Free Writing Prospectus and at the time of purchase each Permitted Free Writing Prospectus when taken together as a whole with the Disclosure Package did not or will not 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; each electronic road show when taken together as a whole with the Disclosure Package, does not, as of the date hereof, contain any untrue statement of a material fact or omit to state any material fact necessary in or to make the statements therein, in the light of the circumstances under which they were made, not misleading; each Permitted Free Writing prospectus does not include any information that conflicts with the information contained in the Registration Statement or the Prospectus; each Incorporated Document, at the time such document was filed with the Commission or at the time such document became effective, as applicable, conformed, in all material respects, with the requirements of the Exchange Act and did not 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; provided, however, that the foregoing provisions Partnership makes no representation or warranty in this Section 3(b) with respect to any statement contained in the Registration Statement, any Preliminary Prospectus, the Prospectus, any Permitted Free Writing Prospectus or any Incorporated Document in reliance upon and in conformity with information concerning an Underwriter and furnished in writing by or on behalf of such Underwriter through the Representatives to the Partnership expressly for use in the Registration Statement, such Preliminary Prospectus, the Prospectus, such Permitted Free Writing Prospectus or Incorporated Document;
(c) prior to the execution of this Agreement, the Partnership has not, directly or indirectly, offered or sold any 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 offer or sale of the Units, in each case other than the Preliminary Prospectus or the Permitted Free Writing Prospectus, if any; the Partnership has not, directly or indirectly, prepared, used or referred to any Permitted Free Writing Prospectus except in compliance with Rules 164 and 433 under the Act; the Partnership is not an “ineligible issuer” (as defined in Rule 405 under the Act) as of the eligibility determination date for purposes of Rules 164 and 433 under the Act with respect to the offering of the Units contemplated by the Registration Statement; the parties hereto agree and understand that the content of any and all “road shows” (as defined in Rule 433 under the Act) related to the offering of the Units contemplated hereby is solely the property of the Partnership;
(d) in accordance with Rule 5110(b)(7)(C)(i) of the Financial Industry Regulatory Authority, Inc. (“FINRA”), the Units are registered with the Commission on Forms S-3 under the Act pursuant to the standards for such Form S-3 in effect prior to October 21, 1992;
(e) (i) as of the date of this Agreement, the issued and outstanding limited partner interests of the Partnership consist of 82,900,988 Common Units, 39,997 Common Units—Class B (“Class B Units”) and 1,738,233 Waiver Units—Class 4 (“Waiver Units”). The only issued and outstanding general partner interests of the Partnership are the interests of Genesis Energy, LLC, a Delaware limited liability company (the “General Partner”), described in the Partnership Agreement. All of the outstanding Common Units, Class B Units and Waiver Units have been duly authorized and validly issued in accordance with applicable Law and the Partnership Agreement and are fully paid (to the extent required by applicable Law and under the Partnership Agreement) and non-assessable (except as such non-assessability may be affected by Sections 17-303, 17-607 and 17-804 of the Delaware Revised Uniform Limited Partnership Act (the “Delaware LP Act”));
(ii) other than the Genesis Energy, Inc. 2007 Long-Term Incentive Plan and the Genesis Energy, L.P. 2010 Long-Term Incentive Plan, the Partnership has no equity compensation plans that contemplate the issuance of Common Units or any other class of equity (or securities convertible into or exchangeable for Common Units or any other class of equity). The Partnership has no outstanding indebtedness having the right to vote (or convertible into or exchangeable for securities having the right to vote) on any matters on which the unitholders of the Partnership (within the meaning of the Partnership Agreement, the “Unitholders”) may vote. Except as set forth in the first sentence of this Section 1.3 will not extend to such statements contained 3(e)(ii) or as disclosed in the Disclosure Package, there are no outstanding or omitted from authorized (A) options, warrants, preemptive rights, subscriptions, calls or other rights, convertible securities, agreements, claims or commitments of any character obligating the Registration Statement or Prospectus as are primarily within the knowledge of the Dealer Manager Partnership or any of its Subsidiaries to issue, transfer or sell any partnership interests or other equity interests in the Dealers Partnership or any of its Subsidiaries or securities convertible into or exchangeable for such partnership interests or other equity interests, (B) obligations of the Partnership or any of its Subsidiaries to repurchase, redeem or otherwise acquire any partnership interests or other equity interests in the Partnership or any of its Subsidiaries or any such securities or agreements listed in clause (A) of this section or (C) voting trusts or similar agreements to which the Partnership or any of its Subsidiaries is a party with respect to the voting of the equity interests of the Partnership or any of its Subsidiaries;
(iii) the Partnership, directly or indirectly, owns (A) 99.99% of the partnership interests in Genesis Crude Oil, L.P., a Delaware limited partnership (the “Operating Partnership”) (and are based upon information furnished by the Dealer Manager General Partner owns 0.01% of the partnership interests in writing the Operating Partnership), (B) 100% of the limited partnership interests in each of Genesis Pipeline Texas, L.P., a Delaware limited partnership, Genesis Pipeline USA, L.P., a Delaware limited partnership, Genesis CO2 Pipeline, L.P., a Delaware limited partnership, Genesis Natural Gas Pipeline, L.P., a Delaware limited partnership, and Genesis Syngas Investments, L.P., a Delaware limited partnership (the “Limited Partnership Subsidiaries”), (C) 90.91% of the equity interests in Thunder Basin Holdings, LLC, a Delaware limited liability company (which owns 100% of the equity interests in each of Antelope Refining, LLC, a Delaware limited liability company, and Thunder Basin Pipeline, LLC, a Delaware limited liability company), (D) 100% of the equity interests in each other Subsidiary not listed in clauses (A), (B) or (C) of this Section 3(e)(iii), (E) 50% of the partnership interests in T&P Syngas Supply Company, a Delaware general partnership (“T&P Syngas”), (F) 50% of the outstanding limited liability company interests of Sandhill Group, LLC, a Mississippi limited liability company (“Sandhill”), (G) 10% or less of the limited liability company interest in Xxxxxxxx Hydrogen Products, LLC, a Delaware limited liability company (“Xxxxxxxx”), (H) 50% of the equity interests in Cameron Highway Oil Pipeline Company, a Delaware partnership (“Cameron”), (I) 50% of the equity interests in Southeast Xxxxxxxx Canyon Pipeline Company, L.L.C., a Delaware limited liability company (“Sekco”), (J) 28% of the equity interests in Poseidon Oil Pipeline Company, L.L.C., a Delaware limited liability company (“Poseidon”), and (K) 29% of the equity interests in Odyssey Pipeline L.L.C., a Delaware limited liability company (“Odyssey”), in each case free and clear of any Liens (except for such restrictions as may exist under applicable Law and except for such Liens as may be imposed under the Partnership’s or the Partnership’s Subsidiaries’ credit facilities filed as exhibits to the Partnership specifically SEC Documents (defined below)), and all such ownership interests have been duly authorized and validly issued and are fully paid (to the extent required by applicable Law and the organizational documents of the Partnership’s Subsidiaries, T&P Syngas, Sandhill, Faustina, Cameron, Sekco, Poseidon and Odyssey, as applicable) and non-assessable (except as non-assessability may be affected by the Delaware Revised Uniform Partnership Act, Sections 17-303, 17-607 and 17-804 of the Delaware LP Act, Sections 18-607 and 18-804 of the Delaware Limited Liability Company Act (the “Delaware LLC Act”) or any analogous statue in the jurisdiction of formation of any Subsidiary and Sandhill, or the organizational documents of the Partnership’s Subsidiaries, T&P Syngas, Sandhill, Faustina, Cameron, Sekco, Poseidon and Odyssey, as applicable) and free of preemptive rights, with no personal liability attaching to the ownership thereof, and except for inclusion therein.T&P Syngas, Sandhill, Faustina, Cameron, Sekco, Poseidon and Odyssey neither the Partnership nor any of its Subsidiaries owns directly or indirectly any shares of capital stock or other securities of, or interest in, any other person or entity (other than another Subsidiary), or is obligated to make any capital contribution to or other investment in any other person or entity. Schedule D attached hereto contains a complete and accurate list of all of the Partnership’s “significant subsidiaries” (as defined in Rule 405 under the Act);
1.4 The (iv) the General Partner is the sole general partner of the Partnership intends and each Limited Partnership Subsidiary, with a non-economic general partner interest in the Partnership and a non-economic general partner interest in each Limited Partnership Subsidiary. Such general partner interests have been duly authorized and validly issued in accordance with applicable Law, the Partnership Agreement and the partnership agreements of each Limited Partnership Subsidiary and are fully paid (to use the funds received from extent required by applicable Law and under the Partnership Agreement and the partnership agreements of each Limited Partnership Subsidiary) and non assessable (except as such non assessability may be affected by Sections 17-303, 17-607 and 17-804 of the Delaware LP Act);
(v) the offer and sale of the Units and the limited partner interests represented thereby have been duly authorized by the Partnership pursuant to the Partnership Agreement and, when issued and delivered against payment therefor in accordance with the terms of this Agreement, will be validly issued, fully paid (to the extent required by applicable Law and the Partnership Agreement) and non-assessable (except as such non-assessability may be affected by Sections 17-303, 17-607 and 17-804 of the Delaware LP Act) and will be free and clear of all Liens and restrictions on transfer other than those restrictions on transfer in the Partnership Agreement and applicable state and federal securities Laws and other such Liens as are created by the Underwriters;
(vii) the Firm Units have been or will be, as the case may be, issued in compliance with all applicable rules of the Primary Stock Exchange. Prior to the closing of the sale of the Firm Units, the Partnership will complete its additional listing application to the Primary Stock Exchange with respect to the Units and such Units will be duly listed and admitted and authorized for trading, subject to official notice of issuance;
(viii) the Partnership’s currently outstanding Common Units are listed on the Primary Stock Exchange and the Partnership has not received any notice of delisting;
(ix) the Firm Units shall have those rights, preferences, privileges and restrictions governing the Common Units as set forth in the Prospectus.
1.5 No consentPartnership Agreement. A true and correct copy of the Partnership Agreement, approvalas amended through the date hereof, authorization or other order of any governmental authority is required in connection with the execution or delivery has been filed by the Partnership of this Agreement or with the issuance and sale by the Partnership of the UnitsCommission on January 3, except such 2011, as may be required under the Securities Act or applicable state securities laws.
1.6 There are no actions, suits or proceedings pending or Exhibit 3.1 to the knowledge of the Partnership, threatened against the Partnership at law or in equity or before or by any federal or state commission, regulatory body or administrative agency or other governmental body, domestic or foreign, which will have a material adverse effect ’s Current Report on the business or property of the Partnership.
1.7 The execution and delivery of this Agreement, the consummation of the transactions herein contemplated and compliance with the terms of this Agreement by the Partnership will not conflict with or constitute a default under any charter, bylaw, indenture, mortgage, deed of trust, lease, rule, regulation, writ, injunction or decree of any government, governmental instrumentality or court, domestic or foreign, having jurisdiction over the Partnership, except to the extent that the enforceability of the indemnity and/or contribution provisions contained in Section 4 of this Agreement may be limited under applicable securities laws.
1.8 The Partnership has full legal right, power and authority to enter into this Agreement and to perform the transactions contemplated hereby, except to the extent that the enforceability of the indemnity and/or contribution provisions contained in Section 4 of this Agreement may be limited under applicable securities laws.
1.9 At the time of the issuance of the Units, the Units will have been duly authorized and validly issued, and upon payment therefor, will be fully paid and nonassessable and will conform to the description thereof contained in the Prospectus, subject to the requirement that the limited partners do not participate in the management or control of the business of the Partnership.Form 8-K.
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES OF THE PARTNERSHIP. The Partnership represents and warrants to and agrees with each of the Dealer Manager and each dealer with whom the Dealer Manager has entered into or will enter into a Selected Dealer Agreement in the form attached to this Agreement as Exhibit A (said dealers being hereinafter called the "Dealers") Underwriters that:
1.1 A registration statement (a) each Registration Statement has heretofore become effective under the Act or, with respect to any registration statement to be filed to register the Partnership offer and sale of Units pursuant to Rule 462(b) under the Act, will be filed with the Commission and become effective under the Act no later than 10:00 P.M., New York City time, on the date of determination of the public offering price for the Units; no stop order of the Commission preventing or suspending the use of any Basic Prospectus, any Preliminary Prospectus, the Prospectus Supplement, the Prospectus or any Permitted Free Writing Prospectus, or the effectiveness of the Registration Statements, has been prepared issued, and no proceedings for such purpose have been instituted or, to the Partnership’s knowledge, are contemplated by the Partnership Commission;
(b) each Registration Statement conformed when it became effective, conforms as of the date hereof and, as amended or supplemented, at the time of purchase and each additional time of purchase, if any, will conform, in accordance all material respects, with applicable the requirements of the Securities Act Act; the conditions to the use of 1933, Form S-3 in connection with the offering and sale of the Units as amended (the "Securities Act")contemplated hereby have been satisfied; each Registration Statement meets, and the applicable rules offering and regulations (the "Rules and Regulations") sale of the Securities and Exchange Commission (Units as contemplated hereby conforms with, the "SEC") promulgated thereunder, covering requirements of Rule 415 under the Units. Such registration statement, which includes a preliminary prospectus, was initially filed with the SEC on or about September 27, 2002. Copies of such registration statement and Act; each amendment thereto have been or will be delivered to the Dealer Manager. (The registration statement and prospectus contained thereinRegistration Statement did not, as finally amended and revised at the effective date of the registration statementEffective Time, are respectively hereinafter referred to as the "Registration Statement" and the "Prospectus," except that if the Prospectus first filed by the Partnership pursuant to Rule 424(b) under the Securities Act shall differ from the Prospectus, the term "Prospectus" shall also include the Prospectus filed pursuant to Rule 424(b).)
1.2 The Partnership has been duly and validly organized and formed as contain an untrue statement of a limited partnership under the laws of the state of Texas, with the power and authority to conduct its business as described in the Prospectus.
1.3 The Registration Statement and Prospectus comply with the Securities Act and the Rules and Regulations and do not contain any untrue statements of material facts fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein not misleading; each Preliminary Prospectus conformed or will conform in all material respects with the requirements from the Act as of the date hereof, at the time it was filed with the Commission, as of the date of such Preliminary Prospectus and at the time of purchase and each additional time of purchase, if any; the Disclosure Package did not, as of the Applicable Time, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein therein, in the light of the circumstances under which they were made, not misleading; each Basic Prospectus conformed or will conform, as of its date and at the time of purchase and each additional time of purchase, if any, in all material respects, with the requirements of the Act; each of the Prospectus Supplement and the Prospectus will conform, as of the date that it is filed with the Commission, the date of the Prospectus Supplement, the time of purchase and each additional time of purchase, if any, in all material respects, with the requirements of the Act (in the case of the Prospectus, including, without limitation, Section 10(a) of the Act); as of the date of the Prospectus Supplement, and at the time of purchase and the additional time of purchase, if any, the Prospectus Supplement or the Prospectus, as then amended or supplemented, did not or will not 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; as of the date of such Permitted Free Writing Prospectus and at the time of purchase each Permitted Free Writing Prospectus when taken together as a whole with the Disclosure Package did not or will not 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; each electronic road show when taken together as a whole with the Disclosure Package, does not, as of the date hereof, contain any untrue statement of a material fact or omit to state any material fact necessary in or to make the statements therein, in the light of the circumstances under which they were made, not misleading; each Permitted Free Writing prospectus does not include any information that conflicts with the information contained in the Registration Statements or the Prospectus; each Incorporated Document, at the time such document was filed with the Commission or at the time such document became effective, as applicable, conformed, in all material respects, with the requirements of the Exchange Act and did not 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; provided, however, that the foregoing provisions Partnership makes no representation or warranty in this Section 3(b) with respect to any statement contained in the Registration Statements, any Preliminary Prospectus, the Prospectus, any Permitted Free Writing Prospectus or any Incorporated Document in reliance upon and in conformity with information concerning an Underwriter or Selling Unitholder and furnished in writing by or on behalf of such Underwriter through the Representative or on behalf of such Selling Unitholder to the Partnership expressly for use in the Registration Statements, such Preliminary Prospectus, the Prospectus, such Permitted Free Writing Prospectus or Incorporated Document;
(c) prior to the execution of this Agreement, the Partnership has not, directly or indirectly, offered or sold any 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 offer or sale of the Units, in each case other than the Preliminary Prospectus or the Permitted Free Writing Prospectus, if any; the Partnership has not, directly or indirectly, prepared, used or referred to any Permitted Free Writing Prospectus except in compliance with Rules 164 and 433 under the Act; the Partnership is not an “ineligible issuer” (as defined in Rule 405 under the Act) as of the eligibility determination date for purposes of Rules 164 and 433 under the Act with respect to the offering of the Units contemplated by the Registration Statements; the parties hereto agree and understand that the content of any and all “road shows” (as defined in Rule 433 under the Act) related to the offering of the Units contemplated hereby is solely the property of the Partnership;
(d) in accordance with Rule 5110(b)(7)(C)(i) of the Financial Industry Regulatory Authority, Inc. (“FINRA”), the Units are registered with the Commission on Forms S-3 under the Act pursuant to the standards for such Form S-3 in effect prior to October 21, 1992;
(e) (i) as of the date of this Agreement, the issued and outstanding limited partner interests of the Partnership consist of 71,925,065 Common Units, 39,997 Common Units—Class B (“Class B Units”), 1,737,251 Waiver Units—Class 1, 1,737,251 Waiver Units—Class 2, 1,737,251 Waiver Units—Class 3 and 1,737,251 Waiver Units—Class 4 (collectively, “Waiver Units”). The only issued and outstanding general partner interests of the Partnership are the interests of Genesis Energy, LLC, a Delaware limited liability company (the “General Partner”), described in the Partnership Agreement. All of the outstanding Common Units, Class B Units and Waiver Units have been duly authorized and validly issued in accordance with applicable Law and the Partnership Agreement and are fully paid (to the extent required by applicable Law and under the Partnership Agreement) and non-assessable (except as such non-assessability may be affected by Sections 17-303, 17-607 and 17-804 of the Delaware Revised Uniform Limited Partnership Act (the “Delaware LP Act”));
(ii) other than the Genesis Energy, Inc. 2007 Long-Term Incentive Plan, the Partnership has no equity compensation plans that contemplate the issuance of Common Units or any other class of equity (or securities convertible into or exchangeable for Common Units or any other class of equity). The Partnership has no outstanding indebtedness having the right to vote (or convertible into or exchangeable for securities having the right to vote) on any matters on which the unitholders of the Partnership (within the meaning of the Partnership Agreement, the “Unitholders”) may vote. Except as set forth in the first sentence of this Section 1.3 will not extend to such statements contained 3(e)(ii) or as disclosed in the Disclosure Package, there are no outstanding or omitted from authorized (A) options, warrants, preemptive rights, subscriptions, calls or other rights, convertible securities, agreements, claims or commitments of any character obligating the Registration Statement or Prospectus as are primarily within the knowledge of the Dealer Manager Partnership or any of its Subsidiaries to issue, transfer or sell any partnership interests or other equity interests in the Dealers Partnership or any of its Subsidiaries or securities convertible into or exchangeable for such partnership interests or other equity interests, (B) obligations of the Partnership or any of its Subsidiaries to repurchase, redeem or otherwise acquire any partnership interests or other equity interests in the Partnership or any of its Subsidiaries or any such securities or agreements listed in clause (A) of this section or (C) voting trusts or similar agreements to which the Partnership or any of its Subsidiaries is a party with respect to the voting of the equity interests of the Partnership or any of its Subsidiaries;
(iii) the Partnership, directly or indirectly, owns (A) 99.99% of the partnership interests in Genesis Crude Oil, L.P., a Delaware limited partnership (the “Operating Partnership”) (and are based upon information furnished by the Dealer Manager General Partner owns 0.01% of the partnership interests in writing the Operating Partnership), (B) 100% of the limited partnership interests in each of Genesis Pipeline Texas, L.P., a Delaware limited partnership, Genesis Pipeline USA, L.P., a Delaware limited partnership, Genesis CO2 Pipeline, L.P., a Delaware limited partnership, Genesis Natural Gas Pipeline, L.P., a Delaware limited partnership, and Genesis Syngas Investments, L.P., a Delaware limited partnership (the “Limited Partnership Subsidiaries”), (C) 90.91% of the equity interests in Thunder Basin Holdings, LLC, a Delaware limited liability company (which owns 100% of the equity interests in each of Antelope Refining, LLC, a Delaware limited liability company, and Thunder Basin Pipeline, LLC, a Delaware limited liability company), (D) 100% of the equity interests in each other Subsidiary not listed in clauses (A), (B) or (C) of this Section 3(e)(iii), (E) 50% of the partnership interests in T&P Syngas Supply Company, a Delaware general partnership (“T&P Syngas”), (F) 50% of the outstanding limited liability company interests of Sandhill Group, LLC, a Mississippi limited liability company (“Sandhill”), (G) 5.7% of the limited liability company interest in Xxxxxxxx Hydrogen Products, LLC, a Delaware limited liability company (“Xxxxxxxx”), (H) 50% of the equity interests in Cameron Highway Oil Pipeline Company, a Delaware partnership (“Cameron”), (I) 50% of the equity interests in Southeast Xxxxxxxx Canyon Pipeline Company, L.L.C., a Delaware limited liability company (“Sekco”), (J) 28% of the equity interests in Poseidon Oil Pipeline Company, L.L.C., a Delaware limited liability company (“Poseidon”), and (K) 29% of the equity interests in Odyssey Pipeline L.L.C., a Delaware limited liability company (“Odyssey”), in each case free and clear of any Liens (except for such restrictions as may exist under applicable Law and except for such Liens as may be imposed under the Partnership’s or the Partnership’s Subsidiaries’ credit facilities filed as exhibits to the Partnership specifically SEC Documents (defined below), and all such ownership interests have been duly authorized and validly issued and are fully paid (to the extent required by applicable Law and the organizational documents of the Partnership’s Subsidiaries, T&P Syngas, Sandhill, Faustina, Cameron, Sekco, Poseidon and Odyssey, as applicable) and non-assessable (except as non-assessability may be affected by the Delaware Revised Uniform Partnership Act, Sections 17-303, 17-607 and 17-804 of the Delaware LP Act, Sections 18-607 and 18-804 of the Delaware Limited Liability Company Act (the “Delaware LLC Act”) or any analogous statue in the jurisdiction of formation of any Subsidiary and Xxxxxxxx, or the organizational documents of the Partnership’s Subsidiaries, T&P Syngas, Sandhill, Faustina, Cameron, Sekco, Poseidon and Odyssey, as applicable) and free of preemptive rights, with no personal liability attaching to the ownership thereof, and except for inclusion therein.T&P Syngas, Sandhill, Faustina, Cameron, Sekco, Poseidon and Odyssey neither the Partnership nor any of its Subsidiaries owns directly or indirectly any shares of capital stock or other securities of, or interest in, any other person or entity (other than another Subsidiary), or is obligated to make any capital contribution to or other investment in any other person or entity. Schedule F attached hereto contains a complete and accurate list of all of the Partnership’s “significant subsidiaries” (as defined in Rule 405 under the Act);
1.4 The (iv) the General Partner is the sole general partner of the Partnership intends and each Limited Partnership Subsidiary, with a non-economic general partner interest in the Partnership and a non-economic general partner interest in each Limited Partnership Subsidiary. Such general partner interests have been duly authorized and validly issued in accordance with applicable Law, the Partnership Agreement and the partnership agreements of each Limited Partnership Subsidiary and are fully paid (to use the funds received from extent required by applicable Law and under the Partnership Agreement and the partnership agreements of each Limited Partnership Subsidiary) and non assessable (except as such non assessability may be affected by Sections 17-303, 17-607 and 17-804 of the Delaware LP Act);
(v) the offer and sale of the Units and the limited partner interests represented thereby have been duly authorized by the Partnership pursuant to the Partnership Agreement and are validly issued, fully paid (to the extent required by applicable Law and the Partnership Agreement) and non-assessable (except as such non-assessability may be affected by Sections 17-303, 17-607 and 17-804 of the Delaware LP Act);
(vii) the Firm Units have been or will be, as the case may be, issued in compliance with all applicable rules of the Primary Stock Exchange;
(viii) the Partnership’s currently outstanding Common Units are listed on the Primary Stock Exchange and the Partnership has not received any notice of delisting;
(ix) the Firm Units shall have those rights, preferences, privileges and restrictions governing the Common Units as set forth in the Prospectus.
1.5 No consentPartnership Agreement. A true and correct copy of the Partnership Agreement, approvalas amended through the date hereof, authorization or other order of any governmental authority is required in connection with the execution or delivery has been filed by the Partnership of this Agreement or with the issuance and sale by the Partnership of the UnitsCommission on January 3, except such 2011, as may be required under the Securities Act or applicable state securities laws.
1.6 There are no actions, suits or proceedings pending or Exhibit 5.1 to the knowledge of the Partnership, threatened against the Partnership at law or in equity or before or by any federal or state commission, regulatory body or administrative agency or other governmental body, domestic or foreign, which will have a material adverse effect ’s Current Report on the business or property of the Partnership.
1.7 The execution and delivery of this Agreement, the consummation of the transactions herein contemplated and compliance with the terms of this Agreement by the Partnership will not conflict with or constitute a default under any charter, bylaw, indenture, mortgage, deed of trust, lease, rule, regulation, writ, injunction or decree of any government, governmental instrumentality or court, domestic or foreign, having jurisdiction over the Partnership, except to the extent that the enforceability of the indemnity and/or contribution provisions contained in Section 4 of this Agreement may be limited under applicable securities laws.
1.8 The Partnership has full legal right, power and authority to enter into this Agreement and to perform the transactions contemplated hereby, except to the extent that the enforceability of the indemnity and/or contribution provisions contained in Section 4 of this Agreement may be limited under applicable securities laws.
1.9 At the time of the issuance of the Units, the Units will have been duly authorized and validly issued, and upon payment therefor, will be fully paid and nonassessable and will conform to the description thereof contained in the Prospectus, subject to the requirement that the limited partners do not participate in the management or control of the business of the Partnership.Form 8-K.
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES OF THE PARTNERSHIP. The Partnership represents Parties, jointly and warrants to the Dealer Manager severally, represent and each dealer with whom the Dealer Manager has entered into or will enter into a Selected Dealer Agreement in the form attached to this Agreement warrant to, and covenant with, BMOCM as Exhibit A (said dealers being hereinafter called the "Dealers") thatfollows:
1.1 A registration statement with respect to the Partnership has been prepared by the Partnership in accordance with applicable requirements of the Securities Act of 1933, as amended (the "Securities Act"), and the applicable rules and regulations (the "Rules and Regulations"a) of the Securities and Exchange Commission (the "SEC") promulgated thereunder, covering the Units. Such registration statement, which includes a preliminary prospectus, was initially filed with the SEC on or about September 27, 2002. Copies of such registration statement and each amendment thereto have been or will be delivered to the Dealer Manager. (The registration statement and prospectus contained therein, as finally amended and revised at the effective date of the registration statement, are respectively hereinafter referred to as the "Registration Statement" and the "Prospectus," except that if the Prospectus first filed by the Partnership pursuant to Rule 424(b) under the Securities Act shall differ from the Prospectus, the term "Prospectus" shall also include the Prospectus filed pursuant to Rule 424(b).)
1.2 The Partnership has been duly and validly organized and formed as a limited partnership under the laws of the state of Texas, with the power and authority to conduct its business as described in the Prospectus.
1.3 The Registration Statement and any post-effective amendment thereto have become effective. The Partnership has responded to all requests, if any, of the Commission for additional or supplemental information. No stop order suspending the effectiveness of the Registration Statement is in effect and no proceedings for such purpose have been instituted or are pending or, to the best knowledge of the Partnership, are contemplated or threatened by the Commission.
(i) At the respective times the Registration Statement and any post-effective amendment thereto became effective, (ii) at each deemed effective date with respect to BMOCM pursuant to Rule 430B(f)(2) under the Act, (iii) as of each Time of Sale, (iv) at each Settlement Date and (v) at all times during such period as the Prospectus is required by law to be delivered (whether physically, deemed to be delivered pursuant to Rule 153 or through compliance with Rule 172 of the Rules and Regulations or any similar rule) in connection with sales of the Common Units (the “Prospectus Delivery Period”), the Registration Statement complied and will comply in all material respects with the Securities Act and the Rules and Regulations Regulations, and do did not and will not contain any an untrue statements statement of a material facts 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. As of each Time of Sale and each Settlement Date and at all times during the Prospectus Delivery Period, however, that the foregoing provisions of this Section 1.3 will not extend to such statements contained in or omitted from the Registration Statement or Prospectus as are primarily within the knowledge of the Dealer Manager or any of the Dealers and are based upon information furnished by the Dealer Manager in writing to the Partnership specifically for inclusion therein.
1.4 The Partnership intends to use the funds received from the sale of the Units as set forth in the Prospectus.
1.5 No consent, approval, authorization or other order of any governmental authority is required in connection with the execution or delivery by the Partnership of this Agreement or the issuance and sale by the Partnership of the Units, except such as may be required under the Securities Act or applicable state securities laws.
1.6 There are no actions, suits or proceedings pending or to the knowledge of the Partnership, threatened against the Partnership at law or in equity or before or by any federal or state commission, regulatory body or administrative agency or other governmental body, domestic or foreign, which will have a material adverse effect on the business or property of the Partnership.
1.7 The execution and delivery of this Agreement, the consummation of the transactions herein contemplated and compliance with the terms of this Agreement by the Partnership will not conflict with or constitute a default under any charter, bylaw, indenture, mortgage, deed of trust, lease, rule, regulation, writ, injunction or decree of any government, governmental instrumentality or court, domestic or foreign, having jurisdiction over the Partnership, except to the extent that the enforceability of the indemnity and/or contribution provisions contained in Section 4 of this Agreement may be limited under applicable securities laws.
1.8 The Partnership has full legal right, power and authority to enter into this Agreement and to perform the transactions contemplated hereby, except to the extent that the enforceability of the indemnity and/or contribution provisions contained in Section 4 of this Agreement may be limited under applicable securities laws.
1.9 At the time of the issuance of the Units, the Units will have been duly authorized and validly issued, and upon payment therefor, will be fully paid and nonassessable and will conform to the description thereof contained in the Prospectus, subject to as amended or supplemented, complied and will comply in all material respects with the requirement that Act and the limited partners do not participate in the management or control Rules and Regulations, and, together with all of the business of the Partnership.then issued Permitted Free Writing Prospectuses, if any, did not and will not contain any untrue statement of
Appears in 1 contract
Samples: Equity Distribution Agreement (New Source Energy Partners L.P.)
REPRESENTATIONS AND WARRANTIES OF THE PARTNERSHIP. The Partnership represents and warrants to and agrees with the Dealer Manager and each dealer with whom the Dealer Manager has entered into or will enter into a Selected Dealer Agreement in the form attached to this Agreement as Exhibit A (said dealers being hereinafter called the "Dealers") Underwriter that:
1.1 A registration statement (a) the Registration Statement has heretofore become effective under the Act or, with respect to any registration statement to be filed to register the Partnership offer and sale of Units pursuant to Rule 462(b) under the Act, will be filed with the Commission and become effective under the Act no later than 10:00 P.M., New York City time, on the date of determination of the public offering price for the Units; no stop order of the Commission preventing or suspending the use of the Basic Prospectus, any Preliminary Prospectus, the Prospectus Supplement, the Prospectus or any Permitted Free Writing Prospectus, or the effectiveness of the Registration Statement, has been prepared issued, and no proceedings for such purpose have been instituted or, to the Partnership’s knowledge, are contemplated by the Partnership Commission;
(b) the Registration Statement conformed when it became effective, conforms as of the date hereof and, as amended or supplemented, at the time of purchase and each additional time of purchase, if any, will conform, in accordance all material respects, with applicable the requirements of the Securities Act Act; the conditions to the use of 1933, Form S-3 in connection with the offering and sale of the Units as amended (contemplated hereby have been satisfied; the "Securities Act")Registration Statement meets, and the applicable rules offering and regulations (the "Rules and Regulations") sale of the Securities and Exchange Commission (Units as contemplated hereby conforms with, the "SEC") promulgated thereunder, covering requirements of Rule 415 under the Units. Such registration statement, which includes a preliminary prospectus, was initially filed with Act; the SEC on or about September 27, 2002. Copies of such registration statement and each amendment thereto have been or will be delivered to the Dealer Manager. (The registration statement and prospectus contained thereinRegistration Statement did not, as finally amended and revised at the effective date of the registration statementEffective Time, are respectively hereinafter referred to as the "Registration Statement" and the "Prospectus," except that if the Prospectus first filed by the Partnership pursuant to Rule 424(b) under the Securities Act shall differ from the Prospectus, the term "Prospectus" shall also include the Prospectus filed pursuant to Rule 424(b).)
1.2 The Partnership has been duly and validly organized and formed as contain an untrue statement of a limited partnership under the laws of the state of Texas, with the power and authority to conduct its business as described in the Prospectus.
1.3 The Registration Statement and Prospectus comply with the Securities Act and the Rules and Regulations and do not contain any untrue statements of material facts fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein not misleading; each Preliminary Prospectus conformed or will conform in all material respects with the requirements from the Act as of the date hereof, at the time it was filed with the Commission, as of the date of such Preliminary Prospectus and at the time of purchase and each additional time of purchase, if any; the Disclosure Package did not, as of the Applicable Time, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein therein, in the light of the circumstances under which they were made, not misleading; the Basic Prospectus conformed or will conform, as of its date and at the time of purchase and each additional time of purchase, if any, in all material respects, with the requirements of the Act; each of the Prospectus Supplement and the Prospectus will conform, as of the date that it is filed with the Commission, the date of the Prospectus Supplement, the time of purchase and each additional time of purchase, if any, in all material respects, with the requirements of the Act (in the case of the Prospectus, including, without limitation, Section 10(a) of the Act); as of the date of the Prospectus Supplement, and at the time of purchase and the additional time of purchase, if any, the Prospectus Supplement or the Prospectus, as then amended or supplemented, did not or will not 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; as of the date of such Permitted Free Writing Prospectus and at the time of purchase each Permitted Free Writing Prospectus when taken together as a whole with the Disclosure Package did not or will not 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; each electronic road show when taken together as a whole with the Disclosure Package, does not, as of the date hereof, contain any untrue statement of a material fact or omit to state any material fact necessary in or to make the statements therein, in the light of the circumstances under which they were made, not misleading; each Permitted Free Writing prospectus does not include any information that conflicts with the information contained in the Registration Statement or the Prospectus; each Incorporated Document, at the time such document was filed with the Commission or at the time such document became effective, as applicable, conformed, in all material respects, with the requirements of the Exchange Act and did not 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; provided, however, that the foregoing provisions Partnership makes no representation or warranty in this Section 3(b) with respect to any statement contained in the Registration Statement, any Preliminary Prospectus, the Prospectus, any Permitted Free Writing Prospectus or any Incorporated Document in reliance upon and in conformity with information concerning an Underwriter and furnished in writing by or on behalf of such Underwriter to the Partnership expressly for use in the Registration Statement, such Preliminary Prospectus, the Prospectus, such Permitted Free Writing Prospectus or Incorporated Document;
(c) prior to the execution of this Agreement, the Partnership has not, directly or indirectly, offered or sold any 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 offer or sale of the Units, in each case other than the Preliminary Prospectus or the Permitted Free Writing Prospectus, if any; the Partnership has not, directly or indirectly, prepared, used or referred to any Permitted Free Writing Prospectus except in compliance with Rules 164 and 433 under the Act; the Partnership is not an “ineligible issuer” (as defined in Rule 405 under the Act) as of the eligibility determination date for purposes of Rules 164 and 433 under the Act with respect to the offering of the Units contemplated by the Registration Statement; the parties hereto agree and understand that the content of any and all “road shows” (as defined in Rule 433 under the Act) related to the offering of the Units contemplated hereby is solely the property of the Partnership;
(d) in accordance with Rule 5110(b)(7)(C)(i) of the Financial Industry Regulatory Authority, Inc. (“FINRA”), the Units are registered with the Commission on Form S-3 under the Act pursuant to the standards for such Form S-3 in effect prior to October 21, 1992;
(e) (i) as of the date of this Agreement, the issued and outstanding limited partner interests of the Partnership consist of 109,939,221 Common Units and 39,997 Common Units - Class B (“Class B Units”). The only issued and outstanding general partner interests of the Partnership are the interests of Genesis Energy, LLC, a Delaware limited liability company (the “General Partner”), described in the Partnership Agreement. All of the outstanding Common Units and Class B Units have been duly authorized and validly issued in accordance with applicable Law and the Partnership Agreement and are fully paid (to the extent required by applicable Law and under the Partnership Agreement) and non-assessable (except as such non-assessability may be affected by Sections 17-303, 17-607 and 17-804 of the Delaware Revised Uniform Limited Partnership Act (the “Delaware LP Act”));
(ii) other than the Genesis Energy, Inc. 2007 Long-Term Incentive Plan and the Genesis Energy, L.P. 2010 Long-Term Incentive Plan, the Partnership has no equity compensation plans that contemplate the issuance of Common Units or any other class of equity (or securities convertible into or exchangeable for Common Units or any other class of equity). The Partnership has no outstanding indebtedness having the right to vote (or convertible into or exchangeable for securities having the right to vote) on any matters on which the unitholders of the Partnership (within the meaning of the Partnership Agreement, the “Unitholders”) may vote. Except as set forth in the first sentence of this Section 1.3 will not extend to such statements contained 3(e)(ii) or as disclosed in the Disclosure Package, there are no outstanding or omitted from authorized (A) options, warrants, preemptive rights, subscriptions, calls or other rights, convertible securities, agreements, claims or commitments of any character obligating the Registration Statement or Prospectus as are primarily within the knowledge of the Dealer Manager Partnership or any of its Subsidiaries to issue, transfer or sell any partnership interests or other equity interests in the Dealers Partnership or any of its Subsidiaries or securities convertible into or exchangeable for such partnership interests or other equity interests, (B) obligations of the Partnership or any of its Subsidiaries to repurchase, redeem or otherwise acquire any partnership interests or other equity interests in the Partnership or any of its Subsidiaries or any such securities or agreements listed in clause (A) of this section or (C) voting trusts or similar agreements to which the Partnership or any of its Subsidiaries is a party with respect to the voting of the equity interests of the Partnership or any of its Subsidiaries;
(iii) the Partnership, directly or indirectly, owns (A) 100% of the partnership interests in Genesis Crude Oil, L.P., a Delaware limited partnership (the “Operating Partnership”) (including the General Partner’s ownership of 0.01% of the partnership interests in the Operating Partnership), (B) 100% of the partnership interests in each of Genesis Pipeline Texas, L.P., a Delaware limited partnership, Genesis Pipeline USA, L.P., a Delaware limited partnership, Genesis CO2 Pipeline, L.P., a Delaware limited partnership, Genesis Natural Gas Pipeline, L.P., a Delaware limited partnership, and are based upon information furnished by Genesis Syngas Investments, L.P., a Delaware limited partnership (the Dealer Manager “Limited Partnership Subsidiaries”) (including the General Partner’s ownership of 0.01% of the partnership interests in writing each Limited Partnership Subsidiary), (C) 100% of the equity interests in each other Subsidiary not listed in clauses (A) and (B) of this Section 3(e)(iii), (D) 50% of the partnership interests in T&P Syngas Supply Company, a Delaware general partnership (“T&P Syngas”), (E) 50% of the outstanding limited liability company interests in Sandhill Group, LLC, a Mississippi limited liability company (“Sandhill”), (F) 64% of the equity interests in Poseidon Oil Pipeline Company, L.L.C., a Delaware limited liability company (“Poseidon”), (G) 29% of the equity interests in Odyssey Pipeline L.L.C., a Delaware limited liability company (“Odyssey”), (H) 50% of the equity interests in Deepwater Gateway, L.L.C., a Delaware limited liability company (“Deepwater Gateway”), (I) 80% of the equity interests in Independence Hub, LLC, a Delaware limited liability company (“Independence Hub”), and (J) 25.67% of the equity interests in Neptune Pipeline Company, L.L.C., a Delaware limited liability company (“Neptune”) (which as of the date of this Agreement owns 100% of the equity interests in each of Nautilus Pipeline Company, L.L.C., a Delaware limited liability company (“Nautilus”), and Manta Ray Offshore Gathering Company, L.L.C., a Delaware limited liability company (“Manta Ray Offshore”) (which as of the date of this Agreement owns 50% of the equity interests in Atlantis Offshore, LLC, a Delaware limited liability company (“Atlantis”))), in each case free and clear of any Liens (except for such restrictions as may exist under applicable Law and except for such Liens as may be imposed under the Partnership’s or the Partnership’s Subsidiaries’ credit facilities filed as exhibits to the Partnership specifically SEC Documents (defined below) or that certain Revolving Credit Agreement, dated as of February 27, 2015, by and among the Company, Xxxxx Fargo Bank, National Association, as Administrative Agent, Issuing Bank and Swingline Lender, DNB Markets, Inc., MUFG Union Bank, N.A. and Mizuho Bank, Ltd., as Co-Syndication Agents, Sumitomo Mitsui Banking Corporation, as Documentation Agent and each of the lenders party thereto (as amended, modified, supplemented or restated from time to time, the “Poseidon Credit Agreement”)), and all such ownership interests have been duly authorized and validly issued and are fully paid (to the extent required by applicable Law and the organizational documents of the Partnership’s Subsidiaries, T&P Syngas, Sandhill, Poseidon, Odyssey, Deepwater Gateway, Independence Hub, Neptune, Nautilus, Manta Ray Offshore and Atlantis, as applicable) and non-assessable (except as non-assessability may be affected by the Delaware Revised Uniform Partnership Act, Sections 17-303, 17-607 and 17-804 of the Delaware LP Act, Sections 18-607 and 18-804 of the Delaware Limited Liability Company Act (the “Delaware LLC Act”) or any analogous statute in the jurisdiction of formation of any Subsidiary and Sandhill, or the organizational documents of the Partnership’s Subsidiaries, T&P Syngas, Sandhill, Poseidon, Odyssey, Deepwater Gateway, Independence Hub, Neptune, Nautilus, Manta Ray Offshore and Atlantis, as applicable) and free of preemptive rights, with no personal liability attaching to the ownership thereof, and except for inclusion therein.T&P Syngas, Sandhill, Poseidon, Odyssey, Deepwater Gateway, Independence Hub, Neptune, Nautilus, Manta Ray Offshore and Atlantis neither the Partnership nor any of its Subsidiaries owns directly or indirectly any shares of capital stock or other securities of, or interest in, any other person or entity (other than another Subsidiary), or is obligated to make any capital contribution to or other investment in any other person or entity. Schedule C attached hereto contains a complete and accurate list of all of the Partnership’s “significant subsidiaries” (as defined in Rule 405 under the Act);
1.4 The (iv) the General Partner is the sole general partner of the Partnership intends and each Limited Partnership Subsidiary, with a non-economic general partner interest in the Partnership and a non-economic general partner interest in each Limited Partnership Subsidiary. Such general partner interests have been duly authorized and validly issued in accordance with applicable Law, the Partnership Agreement and the partnership agreements of each Limited Partnership Subsidiary and are fully paid (to use the funds received from extent required by applicable Law and under the Partnership Agreement and the partnership agreements of each Limited Partnership Subsidiary) and non assessable (except as such non assessability may be affected by Sections 17-303, 17-607 and 17-804 of the Delaware LP Act);
(v) the offer and sale of the Units and the limited partner interests represented thereby have been duly authorized by the Partnership pursuant to the Partnership Agreement and, when issued and delivered against payment therefor in accordance with the terms of this Agreement, will be validly issued, fully paid (to the extent required by applicable Law and the Partnership Agreement) and non-assessable (except as such non-assessability may be affected by Sections 17-303, 17-607 and 17-804 of the Delaware LP Act) and will be free and clear of all Liens and restrictions on transfer other than those restrictions on transfer in the Partnership Agreement and applicable state and federal securities Laws and other such Liens as are created by the Underwriter;
(vii) the Firm Units have been or will be, as the case may be, issued in compliance with all applicable rules of the Primary Stock Exchange. Prior to the closing of the sale of the Firm Units, the Partnership will complete its additional listing application to the Primary Stock Exchange with respect to the Units and such Units will be duly listed and admitted and authorized for trading, subject to official notice of issuance;
(viii) the Partnership’s currently outstanding Common Units are listed on the Primary Stock Exchange and the Partnership has not received any notice of delisting;
(ix) the Firm Units shall have those rights, preferences, privileges and restrictions governing the Common Units as set forth in the Prospectus.
1.5 No consentPartnership Agreement. A true and correct copy of the Partnership Agreement, approvalas amended through the date hereof, authorization or other order of any governmental authority is required in connection with the execution or delivery has been filed by the Partnership of this Agreement or with the issuance and sale by the Partnership of the UnitsCommission on January 3, except such 2011, as may be required under the Securities Act or applicable state securities laws.
1.6 There are no actions, suits or proceedings pending or Exhibit 3.1 to the knowledge of the Partnership, threatened against the Partnership at law or in equity or before or by any federal or state commission, regulatory body or administrative agency or other governmental body, domestic or foreign, which will have a material adverse effect ’s Current Report on the business or property of the Partnership.
1.7 The execution and delivery of this Agreement, the consummation of the transactions herein contemplated and compliance with the terms of this Agreement by the Partnership will not conflict with or constitute a default under any charter, bylaw, indenture, mortgage, deed of trust, lease, rule, regulation, writ, injunction or decree of any government, governmental instrumentality or court, domestic or foreign, having jurisdiction over the Partnership, except to the extent that the enforceability of the indemnity and/or contribution provisions contained in Section 4 of this Agreement may be limited under applicable securities laws.
1.8 The Partnership has full legal right, power and authority to enter into this Agreement and to perform the transactions contemplated hereby, except to the extent that the enforceability of the indemnity and/or contribution provisions contained in Section 4 of this Agreement may be limited under applicable securities laws.
1.9 At the time of the issuance of the Units, the Units will have been duly authorized and validly issued, and upon payment therefor, will be fully paid and nonassessable and will conform to the description thereof contained in the Prospectus, subject to the requirement that the limited partners do not participate in the management or control of the business of the Partnership.Form 8-K.
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES OF THE PARTNERSHIP. The Partnership represents and warrants to and agrees with each of the Dealer Manager and each dealer with whom the Dealer Manager has entered into or will enter into a Selected Dealer Agreement in the form attached to this Agreement as Exhibit A (said dealers being hereinafter called the "Dealers") Underwriters that:
1.1 A registration statement (a) each Registration Statement has heretofore become effective under the Act or, with respect to any registration statement to be filed to register the Partnership offer and sale of Units pursuant to Rule 462(b) under the Act, will be filed with the Commission and become effective under the Act no later than 10:00 P.M., New York City time, on the date of determination of the public offering price for the Units; no stop order of the Commission preventing or suspending the use of any Basic Prospectus, any Preliminary Prospectus, the Prospectus Supplement, the Prospectus or any Permitted Free Writing Prospectus, or the effectiveness of a Registration Statement, has been prepared issued, and no proceedings for such purpose have been instituted or, to the Partnership’s knowledge, are contemplated by the Partnership Commission;
(b) each Registration Statement conformed when it became effective, conforms as of the date hereof and, as amended or supplemented, at the time of purchase and each additional time of purchase, if any, will conform, in accordance all material respects, with applicable the requirements of the Securities Act Act; the conditions to the use of 1933, Form S-3 in connection with the offering and sale of the Units as amended (the "Securities Act")contemplated hereby have been satisfied; each Registration Statement meets, and the applicable rules offering and regulations (the "Rules and Regulations") sale of the Securities and Exchange Commission (Units as contemplated hereby conforms with, the "SEC") promulgated thereunder, covering requirements of Rule 415 under the Units. Such registration statement, which includes a preliminary prospectus, was initially filed with the SEC on or about September 27, 2002. Copies of such registration statement and Act; each amendment thereto have been or will be delivered to the Dealer Manager. (The registration statement and prospectus contained thereinRegistration Statement did not, as finally amended and revised at the effective date of the registration statementEffective Time, are respectively hereinafter referred to as the "Registration Statement" and the "Prospectus," except that if the Prospectus first filed by the Partnership pursuant to Rule 424(b) under the Securities Act shall differ from the Prospectus, the term "Prospectus" shall also include the Prospectus filed pursuant to Rule 424(b).)
1.2 The Partnership has been duly and validly organized and formed as contain an untrue statement of a limited partnership under the laws of the state of Texas, with the power and authority to conduct its business as described in the Prospectus.
1.3 The Registration Statement and Prospectus comply with the Securities Act and the Rules and Regulations and do not contain any untrue statements of material facts fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein not misleading; each Preliminary Prospectus conformed as of the date hereof, in all material respects with the requirements from the Act, at the time it was filed with the Commission, and, as of the date of the Preliminary Prospectus and at the time of purchase and each additional time of purchase, if any, and no Preliminary Prospectus, as then amended or supplemented, did or will include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein therein, in the light of the circumstances under which they were made, not misleading; the Disclosure Package did not, as of the Applicable Time, 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; each Basic Prospectus conformed or will conform, as of its date and at the time of purchase and each additional time of purchase, if any, in all material respects, with the requirements of the Act, and no Basic Prospectus, as then amended or supplemented, did or will 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; each of the Prospectus Supplement and the Prospectus will conform, as of the date that it is filed with the Commission, the date of the Prospectus Supplement, the time of purchase and each additional time of purchase, if any, in all material respects, with the requirements of the Act (in the case of the Prospectus, including, without limitation, Section 10(a) of the Act); as of the date of the Prospectus Supplement, and at the time of purchase and the additional time of purchase, if any, each Prospectus Supplement or the Prospectus, as then amended or supplemented, did not or will not 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; as of the date of such Permitted Free Writing Prospectus and at the time of purchase each Permitted Free Writing Prospectus did not or will not 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; each electronic road show when taken together as a whole with the Disclosure Package, does not, as of the date hereof, contain any untrue statement of a material fact or omit to state any material fact necessary in or to make the statements therein, in the light of the circumstances under which they were made, not misleading; each Permitted Free Writing prospectus does not include any information that conflicts with the information contained in the Registration Statement or the Prospectus; each Incorporated Document, at the time such document was filed with the Commission or at the time such document became effective, as applicable, conformed, in all material respects, with the requirements of the Exchange Act and did not 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; provided, however, that the foregoing provisions Partnership makes no representation or warranty in this Section 3(b) with respect to any statement contained in a Registration Statement, any Preliminary Prospectus, the Prospectus, any Permitted Free Writing Prospectus or any Incorporated Document in reliance upon and in conformity with information concerning an Underwriter or Selling Unitholder and furnished in writing by or on behalf of such Underwriter through the Representatives or on behalf of such Selling Unitholder to the Partnership expressly for use in a Registration Statement, such Preliminary Prospectus, the Prospectus, such Permitted Free Writing Prospectus or Incorporated Document;
(c) prior to the execution of this Agreement, the Partnership has not, directly or indirectly, offered or sold and 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 offer or sale of the Units, in each case other than the Preliminary Prospectus or the Permitted Free Writing Prospectus, if any; the Partnership has not, directly or indirectly, prepared, used or referred to any Permitted Free Writing Prospectus except in compliance with Rules 164 and 433 under the Act; the Partnership is not an “ineligible issuer” (as defined in Rule 405 under the Act) as of the eligibility determination date for purposes of Rules 164 and 433 under the Act with respect to the offering of the Units contemplated by the Registration Statements; the parties hereto agree and understand that the content of any and all “road shows” (as defined in Rule 433 under the Act) related to the offering of the Units contemplated hereby is solely the property of the Partnership;
(d) in accordance with Rule 5110(b)(7)(C)(i) of the Financial Industry Regulatory Authority, Inc. (“FINRA”), the Units are registered with the Commission on Forms S-3 under the Act pursuant to the standards for such Form S-3 in effect prior to October 21, 1992;
(e) (i) as of the date of this Agreement, the issued and outstanding limited partner interests of the Partnership consist of 39,585,692 Common Units and the incentive distribution rights in the Partnership (as defined in the Partnership Agreement, the “Incentive Distribution Rights”), and all of the Incentive Distribution Rights are owned by Genesis Energy, LLC, a Delaware limited liability company (the “General Partner”). The only issued and outstanding general partner interests of the Partnership are the interests of the General Partner described in the Partnership Agreement. All of the outstanding Common Units and Incentive Distribution Rights have been duly authorized and validly issued in accordance with applicable Law and the Partnership Agreement and are fully paid (to the extent required by applicable Law and under the Partnership Agreement) and non assessable (except as such non assessability may be affected by Sections 17-303, 17-607 and 17-804 of the Delaware Revised Uniform Limited Partnership Act (the “Delaware LP Act”));
(ii) other than the Genesis Energy, Inc. 2007 Long-Term Incentive Plan, the Partnership has no equity compensation plans that contemplate the issuance of Common Units or any other class of equity (or securities convertible into or exchangeable for Common Units or any other class of equity). The Partnership has no outstanding indebtedness having the right to vote (or convertible into or exchangeable for securities having the right to vote) on any matters on which the unitholders of the Partnership (within the meaning of the Partnership Agreement, the “Unitholders”) may vote. Except as set forth in the first sentence of this Section 1.3 will not extend to such statements contained 3(e)(ii), as disclosed in the Disclosure Package, there are no outstanding or omitted from authorized (A) options, warrants, preemptive rights, subscriptions, calls or other rights, convertible securities, agreements, claims or commitments of any character obligating the Registration Statement or Prospectus as are primarily within the knowledge of the Dealer Manager Partnership or any of its Subsidiaries to issue, transfer or sell any partnership interests or other equity interests in the Dealers Partnership or any of its Subsidiaries or securities convertible into or exchangeable for such partnership interests or other equity interests, (B) obligations of the Partnership or any of its Subsidiaries to repurchase, redeem or otherwise acquire any partnership interests or other equity interests in the Partnership or any of its Subsidiaries or any such securities or agreements listed in clause (A) of this section or (C) voting trusts or similar agreements to which the Partnership or any of its Subsidiaries is a party with respect to the voting of the equity interests of the Partnership or any of its Subsidiaries;
(iii) the Partnership, directly or indirectly, owns (A) 99.99% of the partnership interests in Genesis Crude Oil, L.P., a Delaware limited partnership (the “Operating Partnership”) (and are based upon information furnished by the Dealer Manager General Partner owns 0.01% of the partnership interests in writing the Operating Partnership), (B) 100% of the limited partnership interests in each of Genesis Pipeline Texas, L.P., a Delaware limited partnership, Genesis Pipeline USA, L.P., a Delaware limited partnership, Genesis CO2 Pipeline, L.P., a Delaware limited partnership, Genesis Natural Gas Pipeline, L.P., a Delaware limited partnership, and Genesis Syngas Investments, L.P., a Delaware limited partnership (the “Limited Partnership Subsidiaries”), (C) 100% of the equity interests in each other Subsidiary not listed in clauses (A) or (B) of this Section 3(e)(iii), (D) 50% of the partnership interests in T&P Syngas Supply Company, a Delaware general partnership (“T&P Syngas”), (E) 50% of the outstanding limited liability company interests of Sandhill Group, LLC, a Mississippi limited liability company (“Sandhill”), (F) 5.7 % of the limited liability company interest in Xxxxxxxx Hydrogen Products, LLC, a Delaware limited liability company (“Xxxxxxxx”), and (G) an effective 49% interest in DG Marine Transportation, LLC, a Delaware limited liability company (“DG Marine”), in each case free and clear of any Liens (except for such restrictions as may exist under applicable Law and except for such Liens as may be imposed under the Partnership’s or the Partnership’s Subsidiaries’ credit facilities filed as exhibits to the Partnership specifically for inclusion therein.
1.4 The Partnership intends SEC Documents (defined below) or that certain Revolving Credit Agreement, dated as of July 18, 2008, among DG Marine, the lenders party from time to use time thereto, Suntrust Bank, as Administrative Agent, and BMO Capital Markets Financing, Inc., as Syndication Agent (as amended, modified or supplemented from time to time, the funds received from “DG Marine Credit Facility”)), and all such ownership interests have been duly authorized and validly issued and are fully paid (to the sale extent required by applicable Law and the organizational documents of the Partnership’s Subsidiaries, T&P Syngas, Sandhill, Xxxxxxxx and DG Marine, as applicable) and non-assessable (except as non-assessability may be affected by Sections 17-303, 17-607 and 17-804 of the Delaware LP Act, Sections 18-607 and 18-804 of the Delaware Limited Liability Company Act (the “Delaware LLC Act”) (in the case of Sandhill, Xxxxxxxx and DG Marine) or any analogous statue in the jurisdiction of formation of any Subsidiary, or the organizational documents of the Partnership’s Subsidiaries, T&P Syngas, Sandhill, Xxxxxxxx and DG Marine, as applicable) and free of preemptive rights, with no personal liability attaching to the ownership thereof, and except for T&P Syngas, Sandhill, Xxxxxxxx and DG Marine, neither the Partnership nor any of its Subsidiaries owns directly or indirectly any shares of capital stock or other securities of, or interest in, any other person or entity (other than another Subsidiary), or is obligated to make any capital contribution to or other investment in any other person or entity. Schedule E attached hereto contains a complete and accurate list of all of the Partnership’s “significant subsidiaries” (as defined in Rule 405 under the Act);
(iv) the General Partner is the sole general partner of the Partnership and each Limited Partnership Subsidiary, with a 2% general partner interest in the Partnership and a non-economic general partner interest in each Limited Partnership Subsidiary. Such general partner interests have been duly authorized and validly issued in accordance with applicable Law, the Partnership Agreement and the partnership agreements of each Limited Partnership Subsidiary and are fully paid (to the extent required by applicable Law and under the Partnership Agreement and the partnership agreements of each Limited Partnership Subsidiary) and non assessable (except as such non assessability may be affected by Sections 17-303, 17-607 and 17-804 of the Delaware LP Act);
(v) the Firm Units and the limited partner interests represented thereby, when delivered to the Purchasers against payment therefor in accordance with the terms of this Agreement, will be validly issued, fully paid (to the extent required by applicable Law and the Partnership Agreement) and non-assessable (except as such non-assessability may be affected by Sections 17-303, 17-607 and 17-804 of the Delaware LP Act);
(vii) the Partnership’s currently outstanding Common Units are listed on the Primary Stock Exchange and the Partnership has not received any notice of delisting;
(viii) the Firm Units shall have those rights, preferences, privileges and restrictions governing the Common Units as set forth in the Prospectus.
1.5 No consentPartnership Agreement. A true and correct copy of the Partnership Agreement, approvalas amended through the date hereof, authorization or other order of any governmental authority is required in connection with the execution or delivery has been filed by the Partnership of this Agreement or with the issuance Commission on June 15, 2005 as Exhibit 10.1 to the Partnership’s Current Report on Form 8-K, as amended by Amendment No. 1 and sale Amendment No. 2 to the Partnership Agreement, filed by the Partnership of with the UnitsCommission on March 17, except such 2008 as may be required under the Securities Act or applicable state securities laws.
1.6 There are no actions, suits or proceedings pending or Exhibit 3.3 to the knowledge of Partnership’s Annual Report on Form 10-K for the year ended December 31, 2008 and on March 5, 2010 as Exhibit 10.2 to the Partnership’s Current Report on Form 8-K, threatened against the Partnership at law or in equity or before or by any federal or state commission, regulatory body or administrative agency or other governmental body, domestic or foreign, which will have a material adverse effect on the business or property of the Partnership.respectively;
1.7 The execution and delivery of this Agreement, the consummation of the transactions herein contemplated and compliance with the terms of this Agreement by the Partnership will not conflict with or constitute a default under any charter, bylaw, indenture, mortgage, deed of trust, lease, rule, regulation, writ, injunction or decree of any government, governmental instrumentality or court, domestic or foreign, having jurisdiction over the Partnership, except to the extent that the enforceability of the indemnity and/or contribution provisions contained in Section 4 of this Agreement may be limited under applicable securities laws.
1.8 The Partnership has full legal right, power and authority to enter into this Agreement and to perform the transactions contemplated hereby, except to the extent that the enforceability of the indemnity and/or contribution provisions contained in Section 4 of this Agreement may be limited under applicable securities laws.
1.9 At the time of the issuance of the Units, the Units will have been duly authorized and validly issued, and upon payment therefor, will be fully paid and nonassessable and will conform to the description thereof contained in the Prospectus, subject to the requirement that the limited partners do not participate in the management or control of the business of the Partnership.(ix) [Intentionally omitted]; and
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES OF THE PARTNERSHIP. The Partnership represents and warrants to and agrees with each of the Dealer Manager and each dealer with whom the Dealer Manager has entered into or will enter into a Selected Dealer Agreement in the form attached to this Agreement as Exhibit A (said dealers being hereinafter called the "Dealers") Underwriters that:
1.1 A registration statement (a) the Registration Statement has heretofore become effective under the Act or, with respect to any registration statement to be filed to register the Partnership offer and sale of Units pursuant to Rule 462(b) under the Act, will be filed with the Commission and become effective under the Act no later than 10:00 P.M., New York City time, on the date of determination of the public offering price for the Units; no stop order of the Commission preventing or suspending the use of the Basic Prospectus, any Preliminary Prospectus, the Prospectus Supplement, the Prospectus or any Permitted Free Writing Prospectus, or the effectiveness of the Registration Statement, has been prepared issued, and no proceedings for such purpose have been instituted or, to the Partnership’s knowledge, are contemplated by the Partnership Commission;
(b) the Registration Statement conformed when it became effective, conforms as of the date hereof and, as amended or supplemented, at the time of purchase and each additional time of purchase, if any, will conform, in accordance all material respects, with applicable the requirements of the Securities Act Act; the conditions to the use of 1933, Form S-3 in connection with the offering and sale of the Units as amended (contemplated hereby have been satisfied; the "Securities Act")Registration Statement meets, and the applicable rules offering and regulations (the "Rules and Regulations") sale of the Securities and Exchange Commission (Units as contemplated hereby conforms with, the "SEC") promulgated thereunder, covering requirements of Rule 415 under the Units. Such registration statement, which includes a preliminary prospectus, was initially filed with Act; the SEC on or about September 27, 2002. Copies of such registration statement and each amendment thereto have been or will be delivered to the Dealer Manager. (The registration statement and prospectus contained thereinRegistration Statement did not, as finally amended and revised at the effective date of the registration statementEffective Time, are respectively hereinafter referred to as the "Registration Statement" and the "Prospectus," except that if the Prospectus first filed by the Partnership pursuant to Rule 424(b) under the Securities Act shall differ from the Prospectus, the term "Prospectus" shall also include the Prospectus filed pursuant to Rule 424(b).)
1.2 The Partnership has been duly and validly organized and formed as contain an untrue statement of a limited partnership under the laws of the state of Texas, with the power and authority to conduct its business as described in the Prospectus.
1.3 The Registration Statement and Prospectus comply with the Securities Act and the Rules and Regulations and do not contain any untrue statements of material facts fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein not misleading; each Preliminary Prospectus conformed or will conform in all material respects with the requirements from the Act as of the date hereof, at the time it was filed with the Commission, as of the date of such Preliminary Prospectus and at the time of purchase and each additional time of purchase, if any; the Disclosure Package did not, as of the Applicable Time, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein therein, in the light of the circumstances under which they were made, not misleading; the Basic Prospectus conformed or will conform, as of its date and at the time of purchase and each additional time of purchase, if any, in all material respects, with the requirements of the Act; each of the Prospectus Supplement and the Prospectus will conform, as of the date that it is filed with the Commission, the date of the Prospectus Supplement, the time of purchase and each additional time of purchase, if any, in all material respects, with the requirements of the Act (in the case of the Prospectus, including, without limitation, Section 10(a) of the Act); as of the date of the Prospectus Supplement, and at the time of purchase and the additional time of purchase, if any, the Prospectus Supplement or the Prospectus, as then amended or supplemented, did not or will not 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; as of the date of such Permitted Free Writing Prospectus and at the time of purchase each Permitted Free Writing Prospectus when taken together as a whole with the Disclosure Package did not or will not 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; each electronic road show when taken together as a whole with the Disclosure Package, does not, as of the date hereof, contain any untrue statement of a material fact or omit to state any material fact necessary in or to make the statements therein, in the light of the circumstances under which they were made, not misleading; each Permitted Free Writing prospectus does not include any information that conflicts with the information contained in the Registration Statement or the Prospectus; each Incorporated Document, at the time such document was filed with the Commission or at the time such document became effective, as applicable, conformed, in all material respects, with the requirements of the Exchange Act and did not 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; provided, however, that the foregoing provisions Partnership makes no representation or warranty in this Section 3(b) with respect to any statement contained in the Registration Statement, any Preliminary Prospectus, the Prospectus, any Permitted Free Writing Prospectus or any Incorporated Document in reliance upon and in conformity with information concerning an Underwriter and furnished in writing by or on behalf of such Underwriter through the Representatives to the Partnership expressly for use in the Registration Statement, such Preliminary Prospectus, the Prospectus, such Permitted Free Writing Prospectus or Incorporated Document;
(c) prior to the execution of this Agreement, the Partnership has not, directly or indirectly, offered or sold any 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 offer or sale of the Units, in each case other than the Preliminary Prospectus or the Permitted Free Writing Prospectus, if any; the Partnership has not, directly or indirectly, prepared, used or referred to any Permitted Free Writing Prospectus except in compliance with Rules 164 and 433 under the Act; the Partnership is not an “ineligible issuer” (as defined in Rule 405 under the Act) as of the eligibility determination date for purposes of Rules 164 and 433 under the Act with respect to the offering of the Units contemplated by the Registration Statement; the parties hereto agree and understand that the content of any and all “road shows” (as defined in Rule 433 under the Act) related to the offering of the Units contemplated hereby is solely the property of the Partnership;
(d) in accordance with Rule 5110(b)(7)(C)(i) of the Financial Industry Regulatory Authority, Inc. (“FINRA”), the Units are registered with the Commission on Form S-3 under the Act pursuant to the standards for such Form S-3 in effect prior to October 21, 1992;
(e) (i) as of the date of this Agreement, the issued and outstanding limited partner interests of the Partnership consist of 88,650,988 Common Units, 39,997 Common Units - Class B (“Class B Units”) and 1,738,233 Waiver Units - Class 4 (“Waiver Units”). The only issued and outstanding general partner interests of the Partnership are the interests of Genesis Energy, LLC, a Delaware limited liability company (the “General Partner”), described in the Partnership Agreement. All of the outstanding Common Units, Class B Units and Waiver Units have been duly authorized and validly issued in accordance with applicable Law and the Partnership Agreement and are fully paid (to the extent required by applicable Law and under the Partnership Agreement) and non-assessable (except as such non-assessability may be affected by Sections 17-303, 17-607 and 17-804 of the Delaware Revised Uniform Limited Partnership Act (the “Delaware LP Act”));
(ii) other than the Genesis Energy, Inc. 2007 Long-Term Incentive Plan and the Genesis Energy, L.P. 2010 Long-Term Incentive Plan, the Partnership has no equity compensation plans that contemplate the issuance of Common Units or any other class of equity (or securities convertible into or exchangeable for Common Units or any other class of equity). The Partnership has no outstanding indebtedness having the right to vote (or convertible into or exchangeable for securities having the right to vote) on any matters on which the unitholders of the Partnership (within the meaning of the Partnership Agreement, the “Unitholders”) may vote. Except as set forth in the first sentence of this Section 1.3 will not extend to such statements contained 3(e)(ii) or as disclosed in the Disclosure Package, there are no outstanding or omitted from authorized (A) options, warrants, preemptive rights, subscriptions, calls or other rights, convertible securities, agreements, claims or commitments of any character obligating the Registration Statement or Prospectus as are primarily within the knowledge of the Dealer Manager Partnership or any of its Subsidiaries to issue, transfer or sell any partnership interests or other equity interests in the Dealers Partnership or any of its Subsidiaries or securities convertible into or exchangeable for such partnership interests or other equity interests, (B) obligations of the Partnership or any of its Subsidiaries to repurchase, redeem or otherwise acquire any partnership interests or other equity interests in the Partnership or any of its Subsidiaries or any such securities or agreements listed in clause (A) of this section or (C) voting trusts or similar agreements to which the Partnership or any of its Subsidiaries is a party with respect to the voting of the equity interests of the Partnership or any of its Subsidiaries;
(iii) the Partnership, directly or indirectly, owns (A) 100% of the partnership interests in Genesis Crude Oil, L.P., a Delaware limited partnership (the “Operating Partnership”) (including the General Partner’s ownership of 0.01% of the partnership interests in the Operating Partnership), (B) 100% of the limited partnership interests in each of Genesis Pipeline Texas, L.P., a Delaware limited partnership, Genesis Pipeline USA, L.P., a Delaware limited partnership, Genesis CO2 Pipeline, L.P., a Delaware limited partnership, Genesis Natural Gas Pipeline, L.P., a Delaware limited partnership, and are based upon information furnished by Genesis Syngas Investments, L.P., a Delaware limited partnership (the Dealer Manager “Limited Partnership Subsidiaries”), (C) 90.91% of the equity interests in writing Thunder Basin Holdings, LLC, a Delaware limited liability company (which owns 100% of the equity interests in each of Antelope Refining, LLC, a Delaware limited liability company, and Thunder Basin Pipeline, LLC, a Delaware limited liability company), (D) 100% of the equity interests in each other Subsidiary not listed in clauses (A), (B) or (C) of this Section 3(e)(iii), (E) 50% of the partnership interests in T&P Syngas Supply Company, a Delaware general partnership (“T&P Syngas”), (F) 50% of the outstanding limited liability company interests in Sandhill Group, LLC, a Mississippi limited liability company (“Sandhill”), (G) 10% or less of the limited liability company interest in Xxxxxxxx Hydrogen Products, LLC, a Delaware limited liability company (“Xxxxxxxx”), (H) 50% of the equity interests in Cameron Highway Oil Pipeline Company, a Delaware partnership (“Cameron”), (I) 50% of the equity interests in Southeast Xxxxxxxx Canyon Pipeline Company, L.L.C., a Delaware limited liability company (“Sekco”), (J) 28% of the equity interests in Poseidon Oil Pipeline Company, L.L.C., a Delaware limited liability company (“Poseidon”), and (K) 29% of the equity interests in Odyssey Pipeline L.L.C., a Delaware limited liability company (“Odyssey”), in each case free and clear of any Liens (except for such restrictions as may exist under applicable Law and except for such Liens as may be imposed under the Partnership’s or the Partnership’s Subsidiaries’ credit facilities filed as exhibits to the Partnership specifically SEC Documents (defined below)), and all such ownership interests have been duly authorized and validly issued and are fully paid (to the extent required by applicable Law and the organizational documents of the Partnership’s Subsidiaries, T&P Syngas, Sandhill, Faustina, Cameron, Sekco, Poseidon and Odyssey, as applicable) and non-assessable (except as non-assessability may be affected by the Delaware Revised Uniform Partnership Act, Sections 17-303, 17-607 and 17-804 of the Delaware LP Act, Sections 18-607 and 18-804 of the Delaware Limited Liability Company Act (the “Delaware LLC Act”) or any analogous statue in the jurisdiction of formation of any Subsidiary and Sandhill, or the organizational documents of the Partnership’s Subsidiaries, T&P Syngas, Sandhill, Faustina, Cameron, Sekco, Poseidon and Odyssey, as applicable) and free of preemptive rights, with no personal liability attaching to the ownership thereof, and except for inclusion therein.T&P Syngas, Sandhill, Faustina, Cameron, Sekco, Poseidon and Odyssey neither the Partnership nor any of its Subsidiaries owns directly or indirectly any shares of capital stock or other securities of, or interest in, any other person or entity (other than another Subsidiary), or is obligated to make any capital contribution to or other investment in any other person or entity. Schedule D attached hereto contains a complete and accurate list of all of the Partnership’s “significant subsidiaries” (as defined in Rule 405 under the Act);
1.4 The (iv) the General Partner is the sole general partner of the Partnership intends and each Limited Partnership Subsidiary, with a non-economic general partner interest in the Partnership and a non-economic general partner interest in each Limited Partnership Subsidiary. Such general partner interests have been duly authorized and validly issued in accordance with applicable Law, the Partnership Agreement and the partnership agreements of each Limited Partnership Subsidiary and are fully paid (to use the funds received from extent required by applicable Law and under the Partnership Agreement and the partnership agreements of each Limited Partnership Subsidiary) and non assessable (except as such non assessability may be affected by Sections 17-303, 17-607 and 17-804 of the Delaware LP Act);
(v) the offer and sale of the Units and the limited partner interests represented thereby have been duly authorized by the Partnership pursuant to the Partnership Agreement and, when issued and delivered against payment therefor in accordance with the terms of this Agreement, will be validly issued, fully paid (to the extent required by applicable Law and the Partnership Agreement) and non-assessable (except as such non-assessability may be affected by Sections 17-303, 17-607 and 17-804 of the Delaware LP Act) and will be free and clear of all Liens and restrictions on transfer other than those restrictions on transfer in the Partnership Agreement and applicable state and federal securities Laws and other such Liens as are created by the Underwriters;
(vii) the Firm Units have been or will be, as the case may be, issued in compliance with all applicable rules of the Primary Stock Exchange. Prior to the closing of the sale of the Firm Units, the Partnership will complete its additional listing application to the Primary Stock Exchange with respect to the Units and such Units will be duly listed and admitted and authorized for trading, subject to official notice of issuance;
(viii) the Partnership’s currently outstanding Common Units are listed on the Primary Stock Exchange and the Partnership has not received any notice of delisting;
(ix) the Firm Units shall have those rights, preferences, privileges and restrictions governing the Common Units as set forth in the Prospectus.
1.5 No consentPartnership Agreement. A true and correct copy of the Partnership Agreement, approvalas amended through the date hereof, authorization or other order of any governmental authority is required in connection with the execution or delivery has been filed by the Partnership of this Agreement or with the issuance and sale by the Partnership of the UnitsCommission on January 3, except such 2011, as may be required under the Securities Act or applicable state securities laws.
1.6 There are no actions, suits or proceedings pending or Exhibit 3.1 to the knowledge of the Partnership, threatened against the Partnership at law or in equity or before or by any federal or state commission, regulatory body or administrative agency or other governmental body, domestic or foreign, which will have a material adverse effect ’s Current Report on the business or property of the Partnership.
1.7 The execution and delivery of this Agreement, the consummation of the transactions herein contemplated and compliance with the terms of this Agreement by the Partnership will not conflict with or constitute a default under any charter, bylaw, indenture, mortgage, deed of trust, lease, rule, regulation, writ, injunction or decree of any government, governmental instrumentality or court, domestic or foreign, having jurisdiction over the Partnership, except to the extent that the enforceability of the indemnity and/or contribution provisions contained in Section 4 of this Agreement may be limited under applicable securities laws.
1.8 The Partnership has full legal right, power and authority to enter into this Agreement and to perform the transactions contemplated hereby, except to the extent that the enforceability of the indemnity and/or contribution provisions contained in Section 4 of this Agreement may be limited under applicable securities laws.
1.9 At the time of the issuance of the Units, the Units will have been duly authorized and validly issued, and upon payment therefor, will be fully paid and nonassessable and will conform to the description thereof contained in the Prospectus, subject to the requirement that the limited partners do not participate in the management or control of the business of the Partnership.Form 8-K.
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES OF THE PARTNERSHIP. The Partnership represents and warrants to the Dealer Manager and each dealer with whom the Dealer Manager has entered into or will enter into a Selected Dealer Agreement in the form attached to this Dealer Manager Agreement as Exhibit A “A” (said dealers being hereinafter called referred to as the "“Dealers"”) that:
1.1 A registration statement with respect to the Partnership has been prepared by the Partnership in accordance with applicable requirements of the Securities Act of 1933, as amended (the "“Securities Act"”), and the applicable rules and regulations (the "“Rules and Regulations"”) of the Securities and Exchange Commission (the "“SEC"”) promulgated thereunder, covering the Units. Such Said registration statement, which includes a preliminary prospectus, was initially filed with the SEC on or about September 27November , 2002. Copies of such registration statement and each amendment thereto have been or will be delivered to the Dealer Manager. (The registration statement and prospectus contained therein, as finally amended and revised at the effective date of the registration statement, are respectively hereinafter referred to as the "“Registration Statement" ” and the "“Prospectus," ” except that if the Prospectus first filed by the Partnership pursuant to Rule 424(b) under the Securities Act shall differ from the Prospectus, the term "“Prospectus" ” shall also include the Prospectus filed pursuant to Rule 424(b).)
1.2 The Partnership has been duly and validly organized and formed as a limited partnership under the laws Revised Uniform Limited Partnership Act of the state State of Texas, Georgia with the power and authority to conduct its business as described in the Prospectus.
1.3 The Registration Statement and Prospectus comply with the Securities Act and the Rules and Regulations and do not contain any untrue statements of material facts or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading; provided, however, that the foregoing provisions of this Section 1.3 will not extend to such statements contained in or omitted from the Registration Statement or Prospectus as are primarily within the knowledge of the Dealer Manager or any of the Dealers and are based upon information furnished by the Dealer Manager in writing to the Partnership specifically for inclusion therein.
1.4 The Partnership intends to use the funds received from the sale of the Units as set forth in the Prospectus.
1.5 No consent, approval, authorization or other order of any governmental authority is required in connection with the execution or delivery by the Partnership of this Dealer Manager Agreement or the issuance and sale by the Partnership of the Units, except such as may be required under the Securities Act or applicable state securities laws.
1.6 There are no actions, suits or proceedings pending or to the knowledge of the Partnership, threatened against the Partnership or its General Partners, at law or in equity or before or by any federal or state commission, regulatory body or administrative agency or other governmental body, domestic or foreign, which will have a material adverse effect on the business or property of the Partnership.
1.7 The execution and delivery of this Dealer Manager Agreement, the consummation of the transactions herein contemplated and compliance with the terms of this Dealer Manager Agreement by the Partnership will not conflict with or constitute a default under any charter, bylawby-law, indenture, mortgage, deed of trust, lease, rule, regulation, writ, injunction or decree of any government, governmental instrumentality or court, domestic or foreign, having jurisdiction over the Partnership, except to the extent that the enforceability of the indemnity and/or contribution provisions contained in Section 4 of this Dealer Manager Agreement may be limited under applicable securities laws.
1.8 The Partnership has full legal right, power and authority to enter into this Dealer Manager Agreement and to perform the transactions contemplated hereby, except to the extent that the enforceability of the indemnity and/or contribution provisions contained in Section 4 of this Dealer Manager Agreement may be limited under applicable securities laws.
1.9 At the time of the issuance of the Units, the Units will have been duly authorized and validly issued, and upon payment therefor, will be fully paid and nonassessable and will conform to the description thereof contained in the Prospectus, subject to the requirement that the limited partners do not participate in the management or control of the business of the Partnership.
1.10 The respective financial statements contained in the Registration Statement and the Prospectus fairly present the financial condition of the Partnership and Wxxxx Capital and the results of their respective operations as of the dates and for the periods therein specified; and such financial statements have been prepared in accordance with generally accepted accounting principles consistently applied throughout the periods involved; and the accountants who have certified certain of such financial statements are independent public accountants as required by the Securities Act and the Rules and Regulations.
Appears in 1 contract
Samples: Dealer Manager Agreement (Wells Real Estate Fund Xiv Lp)
REPRESENTATIONS AND WARRANTIES OF THE PARTNERSHIP. The Partnership represents and warrants to and agrees with each of the Dealer Manager and each dealer with whom the Dealer Manager has entered into or will enter into a Selected Dealer Agreement in the form attached to this Agreement as Exhibit A (said dealers being hereinafter called the "Dealers") Underwriters that:
1.1 A registration statement (a) the Registration Statement has heretofore become effective under the Act or, with respect to any registration statement to be filed to register the Partnership offer and sale of Units pursuant to Rule 462(b) under the Act, will be filed with the Commission and become effective under the Act no later than 10:00 P.M., New York City time, on the date of determination of the public offering price for the Units; no stop order of the Commission preventing or suspending the use of the Basic Prospectus, any Preliminary Prospectus, the Prospectus Supplement, the Prospectus or any Permitted Free Writing Prospectus, or the effectiveness of the Registration Statement, has been prepared issued, and no proceedings for such purpose have been instituted or, to the Partnership’s knowledge, are contemplated by the Partnership Commission;
(b) the Registration Statement conformed when it became effective, conforms as of the date hereof and, as amended or supplemented, at the time of purchase and each additional time of purchase, if any, will conform, in accordance all material respects, with applicable the requirements of the Securities Act Act; the conditions to the use of 1933, Form S-3 in connection with the offering and sale of the Units as amended (contemplated hereby have been satisfied; the "Securities Act")Registration Statement meets, and the applicable rules offering and regulations (the "Rules and Regulations") sale of the Securities and Exchange Commission (Units as contemplated hereby conforms with, the "SEC") promulgated thereunder, covering requirements of Rule 415 under the Units. Such registration statement, which includes a preliminary prospectus, was initially filed with Act; the SEC on or about September 27, 2002. Copies of such registration statement and each amendment thereto have been or will be delivered to the Dealer Manager. (The registration statement and prospectus contained thereinRegistration Statement did not, as finally amended and revised at the effective date of the registration statementEffective Time, are respectively hereinafter referred to as the "Registration Statement" and the "Prospectus," except that if the Prospectus first filed by the Partnership pursuant to Rule 424(b) under the Securities Act shall differ from the Prospectus, the term "Prospectus" shall also include the Prospectus filed pursuant to Rule 424(b).)
1.2 The Partnership has been duly and validly organized and formed as contain an untrue statement of a limited partnership under the laws of the state of Texas, with the power and authority to conduct its business as described in the Prospectus.
1.3 The Registration Statement and Prospectus comply with the Securities Act and the Rules and Regulations and do not contain any untrue statements of material facts fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein not misleading; each Preliminary Prospectus conformed or will conform in all material respects with the requirements from the Act as of the date hereof, at the time it was filed with the Commission, as of the date of such Preliminary Prospectus and at the time of purchase and each additional time of purchase, if any; the Disclosure Package did not, as of the Applicable Time, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein therein, in the light of the circumstances under which they were made, not misleading; the Basic Prospectus conformed or will conform, as of its date and at the time of purchase and each additional time of purchase, if any, in all material respects, with the requirements of the Act; each of the Prospectus Supplement and the Prospectus will conform, as of the date that it is filed with the Commission, the date of the Prospectus Supplement, the time of purchase and each additional time of purchase, if any, in all material respects, with the requirements of the Act (in the case of the Prospectus, including, without limitation, Section 10(a) of the Act); as of the date of the Prospectus Supplement, and at the time of purchase and the additional time of purchase, if any, the Prospectus Supplement or the Prospectus, as then amended or supplemented, did not or will not 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; as of the date of such Permitted Free Writing Prospectus and at the time of purchase each Permitted Free Writing Prospectus when taken together as a whole with the Disclosure Package did not or will not 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; each electronic road show when taken together as a whole with the Disclosure Package, does not, as of the date hereof, contain any untrue statement of a material fact or omit to state any material fact necessary in or to make the statements therein, in the light of the circumstances under which they were made, not misleading; each Permitted Free Writing prospectus does not include any information that conflicts with the information contained in the Registration Statement or the Prospectus; each Incorporated Document, at the time such document was filed with the Commission or at the time such document became effective, as applicable, conformed, in all material respects, with the requirements of the Exchange Act and did not 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; provided, however, that the foregoing provisions Partnership makes no representation or warranty in this Section 3(b) with respect to any statement contained in the Registration Statement, any Preliminary Prospectus, the Prospectus, any Permitted Free Writing Prospectus or any Incorporated Document in reliance upon and in conformity with information concerning an Underwriter and furnished in writing by or on behalf of such Underwriter through the Representatives to the Partnership expressly for use in the Registration Statement, such Preliminary Prospectus, the Prospectus, such Permitted Free Writing Prospectus or Incorporated Document;
(c) prior to the execution of this Agreement, the Partnership has not, directly or indirectly, offered or sold any 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 offer or sale of the Units, in each case other than the Preliminary Prospectus or the Permitted Free Writing Prospectus, if any; the Partnership has not, directly or indirectly, prepared, used or referred to any Permitted Free Writing Prospectus except in compliance with Rules 164 and 433 under the Act; the Partnership is not an “ineligible issuer” (as defined in Rule 405 under the Act) as of the eligibility determination date for purposes of Rules 164 and 433 under the Act with respect to the offering of the Units contemplated by the Registration Statement; the parties hereto agree and understand that the content of any and all “road shows” (as defined in Rule 433 under the Act) related to the offering of the Units contemplated hereby is solely the property of the Partnership;
(d) in accordance with Rule 5110(b)(7)(C)(i) of the Financial Industry Regulatory Authority, Inc. (“FINRA”), the Units are registered with the Commission on Form S-3 under the Act pursuant to the standards for such Form S-3 in effect prior to October 21, 1992;
(e) (i) as of the date of this Agreement, the issued and outstanding limited partner interests of the Partnership consist of 94,989,221 Common Units and 39,997 Common Units - Class B (“Class B Units”). The only issued and outstanding general partner interests of the Partnership are the interests of Genesis Energy, LLC, a Delaware limited liability company (the “General Partner”), described in the Partnership Agreement. All of the outstanding Common Units and Class B Units have been duly authorized and validly issued in accordance with applicable Law and the Partnership Agreement and are fully paid (to the extent required by applicable Law and under the Partnership Agreement) and non-assessable (except as such non-assessability may be affected by Sections 17-303, 17-607 and 17-804 of the Delaware Revised Uniform Limited Partnership Act (the “Delaware LP Act”));
(ii) other than the Genesis Energy, Inc. 2007 Long-Term Incentive Plan and the Genesis Energy, L.P. 2010 Long-Term Incentive Plan, the Partnership has no equity compensation plans that contemplate the issuance of Common Units or any other class of equity (or securities convertible into or exchangeable for Common Units or any other class of equity). The Partnership has no outstanding indebtedness having the right to vote (or convertible into or exchangeable for securities having the right to vote) on any matters on which the unitholders of the Partnership (within the meaning of the Partnership Agreement, the “Unitholders”) may vote. Except as set forth in the first sentence of this Section 1.3 will not extend to such statements contained 3(e)(ii) or as disclosed in the Disclosure Package, there are no outstanding or omitted from authorized (A) options, warrants, preemptive rights, subscriptions, calls or other rights, convertible securities, agreements, claims or commitments of any character obligating the Registration Statement or Prospectus as are primarily within the knowledge of the Dealer Manager Partnership or any of its Subsidiaries to issue, transfer or sell any partnership interests or other equity interests in the Dealers Partnership or any of its Subsidiaries or securities convertible into or exchangeable for such partnership interests or other equity interests, (B) obligations of the Partnership or any of its Subsidiaries to repurchase, redeem or otherwise acquire any partnership interests or other equity interests in the Partnership or any of its Subsidiaries or any such securities or agreements listed in clause (A) of this section or (C) voting trusts or similar agreements to which the Partnership or any of its Subsidiaries is a party with respect to the voting of the equity interests of the Partnership or any of its Subsidiaries;
(iii) the Partnership, directly or indirectly, owns (A) 100% of the partnership interests in Genesis Crude Oil, L.P., a Delaware limited partnership (the “Operating Partnership”) (including the General Partner’s ownership of 0.01% of the partnership interests in the Operating Partnership), (B) 100% of the limited partnership interests in each of Genesis Pipeline Texas, L.P., a Delaware limited partnership, Genesis Pipeline USA, L.P., a Delaware limited partnership, Genesis CO2 Pipeline, L.P., a Delaware limited partnership, Genesis Natural Gas Pipeline, L.P., a Delaware limited partnership, and are based upon information furnished by Genesis Syngas Investments, L.P., a Delaware limited partnership (the Dealer Manager “Limited Partnership Subsidiaries”), (C) 90.91% of the equity interests in writing Thunder Basin Holdings, LLC, a Delaware limited liability company (which owns 100% of the equity interests in each of Antelope Refining, LLC, a Delaware limited liability company, and Thunder Basin Pipeline, LLC, a Delaware limited liability company), (D) 100% of the equity interests in each other Subsidiary not listed in clauses (A), (B) or (C) of this Section 3(e)(iii), (E) 50% of the partnership interests in T&P Syngas Supply Company, a Delaware general partnership (“T&P Syngas”), (F) 50% of the outstanding limited liability company interests in Sandhill Group, LLC, a Mississippi limited liability company (“Sandhill”), (G) 50% of the equity interests in Cameron Highway Oil Pipeline Company, a Delaware partnership (“Cameron”), (H) 50% of the equity interests in Southeast Xxxxxxxx Canyon Pipeline Company, L.L.C., a Delaware limited liability company (“Sekco”), (I) 28% of the equity interests in Poseidon Oil Pipeline Company, L.L.C., a Delaware limited liability company (“Poseidon”), and (J) 29% of the equity interests in Odyssey Pipeline L.L.C., a Delaware limited liability company (“Odyssey”), in each case free and clear of any Liens (except for such restrictions as may exist under applicable Law and except for such Liens as may be imposed under the Partnership’s or the Partnership’s Subsidiaries’ credit facilities filed as exhibits to the Partnership specifically SEC Documents (defined below)), and all such ownership interests have been duly authorized and validly issued and are fully paid (to the extent required by applicable Law and the organizational documents of the Partnership’s Subsidiaries, T&P Syngas, Sandhill, Cameron, Sekco, Poseidon and Odyssey, as applicable) and non-assessable (except as non-assessability may be affected by the Delaware Revised Uniform Partnership Act, Sections 17-303, 17-607 and 17-804 of the Delaware LP Act, Sections 18-607 and 18-804 of the Delaware Limited Liability Company Act (the “Delaware LLC Act”) or any analogous statue in the jurisdiction of formation of any Subsidiary and Sandhill, or the organizational documents of the Partnership’s Subsidiaries, T&P Syngas, Sandhill, Cameron, Sekco, Poseidon and Odyssey, as applicable) and free of preemptive rights, with no personal liability attaching to the ownership thereof, and except for inclusion therein.T&P Syngas, Sandhill, Cameron, Sekco, Poseidon and Odyssey neither the Partnership nor any of its Subsidiaries owns directly or indirectly any shares of capital stock or other securities of, or interest in, any other person or entity (other than another Subsidiary), or is obligated to make any capital contribution to or other investment in any other person or entity. Schedule D attached hereto contains a complete and accurate list of all of the Partnership’s “significant subsidiaries” (as defined in Rule 405 under the Act);
1.4 The (iv) the General Partner is the sole general partner of the Partnership intends and each Limited Partnership Subsidiary, with a non-economic general partner interest in the Partnership and a non-economic general partner interest in each Limited Partnership Subsidiary. Such general partner interests have been duly authorized and validly issued in accordance with applicable Law, the Partnership Agreement and the partnership agreements of each Limited Partnership Subsidiary and are fully paid (to use the funds received from extent required by applicable Law and under the Partnership Agreement and the partnership agreements of each Limited Partnership Subsidiary) and non assessable (except as such non assessability may be affected by Sections 17-303, 17-607 and 17-804 of the Delaware LP Act);
(v) the offer and sale of the Units and the limited partner interests represented thereby have been duly authorized by the Partnership pursuant to the Partnership Agreement and, when issued and delivered against payment therefor in accordance with the terms of this Agreement, will be validly issued, fully paid (to the extent required by applicable Law and the Partnership Agreement) and non-assessable (except as such non-assessability may be affected by Sections 17-303, 17-607 and 17-804 of the Delaware LP Act) and will be free and clear of all Liens and restrictions on transfer other than those restrictions on transfer in the Partnership Agreement and applicable state and federal securities Laws and other such Liens as are created by the Underwriters;
(vii) the Firm Units have been or will be, as the case may be, issued in compliance with all applicable rules of the Primary Stock Exchange. Prior to the closing of the sale of the Firm Units, the Partnership will complete its additional listing application to the Primary Stock Exchange with respect to the Units and such Units will be duly listed and admitted and authorized for trading, subject to official notice of issuance;
(viii) the Partnership’s currently outstanding Common Units are listed on the Primary Stock Exchange and the Partnership has not received any notice of delisting;
(ix) the Firm Units shall have those rights, preferences, privileges and restrictions governing the Common Units as set forth in the Prospectus.
1.5 No consentPartnership Agreement. A true and correct copy of the Partnership Agreement, approvalas amended through the date hereof, authorization or other order of any governmental authority is required in connection with the execution or delivery has been filed by the Partnership of this Agreement or with the issuance and sale by the Partnership of the UnitsCommission on January 3, except such 2011, as may be required under the Securities Act or applicable state securities laws.
1.6 There are no actions, suits or proceedings pending or Exhibit 3.1 to the knowledge of the Partnership, threatened against the Partnership at law or in equity or before or by any federal or state commission, regulatory body or administrative agency or other governmental body, domestic or foreign, which will have a material adverse effect ’s Current Report on the business or property of the Partnership.
1.7 The execution and delivery of this Agreement, the consummation of the transactions herein contemplated and compliance with the terms of this Agreement by the Partnership will not conflict with or constitute a default under any charter, bylaw, indenture, mortgage, deed of trust, lease, rule, regulation, writ, injunction or decree of any government, governmental instrumentality or court, domestic or foreign, having jurisdiction over the Partnership, except to the extent that the enforceability of the indemnity and/or contribution provisions contained in Section 4 of this Agreement may be limited under applicable securities laws.
1.8 The Partnership has full legal right, power and authority to enter into this Agreement and to perform the transactions contemplated hereby, except to the extent that the enforceability of the indemnity and/or contribution provisions contained in Section 4 of this Agreement may be limited under applicable securities laws.
1.9 At the time of the issuance of the Units, the Units will have been duly authorized and validly issued, and upon payment therefor, will be fully paid and nonassessable and will conform to the description thereof contained in the Prospectus, subject to the requirement that the limited partners do not participate in the management or control of the business of the Partnership.Form 8-K.
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES OF THE PARTNERSHIP. The Partnership represents and warrants to and agrees with each of the Dealer Manager and each dealer with whom the Dealer Manager has entered into or will enter into a Selected Dealer Agreement in the form attached to this Agreement as Exhibit A (said dealers being hereinafter called the "Dealers") Underwriters that:
1.1 A registration statement (a) the Registration Statement has heretofore become effective under the Act or, with respect to any registration statement to be filed to register the Partnership offer and sale of Units pursuant to Rule 462(b) under the Act, will be filed with the Commission and become effective under the Act no later than 10:00 P.M., New York City time, on the date of determination of the public offering price for the Units; no stop order of the Commission preventing or suspending the use of any Basic Prospectus, any Preliminary Prospectus, the Prospectus Supplement, the Prospectus or any Permitted Free Writing Prospectus, or the effectiveness of the Registration Statement, has been prepared issued, and no proceedings for such purpose have been instituted or, to the Partnership’s knowledge, are contemplated by the Partnership Commission;
(b) the Registration Statement conformed when it became effective, conforms as of the date hereof and, as amended or supplemented, at the time of purchase and each additional time of purchase, if any, will conform, in accordance all material respects, with applicable the requirements of the Securities Act Act; the conditions to the use of 1933, Form S-3 in connection with the offering and sale of the Units as amended (contemplated hereby have been satisfied; the "Securities Act")Registration Statement meets, and the applicable rules offering and regulations (the "Rules and Regulations") sale of the Securities and Exchange Commission (Units as contemplated hereby conforms with, the "SEC") promulgated thereunder, covering requirements of Rule 415 under the Units. Such registration statement, which includes a preliminary prospectus, was initially filed with Act; the SEC on or about September 27, 2002. Copies of such registration statement and each amendment thereto have been or will be delivered to the Dealer Manager. (The registration statement and prospectus contained thereinRegistration Statement did not, as finally amended and revised at the effective date of the registration statementEffective Time, are respectively hereinafter referred to as the "Registration Statement" and the "Prospectus," except that if the Prospectus first filed by the Partnership pursuant to Rule 424(b) under the Securities Act shall differ from the Prospectus, the term "Prospectus" shall also include the Prospectus filed pursuant to Rule 424(b).)
1.2 The Partnership has been duly and validly organized and formed as contain an untrue statement of a limited partnership under the laws of the state of Texas, with the power and authority to conduct its business as described in the Prospectus.
1.3 The Registration Statement and Prospectus comply with the Securities Act and the Rules and Regulations and do not contain any untrue statements of material facts fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein not misleading; each Preliminary Prospectus conformed or will conform in all material respects with the requirements from the Act as of the date hereof, at the time it was filed with the Commission, as of the date of such Preliminary Prospectus and at the time of purchase and each additional time of purchase, if any; the Disclosure Package did not, as of the Applicable Time, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein therein, in the light of the circumstances under which they were made, not misleading; each Basic Prospectus conformed or will conform, as of its date and at the time of purchase and each additional time of purchase, if any, in all material respects, with the requirements of the Act; each of the Prospectus Supplement and the Prospectus will conform, as of the date that it is filed with the Commission, the date of the Prospectus Supplement, the time of purchase and each additional time of purchase, if any, in all material respects, with the requirements of the Act (in the case of the Prospectus, including, without limitation, Section 10(a) of the Act); as of the date of the Prospectus Supplement, and at the time of purchase and the additional time of purchase, if any, each Prospectus Supplement or the Prospectus, as then amended or supplemented, did not or will not 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; as of the date of such Permitted Free Writing Prospectus and at the time of purchase each Permitted Free Writing Prospectus when taken together as a whole with the Disclosure Package did not or will not 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; each electronic road show when taken together as a whole with the Disclosure Package, does not, as of the date hereof, contain any untrue statement of a material fact or omit to state any material fact necessary in or to make the statements therein, in the light of the circumstances under which they were made, not misleading; each Permitted Free Writing prospectus does not include any information that conflicts with the information contained in the Registration Statement or the Prospectus; each Incorporated Document, at the time such document was filed with the Commission or at the time such document became effective, as applicable, conformed, in all material respects, with the requirements of the Exchange Act and did not 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; provided, however, that the foregoing provisions Partnership makes no representation or warranty in this Section 3(b) with respect to any statement contained in the Registration Statement, any Preliminary Prospectus, the Prospectus, any Permitted Free Writing Prospectus or any Incorporated Document in reliance upon and in conformity with information concerning an Underwriter and furnished in writing by or on behalf of such Underwriter through the Representatives expressly for use in the Registration Statement, such Preliminary Prospectus, the Prospectus, such Permitted Free Writing Prospectus or Incorporated Document;
(c) prior to the execution of this Agreement, the Partnership has not, directly or indirectly, offered or sold any 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 offer or sale of the Units, in each case other than the Preliminary Prospectus or the Permitted Free Writing Prospectus, if any; the Partnership has not, directly or indirectly, prepared, used or referred to any Permitted Free Writing Prospectus except in compliance with Rules 164 and 433 under the Act; the Partnership is not an “ineligible issuer” (as defined in Rule 405 under the Act) as of the eligibility determination date for purposes of Rules 164 and 433 under the Act with respect to the offering of the Units contemplated by the Registration Statement; the parties hereto agree and understand that the content of any and all “road shows” (as defined in Rule 433 under the Act) related to the offering of the Units contemplated hereby is solely the property of the Partnership;
(d) in accordance with Rule 5110(b)(7)(C)(i) of the Financial Industry Regulatory Authority, Inc. (“FINRA”), the Units are registered with the Commission on Forms S-3 under the Act pursuant to the standards for such Form S-3 in effect prior to October 21, 1992;
(e) (i) as of the date of this Agreement, the issued and outstanding limited partner interests of the Partnership consist of 39,585,692 Common Units and the incentive distribution rights in the Partnership (as defined in the Partnership Agreement, the “Incentive Distribution Rights”), and all of the Incentive Distribution Rights are owned by Genesis Energy, LLC, a Delaware limited liability company (the “General Partner”). The only issued and outstanding general partner interests of the Partnership are the interests of the General Partner described in the Partnership Agreement. All of the outstanding Common Units and Incentive Distribution Rights have been duly authorized and validly issued in accordance with applicable Law and the Partnership Agreement and are fully paid (to the extent required by applicable Law and under the Partnership Agreement) and non assessable (except as such non assessability may be affected by Sections 17-303, 17-607 and 17-804 of the Delaware Revised Uniform Limited Partnership Act (the “Delaware LP Act”));
(ii) other than the Genesis Energy, Inc. 2007 Long-Term Incentive Plan, the Partnership has no equity compensation plans that contemplate the issuance of Common Units or any other class of equity (or securities convertible into or exchangeable for Common Units or any other class of equity). The Partnership has no outstanding indebtedness having the right to vote (or convertible into or exchangeable for securities having the right to vote) on any matters on which the unitholders of the Partnership (within the meaning of the Partnership Agreement, the “Unitholders”) may vote. Except as set forth in the first sentence of this Section 1.3 will not extend to such statements contained 3(e)(ii) or as disclosed in the Disclosure Package, there are no outstanding or omitted from authorized (A) options, warrants, preemptive rights, subscriptions, calls or other rights, convertible securities, agreements, claims or commitments of any character obligating the Registration Statement or Prospectus as are primarily within the knowledge of the Dealer Manager Partnership or any of its Subsidiaries to issue, transfer or sell any partnership interests or other equity interests in the Dealers Partnership or any of its Subsidiaries or securities convertible into or exchangeable for such partnership interests or other equity interests, (B) obligations of the Partnership or any of its Subsidiaries to repurchase, redeem or otherwise acquire any partnership interests or other equity interests in the Partnership or any of its Subsidiaries or any such securities or agreements listed in clause (A) of this section or (C) voting trusts or similar agreements to which the Partnership or any of its Subsidiaries is a party with respect to the voting of the equity interests of the Partnership or any of its Subsidiaries;
(iii) prior to giving effect to the Cameron Acquisition, the Partnership, directly or indirectly, owns (A) 99.99% of the partnership interests in Genesis Crude Oil, L.P., a Delaware limited partnership (the “Operating Partnership”) (and are based upon information furnished by the Dealer Manager General Partner owns 0.01% of the partnership interests in writing the Operating Partnership), (B) 100% of the limited partnership interests in each of Genesis Pipeline Texas, L.P., a Delaware limited partnership, Genesis Pipeline USA, L.P., a Delaware limited partnership, Genesis CO2 Pipeline, L.P., a Delaware limited partnership, Genesis Natural Gas Pipeline, L.P., a Delaware limited partnership, and Genesis Syngas Investments, L.P., a Delaware limited partnership (the “Limited Partnership Subsidiaries”), (C) 100% of the equity interests in each other Subsidiary not listed in clauses (A) or (B) of this Section 3(e)(iii), (including 100% of the equity interests in DG Marine Transportation, LLC, a Delaware limited liability company (“DG Marine”)), (D) 50% of the partnership interests in T&P Syngas Supply Company, a Delaware general partnership (“T&P Syngas”), (E) 50% of the outstanding limited liability company interests of Sandhill Group, LLC, a Mississippi limited liability company (“Sandhill”), and (F) 5.7% of the limited liability company interest in Fxxxxxxx Hydrogen Products, LLC, a Delaware limited liability company (“Fxxxxxxx”), in each case free and clear of any Liens (except for such restrictions as may exist under applicable Law and except for such Liens as may be imposed under the Partnership’s or the Partnership’s Subsidiaries’ credit facilities filed as exhibits to the Partnership specifically SEC Documents (defined below), and all such ownership interests have been duly authorized and validly issued and are fully paid (to the extent required by applicable Law and the organizational documents of the Partnership’s Subsidiaries, T&P Syngas, Sandhill and Fxxxxxxx, as applicable) and non-assessable (except as non-assessability may be affected by Sections 17-303, 17-607 and 17-804 of the Delaware LP Act, Sections 18-607 and 18-804 of the Delaware Limited Liability Company Act (the “Delaware LLC Act”) (in the case of Sandhill and Fxxxxxxx) or any analogous statue in the jurisdiction of formation of any Subsidiary, or the organizational documents of the Partnership’s Subsidiaries, T&P Syngas, Sandhill and Fxxxxxxx, as applicable) and free of preemptive rights, with no personal liability attaching to the ownership thereof, and except for inclusion therein.T&P Syngas, Sandhill and Fxxxxxxx, neither the Partnership nor any of its Subsidiaries owns directly or indirectly any shares of capital stock or other securities of, or interest in, any other person or entity (other than another Subsidiary), or is obligated to make any capital contribution to or other investment in any other person or entity. Schedule D attached hereto contains a complete and accurate list of all of the Partnership’s “significant subsidiaries” (as defined in Rule 405 under the Act);
1.4 The (iv) the General Partner is the sole general partner of the Partnership intends and each Limited Partnership Subsidiary, with a 2% general partner interest in the Partnership and a non-economic general partner interest in each Limited Partnership Subsidiary. Such general partner interests have been duly authorized and validly issued in accordance with applicable Law, the Partnership Agreement and the partnership agreements of each Limited Partnership Subsidiary and are fully paid (to use the funds received from extent required by applicable Law and under the Partnership Agreement and the partnership agreements of each Limited Partnership Subsidiary) and non assessable (except as such non assessability may be affected by Sections 17-303, 17-607 and 17-804 of the Delaware LP Act);
(v) the offer and sale of the Firm Units and the limited partner interests represented thereby has been duly authorized by the Partnership pursuant to the Partnership Agreement and, when issued and delivered to the Purchasers against payment therefor in accordance with the terms of this Agreement, will be validly issued, fully paid (to the extent required by applicable Law and the Partnership Agreement) and non-assessable (except as such non-assessability may be affected by Sections 17-303, 17-607 and 17-804 of the Delaware LP Act) and will be free of any and all Liens and restrictions on transfer other than those restrictions on transfer under the Partnership Agreement and applicable state and federal securities Laws and other such Liens as are created by the Underwriters;
(vii) the Firm Units will be issued in compliance with all applicable rules of the Primary Stock Exchange. Prior to the closing of the sale of the Firm Units, the Partnership will complete its additional listing application to the Primary Stock Exchange with respect to the Units;
(viii) the Partnership’s currently outstanding Common Units are listed on the Primary Stock Exchange and the Partnership has not received any notice of delisting;
(ix) the Firm Units shall have those rights, preferences, privileges and restrictions governing the Common Units as set forth in the Prospectus.
1.5 No consentPartnership Agreement. A true and correct copy of the Partnership Agreement, approvalas amended through the date hereof, authorization or other order of any governmental authority is required in connection with the execution or delivery has been filed by the Partnership of this Agreement or with the issuance Commission on June 15, 2005 as Exhibit 10.1 to the Partnership’s Current Report on Form 8-K, as amended by Amendment No. 1 and sale Amendment No. 2 to the Partnership Agreement, filed by the Partnership of with the UnitsCommission on March 17, except such 2008 as may be required under the Securities Act or applicable state securities laws.
1.6 There are no actions, suits or proceedings pending or Exhibit 3.3 to the knowledge of Partnership’s Annual Report on Form 10-K for the year ended December 31, 2008 and on March 5, 2010 as Exhibit 10.2 to the Partnership’s Current Report on Form 8-K, threatened against the Partnership at law or in equity or before or by any federal or state commission, regulatory body or administrative agency or other governmental body, domestic or foreign, which will have a material adverse effect on the business or property of the Partnership.
1.7 The execution and delivery of this Agreement, the consummation of the transactions herein contemplated and compliance with the terms of this Agreement by the Partnership will not conflict with or constitute a default under any charter, bylaw, indenture, mortgage, deed of trust, lease, rule, regulation, writ, injunction or decree of any government, governmental instrumentality or court, domestic or foreign, having jurisdiction over the Partnership, except to the extent that the enforceability of the indemnity and/or contribution provisions contained in Section 4 of this Agreement may be limited under applicable securities laws.
1.8 The Partnership has full legal right, power and authority to enter into this Agreement and to perform the transactions contemplated hereby, except to the extent that the enforceability of the indemnity and/or contribution provisions contained in Section 4 of this Agreement may be limited under applicable securities laws.
1.9 At the time of the issuance of the Units, the Units will have been duly authorized and validly issued, and upon payment therefor, will be fully paid and nonassessable and will conform to the description thereof contained in the Prospectus, subject to the requirement that the limited partners do not participate in the management or control of the business of the Partnership.respectively; and
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES OF THE PARTNERSHIP. The Partnership represents and warrants to and agrees with each of the Dealer Manager and each dealer with whom the Dealer Manager has entered into or will enter into a Selected Dealer Agreement in the form attached to this Agreement as Exhibit A (said dealers being hereinafter called the "Dealers") Underwriters that:
1.1 A registration statement (a) the Registration Statement has heretofore become effective under the Act or, with respect to any registration statement to be filed to register the Partnership offer and sale of Units pursuant to Rule 462(b) under the Act, will be filed with the Commission and become effective under the Act no later than 10:00 p.m., New York City time, on the date of determination of the public offering price for the Units; no stop order of the Commission preventing or suspending the use of the Basic Prospectus, any Preliminary Prospectus, the Prospectus Supplement, the Prospectus or any Permitted Free Writing Prospectus, or the effectiveness of the Registration Statement, has been prepared issued, and no proceedings for such purpose have been instituted or, to the Partnership’s knowledge, are contemplated by the Partnership Commission;
(b) the Registration Statement conformed when it became effective, conforms as of the date hereof and, as amended or supplemented, at the time of purchase and each additional time of purchase, if any, will conform, in accordance all material respects, with applicable the requirements of the Securities Act Act; the conditions to the use of 1933, Form S-3 in connection with the offering and sale of the Units as amended (contemplated hereby have been satisfied; the "Securities Act")Registration Statement meets, and the applicable rules offering and regulations (the "Rules and Regulations") sale of the Securities and Exchange Commission (Units as contemplated hereby conforms with, the "SEC") promulgated thereunder, covering requirements of Rule 415 under the Units. Such registration statement, which includes a preliminary prospectus, was initially filed with Act; the SEC on or about September 27, 2002. Copies of such registration statement and each amendment thereto have been or will be delivered to the Dealer Manager. (The registration statement and prospectus contained thereinRegistration Statement did not, as finally amended and revised at the effective date of the registration statementEffective Time, are respectively hereinafter referred to as the "Registration Statement" and the "Prospectus," except that if the Prospectus first filed by the Partnership pursuant to Rule 424(b) under the Securities Act shall differ from the Prospectus, the term "Prospectus" shall also include the Prospectus filed pursuant to Rule 424(b).)
1.2 The Partnership has been duly and validly organized and formed as contain an untrue statement of a limited partnership under the laws of the state of Texas, with the power and authority to conduct its business as described in the Prospectus.
1.3 The Registration Statement and Prospectus comply with the Securities Act and the Rules and Regulations and do not contain any untrue statements of material facts fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein not misleading; each Preliminary Prospectus conformed or will conform in all material respects with the requirements from the Act as of the date hereof, at the time it was filed with the Commission, as of the date of such Preliminary Prospectus and at the time of purchase and each additional time of purchase, if any; the Disclosure Package did not, as of the Applicable Time, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein therein, in the light of the circumstances under which they were made, not misleading; the Basic Prospectus conformed or will conform, as of its date and at the time of purchase and each additional time of purchase, if any, in all material respects, with the requirements of the Act; each of the Prospectus Supplement and the Prospectus will conform, as of the date that it is filed with the Commission, the date of the Prospectus Supplement, the time of purchase and each additional time of purchase, if any, in all material respects, with the requirements of the Act (in the case of the Prospectus, including, without limitation, Section 10(a) of the Act); as of the date of the Prospectus Supplement, and at the time of purchase and the additional time of purchase, if any, the Prospectus Supplement or the Prospectus, as then amended or supplemented, did not or will not 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; as of the date of such Permitted Free Writing Prospectus and at the time of purchase each Permitted Free Writing Prospectus when taken together as a whole with the Disclosure Package did not or will not 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; each electronic road show when taken together as a whole with the Disclosure Package, does not, as of the date hereof, contain any untrue statement of a material fact or omit to state any material fact necessary in or to make the statements therein, in the light of the circumstances under which they were made, not misleading; each Permitted Free Writing Prospectus does not include any information that conflicts with the information contained in the Registration Statement or the Prospectus; each Incorporated Document, at the time such document was filed with the Commission or at the time such document became effective, as applicable, conformed, in all material respects, with the requirements of the Exchange Act and did not 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; provided, however, that the foregoing provisions Partnership makes no representation or warranty in this Section 3(b) with respect to any statement contained in the Registration Statement, any Preliminary Prospectus, the Prospectus, any Permitted Free Writing Prospectus or any Incorporated Document in reliance upon and in conformity with information concerning an Underwriter and furnished in writing by or on behalf of such Underwriter to the Partnership expressly for use in the Registration Statement, such Preliminary Prospectus, the Prospectus, such Permitted Free Writing Prospectus or Incorporated Document;
(c) prior to the execution of this Agreement, the Partnership has not, directly or indirectly, offered or sold any 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 offer or sale of the Units, in each case other than the Preliminary Prospectus or the Permitted Free Writing Prospectus, if any; the Partnership has not, directly or indirectly, prepared, used or referred to any Permitted Free Writing Prospectus except in compliance with Rules 164 and 433 under the Act; the Partnership is not an “ineligible issuer” (as defined in Rule 405 under the Act) as of the eligibility determination date for purposes of Rules 164 and 433 under the Act with respect to the offering of the Units contemplated by the Registration Statement; the parties hereto agree and understand that the content of any and all “road shows” (as defined in Rule 433 under the Act) related to the offering of the Units contemplated hereby is solely the property of the Partnership;
(d) in accordance with Rule 5110(b)(7)(C)(i) of the Financial Industry Regulatory Authority, Inc. (“FINRA”), the Units are registered with the Commission on Form S-3 under the Act pursuant to the standards for such Form S-3 in effect prior to October 21, 1992;
(e) (i) as of the date of this Agreement, the issued and outstanding limited partner interests of the Partnership consist of 117,939,221 Common Units and 39,997 Common Units — Class B (“Class B Units”). The only issued and outstanding general partner interests of the Partnership are the interests of Genesis Energy, LLC, a Delaware limited liability company (the “General Partner”), described in the Partnership Agreement. All of the outstanding Common Units and Class B Units have been duly authorized and validly issued in accordance with applicable Law and the Partnership Agreement and are fully paid (to the extent required by applicable Law and under the Partnership Agreement) and non-assessable (except as such non-assessability may be affected by Sections 17-303, 17-607 and 17-804 of the Delaware Revised Uniform Limited Partnership Act (the “Delaware LP Act”));
(ii) other than the Genesis Energy, Inc. 2007 Long-Term Incentive Plan and the Genesis Energy, L.P. 2010 Long-Term Incentive Plan, the Partnership has no equity compensation plans that contemplate the issuance of Common Units or any other class of equity (or securities convertible into or exchangeable for Common Units or any other class of equity). The Partnership has no outstanding indebtedness having the right to vote (or convertible into or exchangeable for securities having the right to vote) on any matters on which the unitholders of the Partnership (within the meaning of the Partnership Agreement, the “Unitholders”) may vote. Except as set forth in the first sentence of this Section 1.3 will not extend to such statements contained 3(e)(ii) or as disclosed in the Disclosure Package, there are no outstanding or omitted from authorized (A) options, warrants, preemptive rights, subscriptions, calls or other rights, convertible securities, agreements, claims or commitments of any character obligating the Registration Statement or Prospectus as are primarily within the knowledge of the Dealer Manager Partnership or any of its Subsidiaries to issue, transfer or sell any partnership interests or other equity interests in the Dealers Partnership or any of its Subsidiaries or securities convertible into or exchangeable for such partnership interests or other equity interests, (B) obligations of the Partnership or any of its Subsidiaries to repurchase, redeem or otherwise acquire any partnership interests or other equity interests in the Partnership or any of its Subsidiaries or any such securities or agreements listed in clause (A) of this section or (C) voting trusts or similar agreements to which the Partnership or any of its Subsidiaries is a party with respect to the voting of the equity interests of the Partnership or any of its Subsidiaries;
(iii) the Partnership, directly or indirectly, owns (A) 100% of the partnership interests in Genesis Crude Oil, L.P., a Delaware limited partnership (the “Operating Partnership”) (including the General Partner’s ownership of 0.01% of the partnership interests in the Operating Partnership), (B) 100% of the partnership interests in each of Genesis Pipeline Texas, L.P., a Delaware limited partnership, Genesis Pipeline USA, L.P., a Delaware limited partnership, Genesis CO2 Pipeline, L.P., a Delaware limited partnership, and are based upon information furnished by Genesis Syngas Investments, L.P., a Delaware limited partnership (the Dealer Manager “Limited Partnership Subsidiaries”) (including the General Partner’s ownership of 0.01% of the partnership interests in writing each Limited Partnership Subsidiary), (C) 100% of the equity interests in each other Subsidiary not listed in clauses (A) and (B) of this Section 3(e)(iii), (D) 50% of the partnership interests in T&P Syngas Supply Company, a Delaware general partnership (“T&P Syngas”), (E) 50% of the outstanding limited liability company interests in Sandhill Group, L.L.C., a Mississippi limited liability company (“Sandhill”), (F) 64% of the equity interests in Poseidon Oil Pipeline Company, L.L.C., a Delaware limited liability company (“Poseidon”), (G) 29% of the equity interests in Odyssey Pipeline L.L.C., a Delaware limited liability company (“Odyssey”), (H) 80% of the equity interests in Independence Hub, LLC, a Delaware limited liability company (“Independence Hub”), and (I) 25.67% of the equity interests in Neptune Pipeline Company, L.L.C., a Delaware limited liability company (“Neptune”) (which as of the date of this Agreement owns 100% of the equity interests in each of Nautilus Pipeline Company, L.L.C., a Delaware limited liability company (“Nautilus”), and Manta Ray Offshore Gathering Company, L.L.C., a Delaware limited liability company (“Manta Ray Offshore”) (which as of the date of this Agreement owns 50% of the equity interests in Atlantis Offshore, LLC, a Delaware limited liability company (“Atlantis”))), in each case free and clear of any Liens (except for such restrictions as may exist under applicable Law and except for such Liens as may be imposed under the Partnership’s or the Partnership’s Subsidiaries’ credit facilities filed as exhibits to the Partnership specifically SEC Documents (defined below) or that certain Revolving Credit Agreement, dated as of February 27, 2015, by and among the Company, Xxxxx Fargo Bank, National Association, as Administrative Agent, Issuing Bank and Swingline Lender, DNB Markets, Inc., MUFG Union Bank, N.A. and Mizuho Bank, Ltd., as Co-Syndication Agents, Sumitomo Mitsui Banking Corporation, as Documentation Agent and each of the lenders party thereto (as amended, modified, supplemented or restated from time to time, the “Poseidon Credit Agreement”)), and all such ownership interests have been duly authorized and validly issued and are fully paid (to the extent required by applicable Law and the organizational documents of the Partnership’s Subsidiaries, T&P Syngas, Sandhill, Poseidon, Odyssey, Independence Hub, Neptune, Nautilus, Manta Ray Offshore and Atlantis, as applicable) and non-assessable (except as non-assessability may be affected by the Delaware Revised Uniform Partnership Act, Sections 17-303, 17-607 and 17-804 of the Delaware LP Act, Sections 18-607 and 18-804 of the Delaware Limited Liability Company Act (the “Delaware LLC Act”) or any analogous statute in the jurisdiction of formation of any Subsidiary and Sandhill, or the organizational documents of the Partnership’s Subsidiaries, T&P Syngas, Sandhill, Poseidon, Odyssey, Independence Hub, Neptune, Nautilus, Manta Ray Offshore and Atlantis, as applicable) and free of preemptive rights, with no personal liability attaching to the ownership thereof, and except for inclusion therein.T&P Syngas, Sandhill, Poseidon, Odyssey, Independence Hub, Neptune, Nautilus, Manta Ray Offshore and Atlantis neither the Partnership nor any of its Subsidiaries owns directly or indirectly any shares of capital stock or other securities of, or interest in, any other person or entity (other than another Subsidiary), or is obligated to make any capital contribution to or other investment in any other person or entity. Schedule D attached hereto contains a complete and accurate list of all of the Partnership’s “significant subsidiaries” (as defined in Rule 405 under the Act);
1.4 The (iv) the General Partner is the sole general partner of the Partnership intends and each Limited Partnership Subsidiary, with a non-economic general partner interest in the Partnership and a non-economic general partner interest in each Limited Partnership Subsidiary. Such general partner interests have been duly authorized and validly issued in accordance with applicable Law, the Partnership Agreement and the partnership agreements of each Limited Partnership Subsidiary and are fully paid (to use the funds received from extent required by applicable Law and under the Partnership Agreement and the partnership agreements of each Limited Partnership Subsidiary) and non-assessable (except as such non-assessability may be affected by Sections 17-303, 17-607 and 17-804 of the Delaware LP Act);
(v) the offer and sale of the Units and the limited partner interests represented thereby have been duly authorized by the Partnership pursuant to the Partnership Agreement and, when issued and delivered against payment therefor in accordance with the terms of this Agreement, will be validly issued, fully paid (to the extent required by applicable Law and the Partnership Agreement) and non-assessable (except as such non-assessability may be affected by Sections 17-303, 17-607 and 17-804 of the Delaware LP Act) and will be free and clear of all Liens and restrictions on transfer other than those restrictions on transfer in the Partnership Agreement and applicable state and federal securities Laws and other such Liens as are created by the Underwriters;
(vii) the Firm Units have been or will be, as the case may be, issued in compliance with all applicable rules of the Primary Stock Exchange. Prior to the closing of the sale of the Firm Units, the Partnership will complete its additional listing application to the Primary Stock Exchange with respect to the Units and such Units will be duly listed and admitted and authorized for trading, subject to official notice of issuance;
(viii) the Partnership’s currently outstanding Common Units are listed on the Primary Stock Exchange and the Partnership has not received any notice of delisting;
(ix) the Firm Units shall have those rights, preferences, privileges and restrictions governing the Common Units as set forth in the Prospectus.
1.5 No consentPartnership Agreement. A true and correct copy of the Partnership Agreement, approvalas amended through the date hereof, authorization or other order of any governmental authority is required in connection with the execution or delivery has been filed by the Partnership of this Agreement or with the issuance and sale by the Partnership of the UnitsCommission on January 3, except such 2011, as may be required under the Securities Act or applicable state securities laws.
1.6 There are no actions, suits or proceedings pending or Exhibit 3.1 to the knowledge of the Partnership, threatened against the Partnership at law or in equity or before or by any federal or state commission, regulatory body or administrative agency or other governmental body, domestic or foreign, which will have a material adverse effect ’s Current Report on the business or property of the Partnership.
1.7 The execution and delivery of this Agreement, the consummation of the transactions herein contemplated and compliance with the terms of this Agreement by the Partnership will not conflict with or constitute a default under any charter, bylaw, indenture, mortgage, deed of trust, lease, rule, regulation, writ, injunction or decree of any government, governmental instrumentality or court, domestic or foreign, having jurisdiction over the Partnership, except to the extent that the enforceability of the indemnity and/or contribution provisions contained in Section 4 of this Agreement may be limited under applicable securities laws.
1.8 The Partnership has full legal right, power and authority to enter into this Agreement and to perform the transactions contemplated hereby, except to the extent that the enforceability of the indemnity and/or contribution provisions contained in Section 4 of this Agreement may be limited under applicable securities laws.
1.9 At the time of the issuance of the Units, the Units will have been duly authorized and validly issued, and upon payment therefor, will be fully paid and nonassessable and will conform to the description thereof contained in the Prospectus, subject to the requirement that the limited partners do not participate in the management or control of the business of the Partnership.Form 8-K.
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES OF THE PARTNERSHIP. The Partnership represents to Parent that as of the date hereof and warrants to the Dealer Manager and each dealer with whom date of issuance of the Dealer Manager has entered into or will enter into a Selected Dealer Agreement in the form attached to this Agreement as Exhibit A (said dealers being hereinafter called the "Dealers") thatCommon Units pursuant hereto:
1.1 A registration statement with respect (a) The Common Units to be issued hereunder and sold to Parent are duly authorized and, when issued and delivered against payment therefor as provided herein, will be validly issued, fully paid and non-assessable (except as non-assessability may be affected by certain provisions of the Delaware Revised Uniform Limited Partnership Act).
(b) Since July 31, 2000, (i) the Partnership has been prepared made all filings required to be made by the Partnership in accordance with applicable requirements of the Securities Act and the Securities Exchange Act of 19331934, as amended (the "Securities Exchange Act"), ; (ii) all filings by the Partnership with the Securities and the applicable rules and regulations Exchange Commission (the "Rules and RegulationsSEC"), at the time filed (in the case of documents filed pursuant to the Exchange Act) of or when declared effective by the Securities and Exchange Commission (the "SEC") promulgated thereunder, covering (in the Units. Such case of registration statement, which includes a preliminary prospectus, was initially statements filed with the SEC on or about September 27, 2002. Copies of such registration statement and each amendment thereto have been or will be delivered to the Dealer Manager. (The registration statement and prospectus contained therein, as finally amended and revised at the effective date of the registration statement, are respectively hereinafter referred to as the "Registration Statement" and the "Prospectus," except that if the Prospectus first filed by the Partnership pursuant to Rule 424(b) under the Securities Act shall differ from the Prospectus, the term "Prospectus" shall also include the Prospectus filed pursuant to Rule 424(b).)
1.2 The Partnership has been duly and validly organized and formed as a limited partnership under the laws of the state of Texas, Act) complied in all material respects with the power and authority to conduct its business as described in the Prospectus.
1.3 The Registration Statement and Prospectus comply with applicable requirements of the Securities Act and the Rules and Regulations and do not contain Exchange Act; (iii) no such filing, at the time described above, contained any untrue statements statement of a material facts fact or omit omitted to state any material fact required to be stated therein or necessary in order to make the statements therein contained therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the foregoing provisions of this Section 1.3 will not extend to such and (iv) all financial statements contained or incorporated by reference therein complied as to form when filed or, if applicable, as restated, in or omitted from all material respects with the Registration Statement or Prospectus as are primarily within the knowledge rules and regulations of the Dealer Manager or any of SEC with respect thereto, were prepared in accordance with United States generally accepted accounting principles applied on a consistent basis throughout the Dealers and are based upon information furnished by the Dealer Manager in writing to the Partnership specifically for inclusion therein.
1.4 The Partnership intends to use the funds received from the sale of the Units as set forth in the Prospectus.
1.5 No consent, approval, authorization or other order of any governmental authority is required in connection with the execution or delivery by the Partnership of this Agreement or the issuance and sale by the Partnership of the Units, periods involved (except such as may be required under indicated in the Securities Act or applicable state securities laws.
1.6 There are no actionsnotes thereto), suits or proceedings pending or to and fairly presented in all material respects the knowledge financial condition and results of operations of the PartnershipPartnership and its subsidiaries, threatened against the Partnership as applicable, at law or in equity or before or by any federal or state commission, regulatory body or administrative agency or other governmental body, domestic or foreign, which will have a material adverse effect on the business or property and as of the Partnership.
1.7 The execution respective dates thereof and delivery the consolidated results of this Agreement, its operations and changes in cash flows for the consummation of the transactions herein contemplated and compliance with the terms of this Agreement by the Partnership will not conflict with or constitute a default under any charter, bylaw, indenture, mortgage, deed of trust, lease, rule, regulation, writ, injunction or decree of any government, governmental instrumentality or court, domestic or foreign, having jurisdiction over the Partnership, except to the extent that the enforceability of the indemnity and/or contribution provisions contained in Section 4 of this Agreement may be limited under applicable securities laws.
1.8 The Partnership has full legal right, power and authority to enter into this Agreement and to perform the transactions contemplated hereby, except to the extent that the enforceability of the indemnity and/or contribution provisions contained in Section 4 of this Agreement may be limited under applicable securities laws.
1.9 At the time of the issuance of the Units, the Units will have been duly authorized and validly issued, and upon payment therefor, will be fully paid and nonassessable and will conform to the description thereof contained periods indicated (subject in the Prospectuscase of unaudited statements, subject to the requirement that the limited partners do not participate in the management or control of the business of the Partnershipnormal year-end audit adjustments).
Appears in 1 contract
Samples: Contribution Agreement (Ferrellgas Partners Finance Corp)
REPRESENTATIONS AND WARRANTIES OF THE PARTNERSHIP. The Partnership represents and warrants to the Dealer Manager Distributor and each dealer selling agent (the “Selling Agents”) with whom the Dealer Manager Distributor has entered into or will enter into a Selected Dealer Selling Agent Agreement in the form attached to this Agreement as Exhibit A (said dealers being hereinafter called the "Dealers") that:
1.1 a. A registration statement with respect to the Partnership Units has been prepared by the Partnership in accordance with applicable requirements of the Securities Act of 1933, as amended (the "“Securities Act"”), the applicable rules and regulations (the “1933 Act Rules”) of the SEC promulgated thereunder, the Investment Company Act of 1940 (the “1940 Act”), and the applicable rules and regulations of the SEC promulgated thereunder (the "Rules and Regulations") of the Securities and Exchange Commission (the "SEC") promulgated thereunder, covering the Units“1940 Act Rules”). Such Said registration statement, which includes a preliminary prospectus, was initially filed with the SEC on or about September 27May 30, 20022007. Copies of such registration statement and each amendment thereto have been or will be delivered to the Dealer ManagerDistributor. (The registration statement and prospectus contained therein, as finally amended and revised at the effective date of the registration statementstatement (including at the effective date of any post-effective amendment thereto), are respectively hereinafter referred to as the "“Registration Statement" ” and the "“Prospectus," ” except that if the Prospectus first filed by the Partnership pursuant to Rule 424(b) 497 under the Securities Act shall differ from the Prospectus, the term "“Prospectus" ” shall also include the Prospectus filed pursuant to Rule 424(b)497.)
1.2 b. The Partnership has been duly and validly organized and formed as a limited partnership under the laws of the state State of TexasDelaware, with the all requisite power and authority to conduct its business as described in the Prospectus.
1.3 c. The Registration Statement and Prospectus comply with the Securities Act, the 1933 Act Rules, the 1940 Act and the 1940 Act Rules and Regulations and do not contain any untrue statements of material facts or omit to state any material fact required to be stated therein or necessary in order to make the statements therein therein, in light of the circumstances under which they were made, not misleading; provided, however, that the foregoing provisions of this Section 1.3 1(c) will not extend to such statements contained in or omitted from the Registration Statement or Prospectus as are primarily within the knowledge of the Dealer Manager Distributor or any of the Dealers Selling Agents and are based upon information furnished by the Dealer Manager Distributor in writing to the Partnership specifically for inclusion therein.
1.4 d. The Partnership intends to use the funds received from the sale of the Units as set forth in the Prospectus.
1.5 e. This Agreement has been duly authorized, executed and delivered by the Partnership, and assuming due authorization, execution and delivery of this Agreement by the Distributor, will constitute a valid and legally binding agreement of the Partnership enforceable against the Partnership in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally or by equitable principles relating to enforceability and except that rights to indemnity and contribution hereunder may be limited by applicable law and public policy.
f. No consent, approval, authorization or other order of any governmental authority is required in connection with the execution or delivery by the Partnership of this Agreement or the issuance and sale by the Partnership of the Units, except such as may be required under the Securities Act, the 1940 Act or applicable state securities laws.
1.6 g. There are no actions, suits or proceedings pending or or, to the knowledge of the Partnership, threatened against the Partnership at law or in equity or before or by any federal or state commission, regulatory body or administrative agency or other governmental body, domestic or foreign, which will could reasonably be expected to have a material adverse effect on the business or property of the Partnership.
1.7 h. The execution and delivery of this Agreement, the consummation of the transactions herein contemplated and compliance with the terms of this Agreement by the Partnership will not conflict with or constitute a default under (i) its organizational documents, (ii) any charter, bylaw, indenture, mortgage, deed of trusttrust or lease to which the Partnership is a party or by which it may be bound, lease, or to which any of the property or assets of the Partnership is subject or (iii) any rule, regulation, writ, injunction or decree of any government, governmental instrumentality or court, domestic or foreign, having jurisdiction over the PartnershipPartnership or any of its assets, properties or operations, except to in the extent case of clause (ii) and (iii) for such conflicts or defaults that would not individually or in the enforceability aggregate have a material adverse effect on the condition (financial or otherwise), business, properties or results of operations of the indemnity and/or contribution provisions contained in Section 4 of this Agreement may be limited under applicable securities lawsPartnership.
1.8 i. The Partnership has full legal right, all necessary partnership power and authority to enter into this Agreement and to perform the transactions contemplated hereby, except to the extent that the enforceability of the indemnity and/or contribution provisions contained in Section 4 of this Agreement may be limited under applicable securities laws.
1.9 j. At the time of the issuance of the Units, the Units will have been duly authorized and validly issued, and upon payment therefor, will be fully paid and nonassessable and will conform to the description thereof contained in the Prospectus, subject to the requirement that the limited partners do not participate in the management or control of the business of the Partnership.
Appears in 1 contract
Samples: Distributor Agreement (Dividend Capital Global Real Estate Fund of Funds, L.P.)
REPRESENTATIONS AND WARRANTIES OF THE PARTNERSHIP. The Partnership represents and warrants to the Dealer Manager and each dealer with whom the Dealer Manager has entered into or will enter into a Selected Dealer Agreement in the form attached to this Agreement as Exhibit A "A" (said dealers being hereinafter called the "Dealers") that:
1.1 A registration statement with respect to the Partnership has been prepared by the Partnership in accordance with applicable requirements of the Securities Act of 1933, as amended (the "Securities Act"), and the applicable rules and regulations (the "Rules and Regulations") of the Securities and Exchange Commission (the "SEC") promulgated thereunder, covering the Units. Such Said registration statement, which includes a preliminary prospectus, was initially filed with the SEC on or about September 27November 2, 20021998. Copies of such registration statement and each amendment thereto have been or will be delivered to the Dealer Manager. (The registration statement and prospectus contained therein, as finally amended and revised at the effective date of the registration statement, are respectively hereinafter referred to as the "Registration Statement" and the "Prospectus," except that if the Prospectus first filed by the Partnership pursuant to Rule 424(b) under the Securities Act shall differ from the Prospectus, the term "Prospectus" shall also include the Prospectus filed pursuant to Rule 424(b).)
1.2 The Partnership has been duly and validly organized and formed as a limited partnership under the laws Revised Uniform Limited Partnership Act of the state State of Texas, Georgia with the power and authority to conduct its business as described in the Prospectus.
1.3 The Registration Statement and Prospectus comply with the Securities Act and the Rules and Regulations and do not contain any untrue statements of material facts or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading; misleading provided, however, that the foregoing provisions of this Section 1.3 will not extend to such statements contained in or omitted from the Registration Statement or Prospectus as are primarily within the knowledge of the Dealer Manager or any of the Dealers and are based upon information furnished by the Dealer Manager in writing to the Partnership specifically for inclusion therein.
1.4 The Partnership intends to use the funds received from the sale of the Units as set forth in the Prospectus.
1.5 No consent, approval, authorization or other order of any governmental authority is required in connection with the execution or delivery by the Partnership of this Agreement or the issuance and sale by the Partnership of the Units, except such as may be required under the Securities Act or applicable state securities laws.
1.6 There are no actions, suits or proceedings pending or to the knowledge of the Partnership, threatened against the Partnership or its General Partners, at law or in equity or before or by any federal or state commission, regulatory body or administrative agency or other governmental body, domestic or foreign, which will have a material adverse effect on the business or property of the Partnership.
1.7 The execution and delivery of this Agreement, the consummation of the transactions herein contemplated and compliance with the terms of this Agreement by the Partnership will not conflict with or constitute a default under any charter, bylawby-law, indenture, mortgage, deed of trust, lease, rule, regulation, writ, injunction or decree of any government, governmental instrumentality or court, domestic or foreign, having jurisdiction over the Partnership, except to the extent that the enforceability of the indemnity and/or contribution provisions contained in Section 4 of this Agreement may be limited under applicable securities laws.
1.8 The Partnership has full legal right, power and authority to enter into this Agreement and to perform the transactions contemplated hereby, except to the extent that the enforceability of the indemnity and/or contribution provisions contained in Section 4 of this Agreement may be limited under applicable securities laws.
1.9 At the time of the issuance of the Units, the Units will have been duly authorized and validly issued, and upon payment therefor, will be fully paid and nonassessable and will conform to the description thereof contained in the Prospectus, subject to the requirement that the limited partners do not participate in the management or control of the business of the Partnership.
1.10 The respective financial statements contained in the Registration Statement and the Prospectus fairly present the financial condition of the Partnership and Partners and the results of their respective operations as of the dates and for the periods therein specified; and such financial statements have been prepared in accordance with generally accepted accounting principles consistently applied throughout the periods involved; and the accountants who have certified certain of such financial statements are independent public accountants as required by the Securities Act and the Rules and Regulations.
Appears in 1 contract
Samples: Dealer Manager Distribution Agreement (Wells Real Estate Fd Xii L P & Wells Real Estate Fd Xiii Lp)
