Representations and Warranties of the Selling Unitholders. Each Selling Unitholder, severally and not jointly, represents and warrants to, and agrees with, each of the Underwriters that: (a) Each Selling Unitholder is the record and beneficial owner of the Units to be sold by it hereunder free and clear of all liens, encumbrances, equities and claims and has duly endorsed such Units in blank, and has full power and authority to sell its interest in the Units, and, assuming that each Underwriter acquires its interest in the Units it has purchased from such Selling Unitholder without notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (“UCC”)), each Underwriter that has purchased such Units delivered on the Closing Date to The Depository Trust Company (“DTC”) or other securities intermediary by making payment therefor as provided herein, and that has had such Units credited to the securities account or accounts of such Underwriters maintained with DTC or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter with respect to such Units. (b) Such Selling Unitholder has not taken, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Partnership to facilitate the sale or resale of the Units. (c) Such Selling Unitholder’s Units have been placed in custody, for delivery pursuant to the terms of this Agreement, under a stock power (the “Stock Power”) and a custody agreement (the “Custody Agreement”) duly authorized (if applicable) executed and delivered by such Selling Unitholder, in the form heretofore furnished to the Underwriters; the Units so held in custody for such Selling Unitholder are subject to the interests hereunder of the Underwriters; the arrangements for custody and delivery of such certificates, made by such Selling Unitholder hereunder and under the Stock Power and Custody Agreement, are not subject to termination by any acts of such Selling Unitholder, or by operation of law, whether by the death or incapacity of such Selling Unitholder or the occurrence of any other event. (d) No Consent of or with any court, governmental agency or body having jurisdiction over such Selling Unitholder or any of its properties or assets is required in connection with (i) the offering, issuance or sale of the Units as described in the Registration Statement, the Disclosure Package and the Prospectus, (ii) the execution, delivery and performance of this Agreement, the Custody Agreement or the Stock Power by such Selling Unitholder or (iii) or the consummation of any other transactions contemplated by this Agreement, the Custody Agreement or the Stock Power other than (A) registration of the Units under the Act, which has been effected (or, with respect to any registration statement to be filed hereunder pursuant to Rule 462(b) under the Act, will be effected in accordance herewith) and Consents required under the Exchange Act, (B) any necessary qualification under the securities or blue sky laws of the various jurisdictions in which the Units are being offered by the Underwriters, (C) Consents under the rules and regulations of FINRA, (D) Consents that have been, or prior to the Closing Date will be, obtained and (E) Consents that, if not obtained, would not reasonably be expected, individually or in the aggregate, to materially impair the ability of such Selling Unitholder to consummate the offering and sale of the Units as contemplated by this Agreement. (e) None of (i) the offering, issuance or sale of the Units, (ii) the execution, delivery and performance of this Agreement, the Custody Agreement or the Stock Power by such Selling Unitholder or (iii) the consummation of any other transactions contemplated by this Agreement, the Custody Agreement or the Stock Power (A) conflicts or will conflict with, or constitutes or will constitute a violation of, the partnership agreement, limited liability company agreement, certificate of limited partnership, certificate of formation, conversion or other constituent document of such Selling Unitholder, if not a natural person, (B) conflicts or will conflict with, or constitutes or will constitute a breach or violation of, or a default under (or an event that, with notice or lapse of time or both would constitute such a default), the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which such Selling Unitholder is a party or bound or to which any of its properties is subject, (C) violates or will violate any statute, law, rule, regulation, judgment, order, decree or injunction of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over such Selling Unitholder or any of its properties in a proceeding to which such Selling Unitholder or its property is a party or (D) results or will result in the creation or imposition of any Lien upon any property or assets of such Selling Unitholder, which conflicts, breaches, violations, defaults or Liens, in the case of clauses (B), (C) or (D), would reasonably be expected to materially impair the ability of such Selling Unitholder to consummate the offering and sale of the Units as contemplated by this Agreement. (f) This Agreement has been duly authorized (as applicable), executed and delivered by or on behalf of such Selling Unitholder. (g) Such Selling Unitholder has not prepared or had prepared on its behalf or used or referred to, any “free writing prospectus” (as defined in Rule 405), and has not distributed any written materials in connection with the offer or sale of the Units. (h) Except as described in the Disclosure Package and the Prospectus, such Selling Unitholder does not (i) have any material lending or other relationship with any bank or lending affiliate of any of the Underwriters and (ii) intend to use any of the proceeds from the sale of the Units hereunder to repay any outstanding debt owed to any affiliate of the Underwriters. (i) Such Selling Unitholder does not have any registration or other similar rights to have any equity or debt securities registered for sale by the Partnership under the Registration Statement or included in the offering contemplated by this Agreement, other than as have been complied with or waived. (j) Neither such Selling Unitholder nor any of its affiliates directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with any member firm of FINRA or is a person associated with a member (within the meaning of the FINRA By-Laws) of FINRA. (k) The information related to such Selling Unitholder furnished in writing by or on behalf of such Selling Unitholder to the Partnership and the Underwriters expressly for use in the Registration Statement, the Pricing Prospectus, the Prospectus or any other Issuer Free Writing Prospectus or any amendment or supplement thereto (the “Selling Unitholder Information”), does not include any untrue statement of a material fact or omit to state a material fact. For the avoidance of doubt, each of the Partnership and the Underwriters acknowledges and agrees that for all purposes of this Agreement, the only information furnished to the Partnership and the Underwriters by or on behalf of such Selling Unitholder expressly for use in the Registration Statement, the Disclosure Package, the Prospectus or any amendments or supplements thereto are the number of Units owned and the number of Units proposed to be offered by such Selling Unitholder under the caption “Selling Unitholder” and the information appearing in the Disclosure Package and the Prospectus under the captions “Selling Unitholder” and the “Selling Unitholder Information” shall be limited to such information. Such Selling Unitholder is not prompted to sell the Units to be sold by such Selling Unitholder hereunder by any information concerning any Partnership Entity which is not set forth in the Registration Statement, the Disclosure Package or the Prospectus. Any certificate signed by or on behalf and delivered to the Representatives or counsel for the Underwriters in connection with the offering of the Units shall be deemed a representation and warranty by such Selling Unitholder, as to matters covered thereby, to each Underwriter.
Appears in 1 contract
Representations and Warranties of the Selling Unitholders. Each of the Selling UnitholderUnitholders, severally and not jointly, represents and warrants to, to and agrees with, with each of the Underwriters that:
(a) Each such Selling Unitholder has reviewed and will review, and is and will be familiar with, the Xxxxxxx registration statement or the Xxxxxxxx/EIV registration statement, as applicable, as originally filed with the Commission and all amendments thereto, if any, and with the Preliminary Prospectus and the Prospectus and any amendments or supplements thereto, if any, and the Disclosure Package; and, at the respective times the Xxxxxxx registration statement or the Xxxxxxxx/Xxxxxxx registration statement, as applicable, or any post-effective amendment thereto became or becomes effective, and at the time of purchase or any additional times of purchase, the information relating to such Selling Unitholder (including the information with respect to such Selling Unitholder’s Units and any other Common Units or other securities of the Partnership which are owned or held by such Selling Unitholder) that is set forth in the Xxxxxxx registration statement or the Xxxxxxxx/EIV registration statement, as applicable (or in any amendments thereto), or in any Preliminary Prospectus or the Prospectus (or in any amendments or supplements thereto) or in the Disclosure Package did not and will not contain an untrue statement of a material fact and did not and will not omit to state a material fact necessary in order to make such information not misleading; and all information furnished or confirmed (in writing) by or on behalf of such Selling Unitholder for use in the Xxxxxxx registration statement or the Xxxxxxxx/EIV registration statement, as applicable (or any amendment thereto), or any Preliminary Prospectus or the Prospectus (or any amendment or supplement thereto) or in the Disclosure Package is and will be true, complete and correct; and such Selling Unitholder is the record and beneficial owner of not prompted to sell the Units to be sold by it hereunder free and clear of all liens, encumbrances, equities and claims and has duly endorsed such Units in blank, and has full power and authority to sell its interest in the Units, and, assuming that each Underwriter acquires its interest in the Units it has purchased from such Selling Unitholder without notice of under this Agreement by any adverse claim (within information which is not otherwise required to be set forth in the meaning of Section 8-105 of Prospectus concerning the New York Uniform Commercial Code (“UCC”)), each Underwriter that has purchased such Units delivered on Partnership or any Subsidiary which is not so set forth in the Closing Date to The Depository Trust Company (“DTC”) or other securities intermediary by making payment therefor as provided herein, and that has had such Units credited to the securities account or accounts of such Underwriters maintained with DTC or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter with respect to such Units.Prospectus;
(b) Such Selling Unitholder this Agreement has not takenbeen duly authorized, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Partnership to facilitate the sale or resale of the Units.
(c) Such Selling Unitholder’s Units have been placed in custody, for delivery pursuant to the terms of this Agreement, under a stock power (the “Stock Power”) and a custody agreement (the “Custody Agreement”) duly authorized (if applicable) executed and delivered by such Selling Unitholder;
(c) if such Selling Unitholder is a limited partnership, such Selling Unitholder has been duly organized and is validly existing and in good standing under the laws of the jurisdiction of its formation and such Selling Unitholder is duly qualified to transact business and is in good standing in the Cayman Islands, in the form heretofore furnished to case of Xxxxxxxx, and in the Underwriters; State of Delaware, in the Units so held in custody for case of QEP and EIV;
(d) if such Selling Unitholder are subject is a limited partnership, such Selling Unitholder has full limited partnership right, power and authority to execute, deliver and perform its obligations under this Agreement and to sell, transfer and deliver the interests hereunder of the Underwriters; the arrangements for custody and delivery of such certificates, made Units to be sold by such Selling Unitholder hereunder and under the Stock Power and Custody this Agreement, are not subject to termination by any acts of such Selling Unitholder, or by operation of law, whether by the death or incapacity of ; if such Selling Unitholder or the occurrence of any other event.
(d) No Consent of or with any courtis a natural person, governmental agency or body having jurisdiction over such Selling Unitholder or any has full right, power and authority to execute, deliver and perform its obligations under this Agreement and to sell, transfer and deliver the Units to be sold by such Selling Unitholder under this Agreement;
(e) none of its properties or assets is required in connection with (i) the offering, issuance or offering and sale of the Units as described in by the Registration StatementSelling Unitholder, the Disclosure Package and the Prospectus, (ii) the execution, delivery and performance of this AgreementAgreement by the Selling Unitholder, the Custody Agreement or the Stock Power by such Selling Unitholder or (iii) or the consummation of any other the transactions contemplated by this Agreement, the Custody Agreement or the Stock Power other than (A) registration of the Units under the Act, which has been effected (or, with respect to any registration statement to be filed hereunder pursuant to Rule 462(b) under the Act, will be effected in accordance herewith) and Consents required under the Exchange Act, (B) any necessary qualification under the securities or blue sky laws of the various jurisdictions in which the Units are being offered by the Underwriters, (C) Consents under the rules and regulations of FINRA, (D) Consents that have been, or prior to the Closing Date will be, obtained and (E) Consents that, if not obtained, would not reasonably be expected, individually or in the aggregate, to materially impair the ability of such Selling Unitholder to consummate the offering and sale of the Units as contemplated by this Agreement.
(e) None of hereby (i) the offering, issuance or sale of the Units, (ii) the execution, delivery and performance of this Agreement, the Custody Agreement or the Stock Power by such Selling Unitholder or (iii) the consummation of any other transactions contemplated by this Agreement, the Custody Agreement or the Stock Power (A) conflicts or will conflict with, or constitutes or will constitute a violation of, the partnership agreement, limited liability company agreement, provisions of the certificate of formation or limited partnership, certificate of formation, conversion partnership agreement or other constituent document governing documents, as applicable, of such the Selling Unitholder, if such Selling Unitholder is not a natural person, (Bii) conflicts or will conflict with, or constitutes or will constitute a breach or violation of, of or a default under (or an event that, with notice or lapse of time or both both, would constitute such a defaultbreach or violation of or default under), the terms of any indenture, contract, lease, mortgage, deed of trust, note loan agreement, loan agreement lease or other agreement, obligation, condition, covenant agreement or instrument to which such the Selling Unitholder is a party or party, by which the Selling Unitholder is bound or to which any of its properties or assets is subject, (Ciii) subject to the accuracy of the Partnership’s representations and warranties in Sections 3(a), (b) and (c) of this Agreement and compliance with its obligations under Section 5 hereof, violates or will violate any statute, law, ruleordinance, regulation, order, judgment, order, decree or injunction of any court, regulatory body, administrative agency, court or governmental body, arbitrator agency or other authority having jurisdiction over such body to which the Selling Unitholder or any of its properties in a proceeding to which such Selling Unitholder or its property is a party assets may be subject or (Div) results or will result in the creation or imposition of any Lien upon any property or assets of such the Selling Unitholder, which conflicts, breaches, violations, defaults or Liens, in the case of clauses (Bii), (Ciii) or (Div), would would, individually or in the aggregate, reasonably be expected to have a material adverse effect on the Selling Unitholder or materially impair the ability of such the Selling Unitholder to consummate the offering and sale of the Units as contemplated by perform its obligations under this Agreement.;
(f) This Agreement has been duly authorized (as applicable), executed and delivered by or on behalf of such Selling Unitholder.
(g) Such Selling Unitholder has not prepared or had prepared on its behalf or used or referred to, any “free writing prospectus” (as defined in Rule 405), and has not distributed any written materials in connection with the offer or sale of the Units.
(h) Except as described in the Disclosure Package and the Prospectus, such Selling Unitholder does not (i) have any material lending or other relationship with any bank or lending affiliate is the sole legal, record and beneficial owner of any of the Underwriters and (ii) intend to use any of the proceeds from the sale of the Units hereunder to repay any outstanding debt owed to any affiliate of the Underwriters.
(i) Such Selling Unitholder does not have any registration or other similar rights to have any equity or debt securities registered for sale by the Partnership under the Registration Statement or included in the offering contemplated by this Agreement, other than as have been complied with or waived.
(j) Neither such Selling Unitholder nor any of its affiliates directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with any member firm of FINRA or is a person associated with a member (within the meaning of the FINRA By-Laws) of FINRA.
(k) The information related to such Selling Unitholder furnished in writing by or on behalf of such Selling Unitholder to the Partnership and the Underwriters expressly for use in the Registration Statement, the Pricing Prospectus, the Prospectus or any other Issuer Free Writing Prospectus or any amendment or supplement thereto (the “Selling Unitholder Information”), does not include any untrue statement of a material fact or omit to state a material fact. For the avoidance of doubt, each of the Partnership and the Underwriters acknowledges and agrees that for all purposes of this Agreement, the only information furnished to the Partnership and the Underwriters by or on behalf of such Selling Unitholder expressly for use in the Registration Statement, the Disclosure Package, the Prospectus or any amendments or supplements thereto are the number of Units owned and the number of Units proposed to be offered by such Selling Unitholder under the caption “Selling Unitholder” and the information appearing in the Disclosure Package and the Prospectus under the captions “Selling Unitholder” and the “Selling Unitholder Information” shall be limited to such information. Such Selling Unitholder is not prompted to sell the Units to be sold by such Selling Unitholder hereunder under this Agreement and will remain the sole legal, record and beneficial owner of such Units until the time of purchase or the additional time of purchase, as the case may be, and such Units are and, until delivery thereof to the Underwriters at the time of purchase or additional time of purchase, as the case may be, will be free and clear of all Liens created by any information concerning any Partnership Entity which is not set forth or through the Selling Unitholder (or Liens arising pursuant to this Agreement); upon payment of the consideration for the Units to be sold by such Selling Unitholder as provided in this Agreement and the crediting of such Units to the “security account” (within the meaning of Section 8-105(a) of the Uniform Commercial Code of the State of New York (the “UCC”)) of each of the Underwriters maintained in the Registration Statementrecords of DTC, each of the Underwriters will become an “entitlement holder” (within the meaning of Section 8-102(a)(7) of the UCC) of the “financial asset” (within the meaning of Section 8-102(a)(9) of the UCC) comprising the Units purchased by it from such Selling Unitholder, and, assuming that none of the Underwriters has “notice of an adverse claim” (within the meaning of Section 8-105 of the UCC) with respect to such Units, each of the Underwriters will acquire a “security entitlement” (within the meaning of Section 8-102(a)(17) of the UCC) to the Units purchased by such Underwriter from such Selling Unitholder. For purposes of this Section 4(f), the Disclosure Package Selling Unitholders may assume that when such payment, delivery and crediting occur, (A) such Units will have been registered in the name of Cede & Co. or another nominee designated by DTC, in each case on the Partnership’s unit registry in accordance with the Partnership Agreement and applicable law, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC;
(g) the Units to be sold by such Selling Unitholder under this Agreement are not subject to any option, warrant, put, call, right of first refusal or other right to purchase or otherwise acquire any such securities other than pursuant to this Agreement and the Partnership Agreement;
(A) no filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency, domestic or foreign, (B) no authorization, approval, vote or other consent of any security holder, if any, or creditor of such Selling Unitholder, and (C) no authorization, approval, vote or other consent of any other person or entity, is necessary or required for the execution or delivery by such Selling Unitholder of, or the Prospectusperformance by such Selling Unitholder of its obligations under, this Agreement for the sale and delivery by such Selling Unitholder of the Units to be sold by it under this Agreement, or for the consummation by such Selling Unitholder of the other transactions contemplated by this Agreement, except such as may be required under the Act or state securities sky laws or such as has been obtained; and
(i) such Selling Unitholder does not have any preemptive rights, rights of first refusal or other similar rights to purchase or otherwise acquire any of the Units that are to be sold by the other Selling Unitholders pursuant to this Agreement. Any In addition, any certificate signed by or on behalf any Selling Unitholder and delivered to the Representatives Underwriters or counsel for the Underwriters in connection with the offering of the Units shall be deemed to be a representation and warranty by such the Selling Unitholder, as to matters covered thereby, to each Underwriter.
Appears in 1 contract
Representations and Warranties of the Selling Unitholders. Each of the Selling UnitholderUnitholders, severally and not jointly, represents and warrants to, to and agrees with, with each of the Underwriters thatthat as of the date hereof, as of the time of sale or any additional time of sale, as follows:
(a) Each such Selling Unitholder has reviewed and will review, and is and will be familiar with, the Registration Statement as originally filed with the Commission and all amendments thereto, if any, and with each Preliminary Prospectus and the Prospectus and any amendments or supplements thereto, if any, and the Disclosure Package; and, at the respective times the Registration Statement or any post-effective amendment thereto became or becomes effective, and at the time of purchase or any additional times of purchase, the information relating to such Selling Unitholder (including the information with respect to such Selling Unitholder’s Units and any other Common Units or other securities of the Partnership which are owned or held by such Selling Unitholder) that is set forth in the Registration Statement (or in any amendments thereto) or in any Preliminary Prospectus or the Prospectus (or in any amendments or supplements thereto) or in the Disclosure Package did not and will not contain an untrue statement of a material fact and did not and will not omit to state a material fact necessary in order to make such information not misleading; and all information furnished or confirmed (in writing) by or on behalf of such Selling Unitholder for use in the Registration Statement (or any amendment thereto) or any Preliminary Prospectus or the Prospectus (or any amendment or supplement thereto) or in the Disclosure Package is and will be true, complete and correct; and such Selling Unitholder is the record and beneficial owner of not prompted to sell the Units to be sold by it hereunder free and clear of all liens, encumbrances, equities and claims and has duly endorsed such Units in blank, and has full power and authority to sell its interest in the Units, and, assuming that each Underwriter acquires its interest in the Units it has purchased from such Selling Unitholder without notice of under this Agreement by any adverse claim (within information concerning the meaning of Section 8-105 of Partnership or any Subsidiary required to be set forth in the New York Uniform Commercial Code (“UCC”)), each Underwriter that has purchased such Units delivered on Prospectus which is not so set forth in the Closing Date to The Depository Trust Company (“DTC”) or other securities intermediary by making payment therefor as provided herein, and that has had such Units credited to the securities account or accounts of such Underwriters maintained with DTC or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter with respect to such Units.Prospectus;
(b) Such Selling Unitholder this Agreement has not takenbeen duly authorized, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Partnership to facilitate the sale or resale of the Units.
(c) Such Selling Unitholder’s Units have been placed in custody, for delivery pursuant to the terms of this Agreement, under a stock power (the “Stock Power”) and a custody agreement (the “Custody Agreement”) duly authorized (if applicable) executed and delivered by such Selling Unitholder, in the form heretofore furnished to the Underwriters; the Units so held in custody for ;
(c) if such Selling Unitholder are subject to is not a natural person, such Selling Unitholder has been duly organized and is validly existing and in good standing under the interests hereunder laws of the Underwriters; jurisdiction of its formation and such Selling Unitholder is duly qualified to transact business and is in good standing in the arrangements for custody State of Texas;
(d) such Selling Unitholder has full corporate (with respect to Denbury G&M) or limited liability company (with respect to Denbury Onshore) right, power and delivery of such certificatesauthority to execute, made deliver and perform its obligations under this Agreement and to sell, transfer and deliver the Units to be sold by such Selling Unitholder hereunder and under the Stock Power and Custody this Agreement, are not subject to termination by any acts of such Selling Unitholder, or by operation of law, whether by the death or incapacity of such Selling Unitholder or the occurrence of any other event.;
(de) No Consent none of or with any court, governmental agency or body having jurisdiction over such Selling Unitholder or any of its properties or assets is required in connection with (i) the offering, issuance or offering and sale of the Units as described in by the Registration StatementSelling Unitholder, the Disclosure Package and the Prospectus, (ii) the execution, delivery and performance of this AgreementAgreement by the Selling Unitholder, the Custody Agreement or the Stock Power by such Selling Unitholder or (iii) or the consummation of any other the transactions contemplated by this Agreement, the Custody Agreement or the Stock Power other than (A) registration of the Units under the Act, which has been effected (or, with respect to any registration statement to be filed hereunder pursuant to Rule 462(b) under the Act, will be effected in accordance herewith) and Consents required under the Exchange Act, (B) any necessary qualification under the securities or blue sky laws of the various jurisdictions in which the Units are being offered by the Underwriters, (C) Consents under the rules and regulations of FINRA, (D) Consents that have been, or prior to the Closing Date will be, obtained and (E) Consents that, if not obtained, would not reasonably be expected, individually or in the aggregate, to materially impair the ability of such Selling Unitholder to consummate the offering and sale of the Units as contemplated by this Agreement.
(e) None of hereby (i) the offering, issuance or sale of the Units, (ii) the execution, delivery and performance of this Agreement, the Custody Agreement or the Stock Power by such Selling Unitholder or (iii) the consummation of any other transactions contemplated by this Agreement, the Custody Agreement or the Stock Power (A) conflicts or will conflict with, or constitutes or will constitute a violation of, the partnership agreement, limited liability company agreement, provisions of the certificate of limited partnership, incorporation or bylaws or certificate of formationformation or governing documents, conversion or other constituent document as applicable, of such the Selling Unitholder, if not a natural person, (Bii) conflicts or will conflict with, or constitutes or will constitute a breach or violation of, of or a default under (or an event that, with notice or lapse of time or both both, would constitute such a defaultbreach or violation of or default under), the terms of any indenture, contract, lease, mortgage, deed of trust, note loan agreement, loan agreement lease or other agreement, obligation, condition, covenant agreement or instrument to which such the Selling Unitholder is a party or party, by which the Selling Unitholder is bound or to which any of its properties or assets is subject, (Ciii) subject to the accuracy of the Partnership’s representations and warranties in Sections 3(a), (b) and (c) of this Agreement and compliance with its obligations under Section 5 hereof, violates or will violate any statute, law, ruleordinance, regulation, order, judgment, order, decree or injunction of any court, regulatory body, administrative agency, court or governmental body, arbitrator agency or other authority having jurisdiction over such body to which the Selling Unitholder or any of its properties in a proceeding to which such Selling Unitholder or its property is a party assets may be subject or (Div) results or will result in the creation or imposition of any Lien upon any property or assets of such the Selling Unitholder, which conflicts, breaches, violations, defaults or Liens, in the case of clauses (Bii), (Ciii) or (Div), would reasonably be expected to would, individually or in the aggregate, have a material adverse effect on the Selling Unitholder or materially impair the ability of such the Selling Unitholder to consummate the offering and sale of the Units as contemplated by perform its obligations under this Agreement.;
(f) This Agreement has been duly authorized (as applicable), executed and delivered by or on behalf of such Selling Unitholder.
(g) Such Selling Unitholder has not prepared or had prepared on its behalf or used or referred to, any “free writing prospectus” (as defined in Rule 405), and has not distributed any written materials in connection with the offer or sale of the Units.
(h) Except as described in the Disclosure Package and the Prospectus, such Selling Unitholder does not (i) have any material lending or other relationship with any bank or lending affiliate is the sole legal, record and beneficial owner of any of the Underwriters and (ii) intend to use any of the proceeds from the sale of the Units hereunder to repay any outstanding debt owed to any affiliate of the Underwriters.
(i) Such Selling Unitholder does not have any registration or other similar rights to have any equity or debt securities registered for sale by the Partnership under the Registration Statement or included in the offering contemplated by this Agreement, other than as have been complied with or waived.
(j) Neither such Selling Unitholder nor any of its affiliates directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with any member firm of FINRA or is a person associated with a member (within the meaning of the FINRA By-Laws) of FINRA.
(k) The information related to such Selling Unitholder furnished in writing by or on behalf of such Selling Unitholder to the Partnership and the Underwriters expressly for use in the Registration Statement, the Pricing Prospectus, the Prospectus or any other Issuer Free Writing Prospectus or any amendment or supplement thereto (the “Selling Unitholder Information”), does not include any untrue statement of a material fact or omit to state a material fact. For the avoidance of doubt, each of the Partnership and the Underwriters acknowledges and agrees that for all purposes of this Agreement, the only information furnished to the Partnership and the Underwriters by or on behalf of such Selling Unitholder expressly for use in the Registration Statement, the Disclosure Package, the Prospectus or any amendments or supplements thereto are the number of Units owned and the number of Units proposed to be offered by such Selling Unitholder under the caption “Selling Unitholder” and the information appearing in the Disclosure Package and the Prospectus under the captions “Selling Unitholder” and the “Selling Unitholder Information” shall be limited to such information. Such Selling Unitholder is not prompted to sell the Units to be sold by such Selling Unitholder hereunder under this Agreement and will remain the sole legal, record and beneficial owner of such Units until the time of purchase or the additional time of purchase, as the case may be, and such Units are and, until delivery thereof to the Underwriters at the time of purchase or additional time of purchase, as the case may be, will be free and clear of all Liens created by or through the Selling Unitholder (or Liens arising pursuant to this Agreement); upon payment of the consideration for the Units to be sold by such Selling Unitholder as provided in this Agreement and the crediting of such Units to the security account or accounts of the Underwriters maintained in the records of DTC, each of the Underwriters will become an “entitlement holder” (within the meaning of Section 8-102(a)(7) of the Uniform Commercial Code of the State of New York (the “UCC”)) of the “financial asset” (within the meaning of Section 8-102(a)(9) of the UCC) comprising the Units purchased by it from such Selling Unitholder, and, assuming that none of the Underwriters has “notice of an adverse claim” (within the meaning of Section 8-105 of the UCC) with respect to such Units, each of the Underwriters will acquire a “security entitlement” (within the meaning of Section 8-102(a)(17) of the UCC) to the Units purchased by such Underwriter from such Selling Unitholder. For purposes of this Section 4(f), the Selling Unitholders may assume that when such payment, delivery and crediting occur, (A) such Units will have been registered in the name of Cede & Co. or another nominee designated by DTC, in each case on the Partnership’s unit registry in accordance with the Partnership Agreement and applicable law, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC;
(g) the Units to be sold by such Selling Unitholder under this Agreement are not subject to any option, warrant, put, call, right of first refusal or other right to purchase or otherwise acquire any such Securities other than pursuant to this Agreement and the Partnership Agreement;
(A) no filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency, domestic or foreign, (B) no authorization, approval, vote or other consent of any security holder, if any, or creditor of such Selling Unitholder, and (C) no authorization, approval, vote or other consent of any other person or entity, is necessary or required for the execution or delivery by such Selling Unitholder of, or the performance by such Selling Unitholder of its obligations under, this Agreement for the sale and delivery by such Selling Unitholder of the Units to be sold by it under this Agreement, or for the consummation by such Selling Unitholder of the other transactions contemplated by this Agreement, except such as may be required under the Act or state securities sky laws or such as has been obtained;
(i) such Selling Unitholder does not have any preemptive rights, rights of first refusal or other similar rights to purchase or otherwise acquire any of the Units that are to be sold by any information concerning any Partnership Entity which of the other Selling Unitholders pursuant to this Agreement; and
(j) the Xxxxxxx Unitholders represent that DG Marine is not set forth a U.S. Citizen; after giving effect to the consummation of the transactions herein contemplated and the sale of the Units by the Underwriters, DG Marine will remain a citizen of the United States within the meaning of 46 U.S.C. Sec. 50501 and qualified to engage in the Registration Statementcoastwise trade of the United States. In addition, the Disclosure Package or the Prospectus. Any any certificate signed by or on behalf any Selling Unitholder and delivered to the Representatives Underwriters or counsel for the Underwriters in connection with the offering of the Units shall be deemed to be a representation and warranty by such the Selling Unitholder, as to matters covered thereby, to each Underwriter.
Appears in 1 contract
Representations and Warranties of the Selling Unitholders. Each of the Selling UnitholderUnitholders, severally and not jointly, represents and warrants to, to and agrees with, each of with the Underwriters Underwriter that:
(a) Each such Selling Unitholder has reviewed and will review, and is and will be familiar with, the Registration Statement, as originally filed with the Commission and all amendments thereto, if any, and with the Preliminary Prospectus and the Prospectus and any amendments or supplements thereto, if any, and the Disclosure Package; and, at the time the Registration Statement or any post-effective amendment thereto became or becomes effective, and at the time of purchase, the information relating to such Selling Unitholder (including the information with respect to such Selling Unitholder’s Units and any other Common Units or other securities of the Partnership which are owned or held by such Selling Unitholder) that is set forth in the Registration Statement (or in any amendments thereto), or in the Preliminary Prospectus or the Prospectus (or in any amendments or supplements thereto) or in the Disclosure Package did not and will not contain an untrue statement of a material fact and did not and will not omit to state a material fact necessary in order to make such information not misleading; and all information furnished or confirmed (in writing) by or on behalf of such Selling Unitholder for use in the Registration Statement (or any amendment thereto), or the Preliminary Prospectus or the Prospectus (or any amendment or supplement thereto) or in the Disclosure Package is and will be true, complete and correct; and such Selling Unitholder is the record and beneficial owner of not prompted to sell the Units to be sold by it hereunder free and clear of all liens, encumbrances, equities and claims and has duly endorsed such Units in blank, and has full power and authority to sell its interest in the Units, and, assuming that each Underwriter acquires its interest in the Units it has purchased from such Selling Unitholder without notice of under this Agreement by any adverse claim (within information which is not otherwise required to be set forth in the meaning of Section 8-105 of Prospectus concerning the New York Uniform Commercial Code (“UCC”)), each Underwriter that has purchased such Units delivered on Partnership or any Subsidiary which is not so set forth in the Closing Date to The Depository Trust Company (“DTC”) or other securities intermediary by making payment therefor as provided herein, and that has had such Units credited to the securities account or accounts of such Underwriters maintained with DTC or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter with respect to such Units.Prospectus;
(b) Such Selling Unitholder has not taken, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Partnership to facilitate the sale or resale of the Units.
(c) Such Selling Unitholder’s Units have been placed in custody, for delivery pursuant to the terms of this Agreement, under a stock power (the “Stock Power”) and a custody agreement (the “Custody Agreement”) ), dated October 1, 2012, between American Stock Transfer & Trust Company, as custodian and paying agent (the “Custodian”), the Power of Attorney and the Purchase Agreement (collectively, the “Transaction Documents”), to which such Selling Unitholder is a party, have each been duly authorized (if applicable) executed and delivered by (or, in the case of this Agreement, on behalf of) such Selling Unitholder, in the form heretofore furnished to the Underwriters; the Units so held in custody for and each is a legal, valid and binding agreement of such Selling Unitholder are subject to the interests hereunder of the Underwritersenforceable in accordance with its terms; the arrangements for custody and delivery of such certificates, made by such Selling Unitholder hereunder has duly and under irrevocably authorized each of the Stock Power and Custody AgreementAttorneys-in-Fact (whether acting alone or together), are not subject to termination by any acts on behalf of such Selling Unitholder, to execute and deliver any documents necessary or desirable in connection with the transactions contemplated hereby or thereby and to deliver the Units to be sold by operation of law, whether by the death or incapacity of such Selling Unitholder pursuant to this Agreement;
(c) if such Selling Unitholder is a corporation, limited partnership or a limited liability company, such Selling Unitholder has been duly organized and is validly existing and in good standing under the laws of the jurisdiction of its formation and such Selling Unitholder is duly qualified to transact business and is in good standing in the Cayman Islands or in the State of Texas or the occurrence State of any other event.Delaware, as applicable;
(d) No Consent of or with any court, governmental agency or body having jurisdiction over if such Selling Unitholder is a corporation, limited partnership or any a limited liability company, such Selling Unitholder has full corporate, limited partnership or limited liability company right, power and authority to execute, deliver and perform its obligations under this Agreement and to sell, transfer and deliver the Units to be sold by such Selling Unitholder under this Agreement; if such Selling Unitholder is a trust or a natural person, such Selling Unitholder has full right, power and authority to execute, deliver and perform its obligations under this Agreement and to sell, transfer and deliver the Units to be sold by such Selling Unitholder under this Agreement;
(e) none of its properties or assets is required in connection with (i) the offering, issuance or offering and sale of the Units as described in by the Registration StatementSelling Unitholder, the Disclosure Package and the Prospectus, (ii) the execution, delivery and performance of this Agreementthe Transaction Documents by or on behalf of the Selling Unitholder, the Custody Agreement or the Stock Power by such Selling Unitholder or (iii) or the consummation of any other the transactions contemplated by this Agreement, the Custody Agreement hereby or the Stock Power other than (A) registration of the Units under the Act, which has been effected (or, with respect to any registration statement to be filed hereunder pursuant to Rule 462(b) under the Act, will be effected in accordance herewith) and Consents required under the Exchange Act, (B) any necessary qualification under the securities or blue sky laws of the various jurisdictions in which the Units are being offered by the Underwriters, (C) Consents under the rules and regulations of FINRA, (D) Consents that have been, or prior to the Closing Date will be, obtained and (E) Consents that, if not obtained, would not reasonably be expected, individually or in the aggregate, to materially impair the ability of such Selling Unitholder to consummate the offering and sale of the Units as contemplated by this Agreement.
(e) None of thereby (i) the offering, issuance or sale of the Units, (ii) the execution, delivery and performance of this Agreement, the Custody Agreement or the Stock Power by such Selling Unitholder or (iii) the consummation of any other transactions contemplated by this Agreement, the Custody Agreement or the Stock Power (A) conflicts or will conflict with, or constitutes or will constitute a violation of, the provisions of the certificate of incorporation, certificate of formation, limited partnership agreement, limited liability company agreement, certificate of limited partnership, certificate of formation, conversion or other constituent document governing documents, as applicable, of such the Selling Unitholder, if such Selling Unitholder is not a natural person, (Bii) conflicts or will conflict with, or constitutes or will constitute a breach or violation of, of or a default under (or an event that, with notice or lapse of time or both both, would constitute such a defaultbreach or violation of or default under), the terms of any indenture, contract, lease, mortgage, deed of trust, note loan agreement, loan agreement lease or other agreement, obligation, condition, covenant agreement or instrument to which such the Selling Unitholder is a party or party, by which the Selling Unitholder is bound or to which any of its properties or assets is subject, (Ciii) subject to the accuracy of the Partnership’s representations and warranties in Sections 3(a), (b) and (c) of this Agreement and compliance with its obligations under Section 5 hereof, violates or will violate any statute, law, ruleordinance, regulation, order, judgment, order, decree or injunction of any court, regulatory body, administrative agency, court or governmental body, arbitrator agency or other authority having jurisdiction over such body to which the Selling Unitholder or any of its properties in a proceeding to which such Selling Unitholder or its property is a party assets may be subject or (Div) results or will result in the creation or imposition of any Lien upon any property or assets of such the Selling Unitholder, which conflicts, breaches, violations, defaults or Liens, in the case of clauses (Bii), (Ciii) or (Div), would would, individually or in the aggregate, reasonably be expected to have a material adverse effect on the Selling Unitholder or materially impair the ability of such the Selling Unitholder to consummate perform its obligations under the offering and sale of the Units as contemplated by this Agreement.Transaction Documents;
(f) This Agreement has been duly authorized (as applicable), executed and delivered by or on behalf of such Selling Unitholder.
(g) Such Selling Unitholder has not prepared or had prepared on its behalf or used or referred to, any “free writing prospectus” (as defined in Rule 405), and has not distributed any written materials in connection with the offer or sale of the Units.
(h) Except as described in the Disclosure Package and the Prospectus, such Selling Unitholder does not (i) have any material lending or other relationship with any bank or lending affiliate is the sole legal, record and beneficial owner of any of the Underwriters and (ii) intend to use any of the proceeds from the sale of the Units hereunder to repay any outstanding debt owed to any affiliate of the Underwriters.
(i) Such Selling Unitholder does not have any registration or other similar rights to have any equity or debt securities registered for sale by the Partnership under the Registration Statement or included in the offering contemplated by this Agreement, other than as have been complied with or waived.
(j) Neither such Selling Unitholder nor any of its affiliates directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with any member firm of FINRA or is a person associated with a member (within the meaning of the FINRA By-Laws) of FINRA.
(k) The information related to such Selling Unitholder furnished in writing by or on behalf of such Selling Unitholder to the Partnership and the Underwriters expressly for use in the Registration Statement, the Pricing Prospectus, the Prospectus or any other Issuer Free Writing Prospectus or any amendment or supplement thereto (the “Selling Unitholder Information”), does not include any untrue statement of a material fact or omit to state a material fact. For the avoidance of doubt, each of the Partnership and the Underwriters acknowledges and agrees that for all purposes of this Agreement, the only information furnished to the Partnership and the Underwriters by or on behalf of such Selling Unitholder expressly for use in the Registration Statement, the Disclosure Package, the Prospectus or any amendments or supplements thereto are the number of Units owned and the number of Units proposed to be offered by such Selling Unitholder under the caption “Selling Unitholder” and the information appearing in the Disclosure Package and the Prospectus under the captions “Selling Unitholder” and the “Selling Unitholder Information” shall be limited to such information. Such Selling Unitholder is not prompted to sell the Units to be sold by such Selling Unitholder under this Agreement and will remain the sole legal, record and beneficial owner of such Units until the time of purchase, and such Units are and, until delivery thereof to the Underwriter at the time of purchase, will be free and clear of all Liens created by or through the Selling Unitholder (or Liens arising pursuant to this Agreement); upon payment of the consideration for the Units to be sold by such Selling Unitholder as provided in this Agreement and the crediting of such Units to the “security account” (within the meaning of Section 8-105(a) of the Uniform Commercial Code of the State of New York (the “UCC”)) of the Underwriter maintained in the records of DTC, the Underwriter will become an “entitlement holder” (within the meaning of Section 8-102(a)(7) of the UCC) of the “financial asset” (within the meaning of Section 8-102(a)(9) of the UCC) comprising the Units purchased by it from such Selling Unitholder, and, assuming that the Underwriter has no “notice of an adverse claim” (within the meaning of Section 8-105 of the UCC) with respect to such Units, the Underwriter will acquire a “security entitlement” (within the meaning of Section 8-102(a)(17) of the UCC) to the Units purchased by the Underwriter from such Selling Unitholder. For purposes of this Section 4(f), the Selling Unitholders may assume that when such payment, delivery and crediting occur, (A) such Units will have been registered in the name of Cede & Co. or another nominee designated by DTC, in each case on the Partnership’s unit registry in accordance with the Partnership Agreement and applicable law, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the account of the Underwriter on the records of DTC will have been made pursuant to the UCC;
(g) the Units to be sold by such Selling Unitholder under this Agreement are not subject to any option, warrant, put, call, right of first refusal or other right to purchase or otherwise acquire any such securities other than pursuant to this Agreement and the Partnership Agreement;
(A) no filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency, domestic or foreign, (B) no authorization, approval, vote or other consent of any security holder, if any, or creditor of such Selling Unitholder, and (C) no authorization, approval, vote or other consent of any other person or entity, is necessary or required for the execution or delivery by such Selling Unitholder of, or the performance by such Selling Unitholder of its obligations under the Transaction Documents for the sale and delivery by such Selling Unitholder of the Units to be sold by it under this Agreement, or for the consummation by such Selling Unitholder of the other transactions contemplated by the Transaction Documents, except such as may be required under the Act or state securities sky laws or such as has been obtained;
(i) such Selling Unitholder does not have any preemptive rights, rights of first refusal or other similar rights to purchase or otherwise acquire any of the Units that are to be sold by the other Selling Unitholders pursuant to this Agreement; and
(j) pursuant to the Custody Agreement, certificates in negotiable form for the Units to be sold by such Selling Unitholder pursuant to this Agreement have been placed in custody for the purpose of making delivery of such Units in accordance with this Agreement; such Selling Unitholder agrees that (i) such Units represented by such certificates are for the benefit of, and coupled with and subject to the interest of, the Custodian, the Attorneys-in-Fact, the Underwriter and the Partnership, (ii) the arrangements made by such Selling Unitholder for custody and for the appointment of the Custodian and the Attorneys-in-Fact by such Selling Unitholder are irrevocable, and (iii) the obligations of such Selling Unitholder hereunder shall not be terminated by any information concerning any Partnership Entity which operation of law, whether by the death, disability or incapacity of such Selling Unitholder (or, if such Selling Unitholder is not set forth in the Registration Statementan individual, the Disclosure Package liquidation, dissolution, merger or consolidation of such Selling Unitholder) or the Prospectusoccurrence of any other event (each, an “Event”); if an Event occurs before the delivery of the Units hereunder, certificates for the Units shall be delivered by the Custodian in accordance with the terms and conditions of the Power of Attorney to which such Selling Unitholder is a party, the Custody Agreement and this Agreement, and actions taken by the Custodian and the Attorneys-in-Fact pursuant to such Power or Attorney or such Custody Agreement shall be as valid as if such Event had not occurred, regardless of whether or not the Custodian or the Attorneys-in-Fact, or either of them, shall have received notice thereof. Any In addition, any certificate signed by any Selling Unitholder or on behalf any Attorney-in-Fact and delivered to the Representatives Underwriter or counsel for the Underwriters Underwriter in connection with the offering of the Units shall be deemed to be a representation and warranty by such the Selling Unitholder, as to matters covered thereby, to each the Underwriter.
Appears in 1 contract
Representations and Warranties of the Selling Unitholders. Each of the Selling UnitholderUnitholders, severally and not jointly, represents and warrants to, to and agrees with, with each of the Underwriters that:
(a) Each such Selling Unitholder has reviewed and will review, and is and will be familiar with, the Selling Unitholder registration statement as originally filed with the Commission and all amendments thereto, if any, and with each Preliminary Prospectus and the Prospectus and any amendments or supplements thereto, if any, and the Disclosure Package; and, at the respective times the Selling Unitholder registration statement or any post-effective amendment thereto became or becomes effective, and at the time of purchase or any additional times of purchase, the information relating to such Selling Unitholder (including the information with respect to such Selling Unitholder’s Units and any other Common Units or other securities of the Partnership which are owned or held by such Selling Unitholder) that is set forth in the Selling Unitholder registration statement (or in any amendments thereto) or in any Preliminary Prospectus or the Prospectus (or in any amendments or supplements thereto) or in the Disclosure Package did not and will not contain an untrue statement of a material fact and did not and will not omit to state a material fact necessary in order to make such information not misleading; and all information furnished or confirmed (in writing) by or on behalf of such Selling Unitholder for use in the Selling Unitholder registration statement (or any amendment thereto) or any Preliminary Prospectus or the Prospectus (or any amendment or supplement thereto) or in the Disclosure Package is and will be true, complete and correct; and such Selling Unitholder is not prompted to sell the record and beneficial owner of the Selling Unitholder Units to be sold by it hereunder free and clear of all liens, encumbrances, equities and claims and has duly endorsed such Units in blank, and has full power and authority to sell its interest in the Units, and, assuming that each Underwriter acquires its interest in the Units it has purchased from such Selling Unitholder without notice of under this Agreement by any adverse claim (within information which is not otherwise required to be set forth in the meaning of Section 8-105 of Prospectus concerning the New York Uniform Commercial Code (“UCC”)), each Underwriter that has purchased such Units delivered on Partnership or any Subsidiary which is not so set forth in the Closing Date to The Depository Trust Company (“DTC”) or other securities intermediary by making payment therefor as provided herein, and that has had such Units credited to the securities account or accounts of such Underwriters maintained with DTC or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter, and no action based on an adverse claim (within the meaning of Section 8-105 of the UCC) may be asserted against such Underwriter with respect to such Units.Prospectus;
(b) Such Selling Unitholder this Agreement has not takenbeen duly authorized, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Partnership to facilitate the sale or resale of the Units.
(c) Such Selling Unitholder’s Units have been placed in custody, for delivery pursuant to the terms of this Agreement, under a stock power (the “Stock Power”) and a custody agreement (the “Custody Agreement”) duly authorized (if applicable) executed and delivered by such Selling Unitholder;
(c) such Selling Unitholder has been duly organized and is validly existing and in good standing under the laws of the jurisdiction of its formation and such Selling Unitholder is duly qualified to transact business and is in good standing in the Cayman Islands, in the form heretofore furnished to case of Xxxxxxxx, and in the Underwriters; State of Delaware, in the Units so held in custody for case of QEP and EIV;
(d) such Selling Unitholder are subject has full limited partnership right, power and authority to execute, deliver and perform its obligations under this Agreement and to sell, transfer and deliver the interests hereunder of the Underwriters; the arrangements for custody and delivery of such certificates, made Selling Unitholder Units to be sold by such Selling Unitholder hereunder under this Agreement;
(e) none of the offering and under sale of the Stock Power and Custody Agreement, are not subject to termination Selling Unitholder Units by any acts of such the Selling Unitholder, or by operation of law, whether by the death or incapacity of such Selling Unitholder or the occurrence of any other event.
(d) No Consent of or with any court, governmental agency or body having jurisdiction over such Selling Unitholder or any of its properties or assets is required in connection with (i) the offering, issuance or sale of the Units as described in the Registration Statement, the Disclosure Package and the Prospectus, (ii) the execution, delivery and performance of this AgreementAgreement by the Selling Unitholder, the Custody Agreement or the Stock Power by such Selling Unitholder or (iii) or the consummation of any other the transactions contemplated by this Agreement, the Custody Agreement or the Stock Power other than (A) registration of the Units under the Act, which has been effected (or, with respect to any registration statement to be filed hereunder pursuant to Rule 462(b) under the Act, will be effected in accordance herewith) and Consents required under the Exchange Act, (B) any necessary qualification under the securities or blue sky laws of the various jurisdictions in which the Units are being offered by the Underwriters, (C) Consents under the rules and regulations of FINRA, (D) Consents that have been, or prior to the Closing Date will be, obtained and (E) Consents that, if not obtained, would not reasonably be expected, individually or in the aggregate, to materially impair the ability of such Selling Unitholder to consummate the offering and sale of the Units as contemplated by this Agreement.
(e) None of hereby (i) the offering, issuance or sale of the Units, (ii) the execution, delivery and performance of this Agreement, the Custody Agreement or the Stock Power by such Selling Unitholder or (iii) the consummation of any other transactions contemplated by this Agreement, the Custody Agreement or the Stock Power (A) conflicts or will conflict with, or constitutes or will constitute a violation of, the partnership agreement, limited liability company agreement, provisions of the certificate of formation or limited partnership, certificate of formation, conversion partnership agreement or other constituent document governing documents, as applicable, of such the Selling Unitholder, if not a natural person, (Bii) conflicts or will conflict with, or constitutes or will constitute a breach or violation of, of or a default under (or an event that, with notice or lapse of time or both both, would constitute such a defaultbreach or violation of or default under), the terms of any indenture, contract, lease, mortgage, deed of trust, note loan agreement, loan agreement lease or other agreement, obligation, condition, covenant agreement or instrument to which such the Selling Unitholder is a party or party, by which the Selling Unitholder is bound or to which any of its properties or assets is subject, (Ciii) subject to the accuracy of the Partnership’s representations and warranties in Sections 3(a), (b) and (c) of this Agreement and compliance with its obligations under Section 5 hereof, violates or will violate any statute, law, ruleordinance, regulation, order, judgment, order, decree or injunction of any court, regulatory body, administrative agency, court or governmental body, arbitrator agency or other authority having jurisdiction over such body to which the Selling Unitholder or any of its properties in a proceeding to which such Selling Unitholder or its property is a party assets may be subject or (Div) results or will result in the creation or imposition of any Lien upon any property or assets of such the Selling Unitholder, which conflicts, breaches, violations, defaults or Liens, in the case of clauses (Bii), (Ciii) or (Div), would would, individually or in the aggregate, reasonably be expected to have a material adverse effect on the Selling Unitholder or materially impair the ability of such the Selling Unitholder to consummate the offering and sale of the Units as contemplated by perform its obligations under this Agreement.;
(f) This Agreement has been duly authorized (as applicable), executed and delivered by or on behalf of such Selling Unitholder.
(g) Such Selling Unitholder has not prepared or had prepared on its behalf or used or referred to, any “free writing prospectus” (as defined in Rule 405), and has not distributed any written materials in connection with the offer or sale of the Units.
(h) Except as described in the Disclosure Package and the Prospectus, such Selling Unitholder does not (i) have any material lending or other relationship with any bank or lending affiliate of any is the sole legal, record and beneficial owner of the Underwriters and (ii) intend to use any of the proceeds from the sale of the Units hereunder to repay any outstanding debt owed to any affiliate of the Underwriters.
(i) Such Selling Unitholder does not have any registration or other similar rights to have any equity or debt securities registered for sale by the Partnership under the Registration Statement or included in the offering contemplated by this Agreement, other than as have been complied with or waived.
(j) Neither such Selling Unitholder nor any of its affiliates directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with any member firm of FINRA or is a person associated with a member (within the meaning of the FINRA By-Laws) of FINRA.
(k) The information related to such Selling Unitholder furnished in writing by or on behalf of such Selling Unitholder to the Partnership and the Underwriters expressly for use in the Registration Statement, the Pricing Prospectus, the Prospectus or any other Issuer Free Writing Prospectus or any amendment or supplement thereto (the “Selling Unitholder Information”), does not include any untrue statement of a material fact or omit to state a material fact. For the avoidance of doubt, each of the Partnership and the Underwriters acknowledges and agrees that for all purposes of this Agreement, the only information furnished to the Partnership and the Underwriters by or on behalf of such Selling Unitholder expressly for use in the Registration Statement, the Disclosure Package, the Prospectus or any amendments or supplements thereto are the number of Units owned and the number of Units proposed to be offered by such Selling Unitholder under the caption “Selling Unitholder” and the information appearing in the Disclosure Package and the Prospectus under the captions “Selling Unitholder” and the “Selling Unitholder Information” shall be limited to such information. Such Selling Unitholder is not prompted to sell the Units to be sold by such Selling Unitholder hereunder under this Agreement and will remain the sole legal, record and beneficial owner of such Selling Unitholder Units until the time of purchase or the additional time of purchase, as the case may be, and such Selling Unitholder Units are and, until delivery thereof to the Underwriters at the time of purchase or additional time of purchase, as the case may be, will be free and clear of all Liens created by any information concerning any Partnership Entity which is not set forth or through the Selling Unitholder (or Liens arising pursuant to this Agreement); upon payment of the consideration for the Selling Unitholder Units to be sold by such Selling Unitholder as provided in this Agreement and the crediting of such Selling Unitholder Units to the “security account” (within the meaning of Section 8-105(a) of the Uniform Commercial Code of the State of New York (the “UCC”)) of each of the Underwriters maintained in the Registration Statementrecords of DTC, each of the Underwriters will become an “entitlement holder” (within the meaning of Section 8-102(a)(7) of the UCC) of the “financial asset” (within the meaning of Section 8-102(a)(9) of the UCC) comprising the Selling Unitholder Units purchased by it from such Selling Unitholder, and, assuming that none of the Underwriters has “notice of an adverse claim” (within the meaning of Section 8-105 of the UCC) with respect to such Selling Unitholder Units, each of the Underwriters will acquire a “security entitlement” (within the meaning of Section 8-102(a)(17) of the UCC) to the Selling Unitholder Units purchased by such Underwriter from such Selling Unitholder. For purposes of this Section 4(f), the Disclosure Package Selling Unitholders may assume that when such payment, delivery and crediting occur, (A) such Selling Unitholder Units will have been registered in the name of Cede & Co. or another nominee designated by DTC, in each case on the Partnership’s unit registry in accordance with the Partnership Agreement and applicable law, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC;
(g) the Selling Unitholder Units to be sold by such Selling Unitholder under this Agreement are not subject to any option, warrant, put, call, right of first refusal or other right to purchase or otherwise acquire any such securities other than pursuant to this Agreement and the Partnership Agreement;
(A) no filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency, domestic or foreign, (B) no authorization, approval, vote or other consent of any security holder, if any, or creditor of such Selling Unitholder, and (C) no authorization, approval, vote or other consent of any other person or entity, is necessary or required for the execution or delivery by such Selling Unitholder of, or the Prospectusperformance by such Selling Unitholder of its obligations under, this Agreement for the sale and delivery by such Selling Unitholder of the Selling Unitholder Units to be sold by it under this Agreement, or for the consummation by such Selling Unitholder of the other transactions contemplated by this Agreement, except such as may be required under the Act or state securities sky laws or such as has been obtained; and
(i) such Selling Unitholder does not have any preemptive rights, rights of first refusal or other similar rights to purchase or otherwise acquire any of the Units that are to be sold by the Partnership or any of the other Selling Unitholders pursuant to this Agreement. Any In addition, any certificate signed by or on behalf any Selling Unitholder and delivered to the Representatives Underwriters or counsel for the Underwriters in connection with the offering of the Units shall be deemed to be a representation and warranty by such the Selling Unitholder, as to matters covered thereby, to each Underwriter.
Appears in 1 contract
