Representations, Warranties and Agreements of the Selling Unitholder Parties. The Selling Unitholder Parties represent, warrant and agree that: (a) BROG has, and immediately prior to the applicable Delivery Date will have, good and valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Units to be sold by the Selling Unitholder Parties hereunder, free and clear of all liens, encumbrances, equities or claims; (b) Upon payment for the Units to be sold by such Selling Unitholder Parties, delivery of such Units, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Units in the name of Cede or such other nominee and the crediting of such Units on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC to such Units), (i) DTC shall be a “protected purchaser” of such Units within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Units and (iii) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Units may be asserted against the Underwriters with respect to such security entitlement. For purposes of this representation, such Selling Unitholder Parties may assume that when such payment, delivery and crediting occur, (A) such Units will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Trust’s share registry in accordance with its organizational documents 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. (c) Each of the Selling Unitholder Parties has been duly organized, is validly existing and in good standing under the laws of its jurisdiction of organization and is duly qualified to do business and in good standing as a foreign corporation or other business entity in each jurisdiction in which its ownership or lease of property or the conduct of its business requires such qualification, except where the failure to be so qualified or in good standing, individually or in the aggregate, could not reasonably be expected to have a material adverse effect on the condition (financial or otherwise), distributable income, assets, management, business or prospects of the Selling Unitholder Parties (a “BR Material Adverse Effect”). Each of the Selling Unitholder Parties has all power and authority necessary to own or hold its assets and to conduct the business in which it is engaged. (d) The Selling Unitholder Parties have full right, power and authority, corporate or otherwise, to enter into this Agreement. The execution, delivery and performance of this Agreement by the Selling Unitholder Parties and the consummation by the Selling Unitholder Parties of the transactions contemplated hereby do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, license or other agreement or instrument to which the Selling Unitholder Parties are a party or by which the Selling Unitholder Parties are bound or to which any of the property or assets of the Selling Unitholder Parties is subject, (ii) result in any violation of the provisions of the charter, by-laws or partnership agreement (or similar organizational documents) of the Selling Unitholder Parties or (iii) result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Selling Unitholder Parties or the property or assets of the Selling Unitholder Parties which breaches or violations, in the case of clauses (i) or (iii), would, individually or in the aggregate, cause a BR Material Adverse Effect or impede or delay the sale of any Units contemplated by this Agreement. (e) Except for the registration of the Offered Units under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws in connection with the purchase and sale of the Offered Units by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over the Selling Unitholder Parties or the property or assets of the Selling Unitholder Parties is required for the execution, delivery and performance of this Agreement by the Selling Unitholder Parties and the consummation by the Selling Unitholder Parties of the transactions contemplated hereby. (f) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Unitholder Parties.
Appears in 2 contracts
Samples: Underwriting Agreement (Burlington Resources Inc), Underwriting Agreement (Permian Basin Royalty Trust)
Representations, Warranties and Agreements of the Selling Unitholder Parties. The Selling Unitholder Parties represent, warrant and agree that:
(a) BROG has, and immediately prior to the applicable Delivery Date will have, good and valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Units to be sold by the Selling Unitholder Parties hereunder, free and clear of all liens, encumbrances, equities or claims;
(b) Upon payment for the Units to be sold by such Selling Unitholder Parties, delivery of such Units, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Units in the name of Cede or such other nominee and the crediting of such Units on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC to such Units), (i) DTC shall be a “protected purchaser” of such Units within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Units and (iii) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Units may be asserted against the Underwriters with respect to such security entitlement. For purposes of this representation, such Selling Unitholder Parties may assume that when such payment, delivery and crediting occur, (A) such Units will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Trust’s share registry in accordance with its organizational documents 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.
(c) Each of the Selling Unitholder Parties has been duly organized, is validly existing and in good standing under the laws of its jurisdiction of organization and is duly qualified to do business and in good standing as a foreign corporation or other business entity in each jurisdiction in which its ownership or lease of property or the conduct of its business requires such qualification, except where the failure to be so qualified or in good standing, individually or in the aggregate, could not reasonably be expected to have a material adverse effect on the condition (financial or otherwise), distributable income, assets, management, business or prospects of the Selling Unitholder Parties (a “BR Material Adverse Effect”). Each of the Selling Unitholder Parties has all power and authority necessary to own or hold its assets and to conduct the business in which it is engaged.
(d) The Selling Unitholder Parties have full right, power and authority, corporate or otherwise, to enter into this Agreement. The execution, delivery and performance of this Agreement by the Selling Unitholder Parties and the consummation by the Selling Unitholder Parties of the transactions contemplated hereby do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, license or other agreement or instrument to which the Selling Unitholder Parties are a party or by which the Selling Unitholder Parties are bound or to which any of the property or assets of the Selling Unitholder Parties is subject, (ii) result in any violation of the provisions of the charter, by-laws or partnership agreement (or similar organizational documents) of the Selling Unitholder Parties or (iii) result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Selling Unitholder Parties or the property or assets of the Selling Unitholder Parties which breaches or violations, in the case of clauses (i) or (iii), would, individually or in the aggregate, cause a BR Material Adverse Effect or impede or delay the sale of any Units contemplated by this Agreement.
(e) Except for the registration of the Offered Units under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws in connection with the purchase and sale of the Offered Units by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over the Selling Unitholder Parties or the property or assets of the Selling Unitholder Parties is required for the execution, delivery and performance of this Agreement by the Selling Unitholder Parties and the consummation by the Selling Unitholder Parties of the transactions contemplated hereby.
(f) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Unitholder Parties.
(g) The Selling Unitholder Parties have not taken and will not take, directly or indirectly, any action that is designed to or which has constituted or which could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Trust to facilitate the sale or resale of the Offered Units.
(h) The documents incorporated by reference in the Registration Statement and the Prospectus from Burlington’s filings with the Commission, when filed with the Commission, conformed in all material respects to the requirements of the Exchange Act and the rules and regulations of the Commission thereunder, and none of such documents contained, or on the applicable Delivery Date will contain, an untrue statement of a material fact or omitted, or on the applicable Delivery Date will omit, to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and any further documents so filed by the Selling Unitholder Parties and incorporated by reference in the Registration Statement and the Prospectus, when filed with Commission, will conform in all material respects to the requirements of the Securities Act and the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading.
(i) The historical statements (including the related notes and supporting schedules) or Burlington filed as part of the Registration Statement or included or incorporated by reference in the Prospectus from the Selling Unitholders Parties’ filings with the Commission comply as to form in all material respects with the requirements of Regulation S-X under the Securities Act and present fairly the financial condition, results of operations and cash flows of the entities purported to be shown thereby at the dates and for the periods indicated and have been prepared in conformity with accounting principles generally accepted in the United States applied on a consistent basis throughout the periods involved, except as otherwise stated therein.
(j) PricewaterhouseCoopers LLP, whose report with respect to the financial statements of Burlington appears in the Prospectus or is incorporated by reference therein and who have delivered the initial letter referred to in Section 9(f)(2) hereof, is an independent registered public accounting firm as required by the Securities Act and the Rules and Regulations.
(k) Sxxxxxx Associate Limited and Mxxxxx and Lxxxx, Ltd., whose reports with respect to certain properties of the Selling Unitholder Parties appear in the Prospectus (or are incorporated by reference therein), were, as of the dates of such reports, and are, as of the date hereof, independent petroleum engineers with respect to the Selling Unitholder Parties.
(l) The Selling Unitholder Parties have not sold or issued any securities that would be integrated with the offering of the Offered Units contemplated by this Agreement pursuant to the Securities Act, the Rules and Regulations or the interpretations thereof by the Commission. Any certificate signed by any officer of the Selling Unitholder Parties and delivered to the Representatives or counsel for the Underwriters in connection with the offering of the Offered Units shall be deemed a representation and warranty by such Selling Unitholder Parties, as to matters covered thereby, to each Underwriter.
Appears in 2 contracts
Samples: Underwriting Agreement (Burlington Resources Inc), Underwriting Agreement (Permian Basin Royalty Trust)
Representations, Warranties and Agreements of the Selling Unitholder Parties. The Selling Unitholder Parties represent, warrant and agree that:
(a) BROG has, and immediately prior to the applicable Delivery Date will have, good and valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Units to be sold by the Selling Unitholder Parties hereunder, free and clear of all liens, encumbrances, equities or claims;
(b) Upon payment for the Units to be sold by such Selling Unitholder Parties, delivery of such Units, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Units in the name of Cede or such other nominee and the crediting of such Units on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC to such Units), (i) DTC shall be a “protected purchaser” of such Units within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Units and (iii) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Units may be asserted against the Underwriters with respect to such security entitlement. For purposes of this representation, such Selling Unitholder Parties may assume that when such payment, delivery and crediting occur, (A) such Units will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Trust’s share registry in accordance with its organizational documents 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.
(c) Each of the Selling Unitholder Parties has been duly organized, is validly existing and in good standing under the laws of its jurisdiction of organization and is duly qualified to do business and in good standing as a foreign corporation or other business entity in each jurisdiction in which its ownership or lease of property or the conduct of its business requires such qualification, except where the failure to be so qualified or in good standing, individually or in the aggregate, could not reasonably be expected to have a material adverse effect on the condition (financial or otherwise), distributable income, assets, management, business or prospects of the Selling Unitholder Parties (a “BR CP Material Adverse Effect”). Each of the Selling Unitholder Parties has all power and authority necessary to own or hold its assets and to conduct the business in which it is engaged.
(d) The Selling Unitholder Parties have full right, power and authority, corporate or otherwise, to enter into this Agreement. The execution, delivery and performance of this Agreement by the Selling Unitholder Parties and the consummation by the Selling Unitholder Parties of the transactions contemplated hereby do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, license or other agreement or instrument to which the Selling Unitholder Parties are a party or by which the Selling Unitholder Parties are bound or to which any of the property or assets of the Selling Unitholder Parties is subject, (ii) result in any violation of the provisions of the charter, by-laws or partnership agreement (or similar organizational documents) of the Selling Unitholder Parties or (iii) result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Selling Unitholder Parties or the property or assets of the Selling Unitholder Parties which breaches or violations, in the case of clauses (i) or (iii), would, individually or in the aggregate, cause a BR CP Material Adverse Effect or impede or delay the sale of any Units contemplated by this Agreement.
(e) Except for the registration of the Offered Units under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws in connection with the purchase and sale of the Offered Units by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over the Selling Unitholder Parties or the property or assets of the Selling Unitholder Parties is required for the execution, delivery and performance of this Agreement by the Selling Unitholder Parties and the consummation by the Selling Unitholder Parties of the transactions contemplated hereby.
(f) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Unitholder Parties.
Appears in 1 contract
Samples: Underwriting Agreement (Permian Basin Royalty Trust)
