Representations and Warranties of the Partnership Parties. The Partnership Parties represent, warrant to and agree with each Manager that: (a) The Partnership meets the requirements for use of Form S-3 under the Securities Act and has prepared and filed with the Securities and Exchange Commission (the “Commission”) a registration statement on Form S-3 (File No. 333-199312), including a form of prospectus, in conformity with the requirements of the Securities Act of 1933, as amended (the “Act”), and the rules and regulations thereunder (the “Rules and Regulations”) of the Commission for registration under the Act of the offering and sale of the Units, and such registration statement has become effective. The Registration Statement (as defined below) contains certain information concerning the offering and sale of the Common Units, including the Units, and contains additional information concerning the Partnership and its business; the Commission has not issued an order preventing or suspending the use of the Basic Prospectus (as defined below), the Prospectus Supplement (as defined below) or the Prospectus (as defined below), or the effectiveness of the Registration Statement, and no proceeding for that purpose or pursuant to Section 8A of the Act has been instituted or, to the Partnership’s knowledge, threatened by the Commission. Except where the context otherwise requires, “Registration Statement,” as used herein, means the registration statement, as amended at the time of such registration statement’s effectiveness for purposes of Section 11 of the Act, as such section applies to the Managers, as well as any new registration statement or post-effective amendment as may have been filed pursuant to Sections 4(g) of this Agreement, including (1) all financial statements and documents filed as a part thereof or incorporated or deemed to be incorporated by reference therein, (2) any information contained or incorporated by reference in a prospectus filed with the Commission pursuant to Rule 424(b) under the Act, to the extent such information is deemed, pursuant to Rule 430B or Rule 430C under the Act, to be part of the registration statement at the time of such registration statement’s effectiveness for purposes of Section 11 of the Act, as such section applies to the Managers, and (3) any registration statement filed to register the offer and sale of Units pursuant to Rule 462(b) under the Act. Except where the context otherwise requires, “Basic Prospectus,” as used herein, means the prospectus filed as part of the Registration Statement, together with any amendments or supplements thereto as of the date of this Agreement. Except where the context otherwise requires, “Prospectus Supplement,” as used herein, means the final prospectus supplement, relating to the Units, filed by the Partnership with the Commission pursuant to Rule 424(b) under the Act on or before the second business day after the date of this Agreement (or such earlier time as may be required under the Act), in the form furnished by the Partnership to the Managers in connection with the offering of the Units. Except where the context otherwise requires, “Prospectus,” as used herein, means the Prospectus Supplement together with the Basic Prospectus attached to or used with the Prospectus Supplement. Notwithstanding the foregoing, if any revised basic prospectus, prospectus supplement or prospectus shall be provided to the Managers by the Partnership for use in connection with the offering and sale of the Units which differs from the Basic Prospectus, Prospectus Supplement or Prospectus, as the case may be (whether or not such revised basic prospectus, prospectus supplement or prospectus is required to be filed by the Partnership pursuant to Rule 424(b) of the Act), the terms “Basic Prospectus,” “Prospectus Supplement” and “Prospectus” shall refer to such revised basic prospectus, prospectus supplement or prospectus, as the case may be, from and after the time it is first provided to the Managers for such use. Any reference herein to the registration statement, the Registration Statement, the Basic Prospectus, the Prospectus Supplement or the Prospectus shall be deemed to refer to and include the documents, if any, incorporated by reference, or deemed to be incorporated by reference, therein (the “Incorporated Documents”), including, unless the context otherwise requires, the documents, if any, filed as exhibits to such Incorporated Documents. Any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, the Basic Prospectus, the Prospectus Supplement or the Prospectus shall be deemed to refer to and include the filing of any document under the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (collectively, the “Exchange Act”) on or after the initial effective date of the Registration Statement, or the date of the Basic Prospectus, the Prospectus Supplement or the Prospectus, as the case may be, and deemed to be incorporated therein by reference. (b) The Registration Statement complied when it became effective, complies as of the date hereof and, as amended or supplemented, at each deemed effective date with respect to any Manager pursuant to Rule 430(B)(f)(2) of the Act, as of the time of each sale of Units pursuant to this Agreement (each, a “Time of Sale”), at each Settlement Date (as defined in Section 3(a)(vi) hereof), and at all times during which a prospectus is required by the Act to be delivered (whether physically, deemed to be delivered pursuant to Rule 153 under the Act or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Units, will comply, in all material respects, with the requirements of the Act, and the Registration Statement did not and will not, at or during such times, 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; the conditions to the use of Form S-3 in connection with the offering and sale of the Units as contemplated hereby have been satisfied; the Registration Statement meets, and the offering and sale of the Units as contemplated hereby comply with, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5)); the Basic Prospectus complied or will comply, at the time it was or will be filed with the Commission, complies as of the date hereof (if filed with the Commission on or prior to the date hereof) and, as of each Time of Sale, at each Settlement Date and at all times during which a prospectus is required by the Act to be delivered (whether physically, deemed to be delivered pursuant to Rule 153 under the Act or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Units, will comply, in all material respects, with the requirements of the Act; at no time during the period that begins on the earlier of the date of the Basic Prospectus and the date the Basic Prospectus was filed with the Commission and ends at the later of each Settlement Date and the end of the period during which a prospectus is required by the Act to be delivered (whether physically, deemed to be delivered pursuant to Rule 153 under the Act or through compliance with Rule 172 under the Act or any similar rule) did or will the Basic Prospectus, as then amended or supplemented, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; the Prospectus will comply, as of the date that it is filed with the Commission, the date of the Prospectus Supplement, each Time of Sale, each Settlement Date, and at all times during which a prospectus is required by the Act to be delivered (whether physically, deemed to be delivered pursuant to Rule 153 under the Act or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Units, in all material respects, with the requirements of the Act (including, without limitation, Section 10(a) of the Act); at no time during the period that begins on the date of the Prospectus Supplement and ends at the later of each Settlement Date and the end of the period during which a prospectus is required by the Act to be delivered (whether physically, deemed to be delivered pursuant to Rule 153 under the Act or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Units did or will the Prospectus, as then amended or supplemented, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Partnership makes no representation or warranty with respect to any statement contained in the Registration Statement, the Basic Prospectus or the Prospectus in reliance upon and in conformity with information concerning the Managers and furnished in writing by or on behalf of the Managers expressly for use in the Registration Statement, the Basic Prospectus or the Prospectus, as the case may be; each Incorporated Document, at the time such document was filed with the Commission or at the time such document became effective, as applicable, complied, in all material respects, with the requirements of the Exchange Act and did not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. For all purposes of this Agreement (including, without limitation, the provisions of this paragraph and of Section 7 of this Agreement), the Partnership and each Manager, severally and not jointly, agree that the only information furnished or to be furnished by or on behalf of such Manager expressly for use in the Registration Statement, the Basic Prospectus, the Prospectus Supplement or the Prospectus or any amendment or supplement to any of the foregoing is the statement that such Manager will not engage in any transactions that stabilize the Common Units appearing in the last sentence of the first paragraph under the caption “Plan of Distribution” in the Prospectus Supplement dated May 25, 2016. (c) For purposes of each offering of the Units pursuant to transactions under this Agreement that are not firm commitment underwritings, the Partnership will be an “ineligible issuer” (as defined in Rule 405 of the Securities Act) as of each relevant eligibility determination date for purposes of Rules 164 and 433 under the Securities Act. (d) Prior to the execution of this Agreement, the Partnership has not, directly or indirectly, offered or sold any Units by means of any “prospectus” (within the meaning of the Act) or used any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Units, and from and after the execution of this Agreement, the Partnership will not, directly or indirectly, offer or sell any Units by means of any “prospectus” (within the meaning of the Act) or use any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Units, other than the Prospectus, as amended or supplemented from time to time in accordance with the provisions of this Agreement; the Partnership has not, directly or indirectly, prepared, used or referred to any Issuer Free Writing Prospectus in connection with the sale of any Units pursuant to this Agreement, as defined in Rule 433 of the Rules and Regulations. (e) Each of the Partnership Parties has been duly formed and is validly existing as a limited partnership, limited liability company or corporation, as applicable, in good standing under the laws of its jurisdiction of organization with full power and authority to enter into and perform its respective obligations under this Agreement and consummate the transactions contemplated hereby. Each of the Partnership Entities is duly qualified to do business as a foreign limited partnership, limited liability company or corporation, as applicable, and is in good standing under the laws of each jurisdiction which requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties, taken as a whole, whether or not arising from transactions in the ordinary course of business, of the Partnership Entities, taken as a whole (a “Material Adverse Effect”), or subject the limited partners of the Partnership to any material liability or disability. (f) Memorial Resource Development Corp., a Delaware corporation (“MRD”), owns all of the issued and outstanding membership interests of the General Partner; such membership interests are duly authorized and validly issued in accordance with the Third Amended and Restated Limited Liability Company Agreement of the General Partner (the “GP LLC Agreement”), and are fully paid (to the extent required by the GP LLC Agreement) and nonassessable (except as such nonassessability may be affected by Sections 18-607 and 18-804 of the Delaware Limited Liability Company Act (the “Delaware LLC Act”)); and MRD owns such membership interests free and clear of all liens, encumbrances, security interests, charges or other claims (collectively, “Liens”), except for restrictions on transferability contained in the GP LLC Agreement or in that certain Credit Agreement dated as of June 18, 2014, by and among MRD, as borrower, the lenders party thereto, Bank of America, N.A., as administrative agent and collateral agent, and the other parties party thereto (as amended, modified and supplemented from time to time, the “MRD Credit Agreement”), or that certain Indenture, dated July 10, 2014, by and among MRD, the subsidiary guarantors named therein and U.S. Bank National Association, as trustee (the “MRD Indenture”) or as described in the Registration Statement and the Prospectus. (g) The General Partner is the sole general partner of the Partnership with a 0.1% general partner interest in the Partnership; such general partner interest has been duly authorized and validly issued in accordance with the First Amended and Restated Agreement of Limited Partnership of the Partnership, as in effect on the date hereof (the “Partnership Agreement”); and the General Partner owns such general partner interest free and clear of all Liens, except for restrictions on transferability contained in the Partnership Agreement or in the MRD Indenture, the MRD Credit Agreement, that certain Indenture, dated April 17, 2013, by and among the Partnership, Memorial Production Finance Corporation, the subsidiary guarantors named therein and U.S. Bank National Association, as trustee (as amended or supplemented, the “2021 Indenture”), that certain Indenture, dated July 17, 2014, by and among the Partnership, Memorial Production Finance Corporation, the subsidiary guarantors named therein and U.S. Bank National Association, as trustee (as amended or supplemented, the “2022 Indenture” and, together with the 2021 Indenture, the “Partnership Indentures”), or that certain Credit Agreement dated December 14, 2011, among the Operating Company, as borrower, the guarantors party thereto, ▇▇▇▇▇ Fargo Bank, National Association, as administrative agent for the lenders party thereto, and the other agents and lenders party thereto (as amended, modified and supplemented from time to time, the “Credit Agreement”) or as described in the Registration Statement and the Prospectus. (h) The General Partner and Natural Gas Partners VIII, L.P., a Delaware limited partnership (“NGP VIII”), Natural Gas Partners IX, L.P., a Delaware limited partnership (“NGP IX”) and NGP IX Offshore Holdings, L.P., a Delaware limited partnership (“NGP Holdings” and together with NGP VIII and NGP IX, the “Funds”) collectively own 100% of the Incentive Distribution Rights (as such term is defined in the Partnership Agreement, the “IDRs”) in the Partnership, in each case free and clear of all Liens, except for restrictions on transferability contained in the Partnership Agreement or
Appears in 1 contract
Sources: Equity Distribution Agreement (Memorial Production Partners LP)
Representations and Warranties of the Partnership Parties. The Each of the Partnership Parties representParties, warrant to jointly and agree with severally, represents and warrants to, and agrees with, each Manager that:Underwriter as set forth below in this Section 6.
(a) The Partnership meets the requirements for use of Form S-3 under the Securities Act and has prepared and filed with the Securities and Exchange Commission (the “Commission”) a registration statement on Form S-3 (File No. 333-199312)Registration Statement, including a form of prospectusthe Base Prospectus, in conformity with the requirements of the Securities Act of 1933, as amended (the “Act”), and the rules and regulations thereunder (the “Rules and Regulations”) of the Commission for registration under the Act of the offering and sale of the Units. The Registration Statement, and such registration statement including all amendments thereto filed prior to the Time of Sale, has become effective. The Partnership has filed with the Commission, as part of an amendment to the Registration Statement (as defined below) contains certain information concerning the offering and sale of the Common Unitsor pursuant to Rule 424(b), including one or more Preliminary Prospectuses relating to the Units, each of which has previously been furnished to you. The Partnership will file with the Commission a Prospectus relating to the Units in accordance with Rule 424(b). As filed, the Prospectus will comply in all material respects with the Act and contains the rules and regulations of the Commission thereunder and, except to the extent the Underwriters shall agree in writing to a modification, shall be in all substantive respects in the form furnished to you prior to the Time of Sale or, to the extent not completed at the Time of Sale, shall contain only such specific additional information concerning and other changes (beyond that contained in the Base Prospectus and any Preliminary Prospectus) as the Partnership has advised you, prior to the Time of Sale, will be included or made therein. The Registration Statement, at the Time of Sale, meets the requirements set forth in Rule 415(a)(1)(x).
(b) No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued and its business; no proceeding for that purpose has been initiated or, to the Commission has not issued an knowledge of any of the Partnership Parties, threatened by the Commission. No order preventing or suspending the use of the Basic any Preliminary Prospectus (as defined below), the or any Issuer Free Writing Prospectus Supplement (as defined below) or the Prospectus (as defined below), or the effectiveness of the Registration Statement, has been issued and no proceeding for that purpose or pursuant to Section 8A of the Act has been instituted initiated or, to the Partnership’s knowledgeknowledge of the Partnership Parties, threatened by the Commission. Except where .
(c) On each Effective Date, the context otherwise requires, “Registration Statement,” as used herein, means the registration statement, as amended at the time of such registration statement’s effectiveness for purposes of Section 11 of the Act, as such section applies to the Managers, as well as any new registration statement or post-effective amendment as may have been filed pursuant to Sections 4(g) of this Agreement, including (1) all financial statements and documents filed as a part thereof or incorporated or deemed to be incorporated by reference therein, (2) any information contained or incorporated by reference in a prospectus filed with the Commission pursuant to Rule 424(b) under the Act, to the extent such information is deemed, pursuant to Rule 430B or Rule 430C under the Act, to be part of the registration statement at the time of such registration statement’s effectiveness for purposes of Section 11 of the Act, as such section applies to the ManagersStatement did, and (3) any registration statement filed to register the offer and sale of Units pursuant to Rule 462(b) under the Act. Except where the context otherwise requires, “Basic Prospectus,” as used herein, means the prospectus filed as part of the Registration Statement, together with any amendments or supplements thereto as of the date of this Agreement. Except where the context otherwise requires, “Prospectus Supplement,” as used herein, means the final prospectus supplement, relating to the Units, filed by the Partnership with the Commission pursuant to Rule 424(b) under the Act on or before the second business day after the date of this Agreement (or such earlier time as may be required under the Act), in the form furnished by the Partnership to the Managers in connection with the offering of the Units. Except where the context otherwise requires, “Prospectus,” as used herein, means when the Prospectus Supplement together is first filed in accordance with the Basic Prospectus attached to or used with the Prospectus Supplement. Notwithstanding the foregoing, if any revised basic prospectus, prospectus supplement or prospectus shall be provided to the Managers by the Partnership for use in connection with the offering and sale of the Units which differs from the Basic Prospectus, Prospectus Supplement or Prospectus, as the case may be (whether or not such revised basic prospectus, prospectus supplement or prospectus is required to be filed by the Partnership pursuant to Rule 424(b) of the Act), Rules and Regulations and on the terms “Basic Prospectus,” “Prospectus Supplement” Closing Date and “Prospectus” shall refer to such revised basic prospectus, prospectus supplement or prospectus, as the case may be, from and after the time it is first provided to the Managers for such use. Any reference herein to the registration statement, the Registration Statement, the Basic Prospectuseach Option Closing Date, the Prospectus Supplement or (and any supplement thereto) will comply in all material respects with the Prospectus shall be deemed to refer to and include the documents, if any, incorporated by reference, or deemed to be incorporated by reference, therein (the “Incorporated Documents”), including, unless the context otherwise requires, the documents, if any, filed as exhibits to such Incorporated Documents. Any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, the Basic Prospectus, the Prospectus Supplement or the Prospectus shall be deemed to refer to and include the filing of any document under the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (collectively, the “Exchange Act”) on or after the initial effective date applicable requirements of the Registration Statement, or Act on the date of Effective Date and at the Basic Prospectus, the Prospectus Supplement or the Prospectus, as the case may be, and deemed to be incorporated therein by reference.
(b) The Registration Statement complied when it became effective, complies as of the date hereof and, as amended or supplemented, at each deemed effective date with respect to any Manager pursuant to Rule 430(B)(f)(2) of the Act, as of the time of each sale of Units pursuant to this Agreement (each, a “Time of Sale”), at each Settlement Date (as defined in Section 3(a)(vi) hereof), and at all times during which a prospectus is required by the Act to be delivered (whether physically, deemed to be delivered pursuant to Rule 153 under the Act or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Units, will comply, in all material respects, with the requirements of the Act, and the Registration Statement did not and will not, at or during such times, contain an any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary in order to make the statements therein not misleading; the conditions to the use of Form S-3 in connection with the offering and sale of the Units as contemplated hereby have been satisfied; the Registration Statement meets, and the offering and sale of the Units as contemplated hereby comply with, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5)); the Basic Prospectus complied or will comply, at the time it was or will be filed with the Commission, complies as of the date hereof (if filed with the Commission on or prior to the date hereof) and, as of each Time of Sale, at each Settlement Date and at all times during which a prospectus is required by the Act to be delivered (whether physically, deemed to be delivered pursuant to Rule 153 under the Act or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Units, will comply, in all material respects, with the requirements of the Act; at no time during the period that begins on the earlier of the date of the Basic Prospectus and the date the Basic Prospectus was filed with the Commission and ends at the later of each Settlement Date and the end of the period during which a prospectus is required by the Act to be delivered (whether physically, deemed to be delivered pursuant to Rule 153 under the Act or through compliance with Rule 172 under the Act or any similar rule) did or will the Basic Prospectus, as then amended or supplemented, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; the Prospectus will comply, as of the date that it is filed with the Commission, the date of the Prospectus Supplement, each Time of Sale, each Settlement Date, and at all times during which a prospectus is required by the Act to be delivered (whether physically, deemed to be delivered pursuant to Rule 153 under the Act or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Units, in all material respects, with the requirements of the Act (including, without limitation, Section 10(a) of the Act); at no time during the period that begins on the date of the Prospectus Supplement and ends at the later of each Settlement Date and the end of the period during which a prospectus is required by the Act to be delivered (whether physically, deemed to be delivered any filing pursuant to Rule 153 under 424(b) of the Act or through compliance with Rule 172 under Rules and Regulations and on the Act or any similar rule) in connection Closing Date and each Option Closing Date, the Prospectus (together with any sale of Units did or supplement thereto) will the Prospectus, as then amended or supplemented, not include an any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Partnership makes no representation representations or warranty with respect warranties as to any statement the information contained in or omitted from the Registration Statement, the Basic each Preliminary Prospectus or the Prospectus (or any supplement thereto) in reliance upon and in conformity with information concerning the Managers and furnished in writing to the Partnership by or on behalf of the Managers expressly each Underwriter specifically for use inclusion in the Registration Statement, the Basic each Preliminary Prospectus or the ProspectusProspectus (or any supplement thereto), it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in Section 9(b) hereof.
(d) As of the case may be; Time of Sale, the Closing Date and each Incorporated DocumentOption Closing Date, at (i) the time such document was filed Disclosure Package, and (ii) each electronic road show, if any, when taken together as a whole with the Commission or at the time such document became effectiveDisclosure Package, as applicable, complied, in all material respects, with the requirements of the Exchange Act and did not include an and will not contain any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. For all purposes of this Agreement (including; provided, without limitationhowever, the provisions of this paragraph and of Section 7 of this Agreement), that the Partnership makes no representations or warranties as to statements in or omissions from the Disclosure Package based upon and each Managerin conformity with written information furnished to the Partnership by or on behalf of any Underwriter specifically for use therein, severally it being understood and not jointly, agree agreed that the only such information furnished or to be furnished by or on behalf of such Manager expressly for use in the Registration Statement, the Basic Prospectus, the Prospectus Supplement or the Prospectus or any amendment or supplement to any Underwriter consists of the foregoing is the statement that information described as such Manager will not engage in any transactions that stabilize the Common Units appearing in the last sentence of the first paragraph under the caption “Plan of Distribution” in the Prospectus Supplement dated May 25, 2016Section 9(b) hereof.
(ci) For purposes At the earliest time after filing of each the Registration Statement that the Partnership or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) of the Rules and Regulations) of the Units pursuant to transactions under and (ii) as of the Time of Sale (with such date being used as the determination date for purposes of this Agreement that are not firm commitment underwritingsclause (ii)), the Partnership will be was not and is not an “ineligible issuer” Ineligible Issuer (as defined in Rule 405 of the Securities Act) as Rules and Regulations), without taking account of each relevant eligibility any determination date for purposes by the Commission pursuant to Rule 405 of the Rules 164 and 433 under Regulations that it is not necessary that the Securities ActPartnership be considered an Ineligible Issuer.
(df) Prior to Each Issuer Free Writing Prospectus does not include any information that conflicts with the execution of this Agreementinformation contained in the Registration Statement, the Partnership has not, directly most recent Preliminary Prospectus or indirectly, offered or sold any Units by means of any “prospectus” (within the meaning of the Act) or used any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Units, and from and after the execution of this Agreement, the Partnership will not, directly or indirectly, offer or sell any Units by means of any “prospectus” (within the meaning of the Act) or use any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Units, other than the Prospectus, as amended including any document incorporated by reference therein that has not been superseded or supplemented from time to time in accordance with the provisions of this Agreementmodified; provided, however, that the Partnership has not, directly makes no representations or indirectly, prepared, used warranties as to statements in or referred to omissions from any Issuer Free Writing Prospectus based upon and in connection conformity with written information furnished to the sale Partnership by or on behalf of any Units pursuant to this AgreementUnderwriter specifically for use therein, as defined in Rule 433 it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the Rules and Regulationsinformation described as such in Section 9(b) hereof.
(eg) Each of the Partnership Parties has been duly formed and is validly existing as a limited partnership, limited liability company or corporation, as applicable, in good standing under the laws of its jurisdiction of organization with full power and authority to enter into and perform its respective obligations under this Agreement and consummate the transactions contemplated hereby. Each of the Partnership Entities is duly qualified to do business as a foreign limited partnership, limited liability company or corporation, as applicable, and is in good standing under the laws of each jurisdiction which requires requires, or at the Closing Date and each Option Closing Date, if any, will require, such qualification, except where the failure to be so qualified would not have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties, taken as a whole, whether or not arising from transactions in the ordinary course of business, of on the Partnership Entities, taken as a whole (a “Material Adverse Effect”), or subject the limited partners of the Partnership to any material liability or disability.
(f) Memorial Resource Development Corp., a Delaware corporation (“MRD”), owns all of the issued and outstanding membership interests of the General Partner; such membership interests are duly authorized and validly issued in accordance with the Third Amended and Restated Limited Liability Company Agreement of the General Partner (the “GP LLC Agreement”), and are fully paid (to the extent required by the GP LLC Agreement) and nonassessable (except as such nonassessability may be affected by Sections 18-607 and 18-804 of the Delaware Limited Liability Company Act (the “Delaware LLC Act”)); and MRD owns such membership interests free and clear of all liens, encumbrances, security interests, charges or other claims (collectively, “Liens”), except for restrictions on transferability contained in the GP LLC Agreement or in that certain Credit Agreement dated as of June 18, 2014, by and among MRD, as borrower, the lenders party thereto, Bank of America, N.A., as administrative agent and collateral agent, and the other parties party thereto (as amended, modified and supplemented from time to time, the “MRD Credit Agreement”), or that certain Indenture, dated July 10, 2014, by and among MRD, the subsidiary guarantors named therein and U.S. Bank National Association, as trustee (the “MRD Indenture”) or as described in the Registration Statement and the Prospectus.
(g) The General Partner is the sole general partner of the Partnership with a 0.1% general partner interest in the Partnership; such general partner interest has been duly authorized and validly issued in accordance with the First Amended and Restated Agreement of Limited Partnership of the Partnership, as in effect on the date hereof (the “Partnership Agreement”); and the General Partner owns such general partner interest free and clear of all Liens, except for restrictions on transferability contained in the Partnership Agreement or in the MRD Indenture, the MRD Credit Agreement, that certain Indenture, dated April 17, 2013, by and among the Partnership, Memorial Production Finance Corporation, the subsidiary guarantors named therein and U.S. Bank National Association, as trustee (as amended or supplemented, the “2021 Indenture”), that certain Indenture, dated July 17, 2014, by and among the Partnership, Memorial Production Finance Corporation, the subsidiary guarantors named therein and U.S. Bank National Association, as trustee (as amended or supplemented, the “2022 Indenture” and, together with the 2021 Indenture, the “Partnership Indentures”), or that certain Credit Agreement dated December 14, 2011, among the Operating Company, as borrower, the guarantors party thereto, ▇▇▇▇▇ Fargo Bank, National Association, as administrative agent for the lenders party thereto, and the other agents and lenders party thereto (as amended, modified and supplemented from time to time, the “Credit Agreement”) or as described in the Registration Statement and the Prospectus.
(h) The General Partner and Natural Gas Partners VIII, L.P., a Delaware limited partnership (“NGP VIII”), Natural Gas Partners IX, L.P., a Delaware limited partnership (“NGP IX”) and NGP IX Offshore Holdings, L.P., a Delaware limited partnership (“NGP Holdings” and together with NGP VIII and NGP IX, the “Funds”) collectively own 100% of the Incentive Distribution Rights (as such term is defined in the Partnership Agreement, the “IDRs”) in the Partnership, in each case free and clear of all Liens, except for restrictions on transferability contained in the Partnership Agreement or
Appears in 1 contract
Sources: Underwriting Agreement (Memorial Production Partners LP)
Representations and Warranties of the Partnership Parties. The Partnership Parties representParties, jointly and severally, hereby represent and warrant to each Underwriter on the date hereof, and agree with shall be deemed to represent and warrant to each Manager Underwriter on the Closing Date and any Additional Closing Date, as the case may be, that:
(a) The Partnership meets the requirements for use of Form S-3 under the Securities Act and has prepared and filed with the Securities and Exchange Commission (the “Commission”) a registration statement on Form S-3 (File NoRegistration Statement. 333-199312)Such Registration Statement, including a form any amendments thereto filed prior to the Time of prospectusSale, in conformity with became effective upon filing. No stop order suspending the requirements effectiveness of the Securities Act of 1933Registration Statement or any post-effective amendment thereto has been issued and no proceeding for that purpose has been initiated or, as amended (to the “Act”), and the rules and regulations thereunder (the “Rules and Regulations”) knowledge of the Commission for registration under Partnership Parties, threatened by the Act of the offering and sale of the Units, and such registration statement has become effectiveCommission. The Registration Statement (as defined below) contains certain information concerning the offering and sale of the Common Units, including the Units, and contains additional information concerning the Partnership and its business; the Commission has not issued an No order preventing or suspending the use of the Basic any Preliminary Prospectus (as defined below), the or any Issuer Free Writing Prospectus Supplement (as defined below) or the Prospectus (as defined below), or the effectiveness of the Registration Statement, has been issued and no proceeding for that purpose or pursuant to Section 8A of the Act has been instituted initiated or, to the Partnership’s knowledgeknowledge of the Partnership Parties, threatened by the Commission. Except where .
(i) At the context otherwise requires, “time of filing the Registration Statement,” as used herein, means the registration statement, as amended (ii) at the time of such registration statement’s effectiveness the most recent amendment thereto for the purposes of complying with Section 11 10(a)(3) of the Act, as Act (whether such section applies to the Managers, as well as any new registration statement or amendment was by post-effective amendment as may have been amendment, incorporated report filed pursuant to Sections 4(g13 or 15(d) of this Agreement, including (1) all financial statements and documents filed as a part thereof the Exchange Act or incorporated or deemed to be incorporated by reference thereinform of prospectus), (2iii) at the time the Partnership or any information contained person acting on its behalf (within the meaning, for this clause only, of Rule 163(c)) made any offer relating to the Units in reliance on the exemption in Rule 163, and (iv) at the Time of Sale (with such date being used as the determination date for purposes of this clause (iv)), the Partnership was or incorporated is (as the case may be) a “well-known seasoned issuer” as defined in Rule 405. The Partnership agrees to pay the fees required by reference the Commission relating to the Units within the time required by Rule 456(b)(1) without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r).
(c) The Partnership was not at the time of initial filing of the Registration Statement and, at the earliest time thereafter that the Partnership or another offering participant made a prospectus “bona fide offer” (within the meaning of Rule 164(h)(2) of the Act) of the Units, is not on the date hereof and will not be on the Closing Date or any Additional Closing Date an “ineligible issuer” (as defined in Rule 405 under the Act).
(d) The Registration Statement conformed in all material respects at the time it initially became effective and the Time of Sale and will conform in all material respects on each of the Closing Date and any Additional Closing Date, if applicable, and any amendment to the Registration Statement filed after the date hereof will conform in all material respects when filed, to the applicable requirements of the Act and the Rules and Regulations. The most recent Preliminary Prospectus conformed, in all material respects, and the Prospectus will conform, in all material respects, to the applicable requirements of the Act and the Rules and Regulations when filed with the Commission pursuant to Rule 424(b) under the Act, to Rules and Regulations and on the extent such information is deemed, pursuant to Rule 430B or Rule 430C under the Act, to be part of the registration statement at the time of such registration statement’s effectiveness for purposes of Section 11 of the Act, as such section applies to the Managers, Closing Date and (3) any registration statement filed to register the offer and sale of Units pursuant to Rule 462(b) under the Act. Except where the context otherwise requires, “Basic Prospectus,” as used herein, means the prospectus filed as part of the Registration Statement, together with any amendments or supplements thereto as of the date of this Agreement. Except where the context otherwise requires, “Prospectus Supplement,” as used herein, means the final prospectus supplement, relating to the Units, filed by the Partnership with the Commission pursuant to Rule 424(b) under the Act on or before the second business day after the date of this Agreement (or such earlier time as may be required under the Act), in the form furnished by the Partnership to the Managers in connection with the offering of the Units. Except where the context otherwise requires, “Prospectus,” as used herein, means the Prospectus Supplement together with the Basic Prospectus attached to or used with the Prospectus Supplement. Notwithstanding the foregoingAdditional Closing Date, if any revised basic prospectus, prospectus supplement or prospectus shall be provided to the Managers by the Partnership for use in connection with the offering and sale of the Units which differs from the Basic Prospectus, Prospectus Supplement or Prospectus, as the case may be (whether or not such revised basic prospectus, prospectus supplement or prospectus is required to be filed by the Partnership pursuant to Rule 424(b) of the Act), the terms “Basic Prospectus,” “Prospectus Supplement” and “Prospectus” shall refer to such revised basic prospectus, prospectus supplement or prospectus, as the case may be, from and after the time it is first provided to the Managers for such use. Any reference herein to the registration statement, the Registration Statement, the Basic Prospectus, the Prospectus Supplement or the Prospectus shall be deemed to refer to and include the documents, if any, incorporated by reference, or deemed to be incorporated by reference, therein (the “Incorporated Documents”), including, unless the context otherwise requires, the documents, if any, filed as exhibits to such Incorporated Documents. Any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, the Basic Prospectus, the Prospectus Supplement or the Prospectus shall be deemed to refer to and include the filing of any document under the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (collectively, the “Exchange Act”) on or after the initial effective date of the Registration Statement, or the date of the Basic Prospectus, the Prospectus Supplement or the Prospectus, as the case may be, and deemed to be incorporated therein by referenceapplicable.
(be) The Registration Statement complied when it became effective, complies as of the date hereof and, as amended or supplemented, at each deemed effective date with respect to any Manager pursuant to Rule 430(B)(f)(2) of the Actdid not, as of the time of each sale of Units pursuant to this Agreement (each, a “Time of Sale”), at each Settlement Date (as defined in Section 3(a)(vi) hereof), and at all times during which a prospectus is required by the Act to be delivered (whether physically, deemed to be delivered pursuant to Rule 153 under the Act or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Units, will comply, in all material respects, with the requirements of the Act, and the Registration Statement did not and will not, at or during such times, 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; the conditions provided that no representation or warranty is made as to the use of Form S-3 information contained in connection with the offering and sale of the Units as contemplated hereby have been satisfied; or omitted from the Registration Statement meetsin reliance upon and in conformity with written information furnished to the Partnership Parties through the Representatives by or on behalf of any Underwriter specifically for inclusion therein.
(f) The Prospectus will not, and the offering and sale as of the Units as contemplated hereby comply withits date, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5)); the Basic Prospectus complied or will comply, at the time date it was or will be filed with the Commission, complies as of or on the date hereof (if filed with the Commission on or prior to the date hereof) and, as of each Time of Sale, at each Settlement Closing Date and at all times during which a prospectus is required by the Act to be delivered (whether physically, deemed to be delivered pursuant to Rule 153 under the Act or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of UnitsAdditional Closing Date, will comply, in all material respects, with the requirements of the Act; at no time during the period that begins on the earlier of the date of the Basic Prospectus and the date the Basic Prospectus was filed with the Commission and ends at the later of each Settlement Date and the end of the period during which a prospectus is required by the Act to be delivered (whether physically, deemed to be delivered pursuant to Rule 153 under the Act or through compliance with Rule 172 under the Act or any similar rule) did or will the Basic Prospectus, as then amended or supplementedif applicable, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that no representation or warranty is made as to information included in or omitted from the Prospectus will complyin reliance upon and in conformity with written information furnished to the Partnership Parties through the Representatives by or on behalf of any Underwriter specifically for inclusion therein.
(g) The Time of Sale Information did not, as of the date that it is filed with the Commission, the date of the Prospectus Supplement, each Time of Sale, each Settlement Date, and at all times during which a prospectus is required by the Act to be delivered (whether physically, deemed to be delivered pursuant to Rule 153 under the Act or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Units, in all material respects, with the requirements of the Act (including, without limitation, Section 10(a) of the Act); at no time during the period that begins on the date of the Prospectus Supplement and ends at the later of each Settlement Date and the end of the period during which a prospectus is required by the Act to be delivered (whether physically, deemed to be delivered pursuant to Rule 153 under the Act or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Units did or will the Prospectus, as then amended or supplemented, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, provided that the Partnership makes no representation or warranty with respect is made as to any statement contained information included in or omitted from the Registration Statement, the Basic Prospectus or the Prospectus Time of Sale Information in reliance upon and in conformity with written information concerning furnished to the Managers and furnished in writing Partnership Parties through the Representatives by or on behalf of any Underwriter specifically for inclusion therein.
(h) No Issuer Free Writing Prospectus (including, without limitation, any road show that is a free writing prospectus under Rule 433 of the Managers expressly for use in Rules and Regulations), when considered together with the Registration Statement, the Basic Prospectus or the Prospectus, as the case may be; each Incorporated Document, Time of Sale Information at the time such document was filed with the Commission or at the time such document became effectiveTime of Sale, as applicable, complied, in all material respects, with the requirements of the Exchange Act and did not include included an untrue statement of a material fact or omit omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. For all purposes ; provided that no representation or warranty is made as to information included in or omitted from the Time of this Agreement (including, without limitation, the provisions of this paragraph Sale Information in reliance upon and of Section 7 of this Agreement), in conformity with written information furnished to the Partnership and each Manager, severally and not jointly, agree that Parties through the only information furnished or to be furnished Representatives by or on behalf of such Manager expressly any Underwriter specifically for use in the Registration Statement, the Basic Prospectus, the Prospectus Supplement or the Prospectus or any amendment or supplement to any of the foregoing is the statement that such Manager will not engage in any transactions that stabilize the Common Units appearing in the last sentence of the first paragraph under the caption “Plan of Distribution” in the Prospectus Supplement dated May 25, 2016inclusion therein.
(ci) For purposes of each offering Each Issuer Free Writing Prospectus conformed or will conform in all material respects to the requirements of the Units pursuant to transactions under this Agreement that are not firm commitment underwritingsAct and the Rules and Regulations on the date of first use, the Partnership will be an “ineligible issuer” (as defined in Rule 405 of the Securities Act) as of each relevant eligibility determination date for purposes of Rules 164 and 433 under the Securities Act.
(d) Prior to the execution of this Agreement, the Partnership has not, directly or indirectly, offered or sold complied with all prospectus delivery and any filing requirements applicable to such Issuer Free Writing Prospectus pursuant to the Rules and Regulations. The Partnership has not made any offer relating to the Units by means of any “prospectus” (within that would constitute an Issuer Free Writing Prospectus without the meaning prior written consent of the Act) or used any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Units, and from and after the execution of this Agreement, the Representatives. The Partnership will not, directly or indirectly, offer or sell any Units by means of any “prospectus” (within the meaning of the Act) or use any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Units, other than the Prospectus, as amended or supplemented from time to time has retained in accordance with the provisions of this Agreement; the Partnership has not, directly or indirectly, prepared, used or referred to any Rules and Regulations all Issuer Free Writing Prospectus in connection with the sale of any Units Prospectuses that were not required to be filed pursuant to this Agreement, the Rules and Regulations. The Partnership has taken all actions necessary so that any “road show” (as defined in Rule 433 of the Rules and Regulations) in connection with the offering of the Units will not be required to be filed pursuant to the Rules and Regulations.
(ej) The Partnership (i) has not alone engaged in any Testing-the-Waters Communication, (ii) has not authorized anyone to engage in such communications, other than the Representatives, and (iii) has not distributed or approved for distribution any Testing-the-Waters Communication that is a “written communication” within the meaning of Rule 405 under the Act, other than those listed on Schedule VI hereto.
(k) Each of the Partnership Parties has been Entities is duly formed organized and is validly existing as a limited partnership, limited liability company or corporation, as applicable, limited partnership in good standing under the laws of its the jurisdiction of its formation or organization with full requisite limited liability company or limited partnership power and authority to enter into own, lease and perform operate its respective obligations under this Agreement properties and consummate to conduct its business as presently conducted and as described in the transactions contemplated hereby. Each Registration Statement, the Time of Sale Information and the Partnership Entities Prospectus (and any amendment or supplement thereto) and is duly registered and qualified to do conduct its business as a foreign limited partnership, limited liability company or corporation, as applicable, and is in good standing under the laws of in each jurisdiction which requires such qualificationlisted opposite its name on Schedule V hereto, except where the failure to be so qualified would register or qualify has not had or will not have a material adverse effect on the condition (financial or otherwiseother), prospectsbusiness, earnings, business or properties, taken as a wholenet worth, whether results of operations or not arising from transactions in the ordinary course of business, prospects of the Partnership Entities, taken as a whole (a “Material Adverse Effect”).
(l) The General Partner has, or subject and at the Closing Date and any Additional Closing Date, will have, requisite limited partners liability company power and authority to serve as general partner of the Partnership to any in all material liability or disabilityrespects as disclosed in the Registration Statement, the Time of Sale Information and the Prospectus.
(fm) Memorial Resource Development Corp.The General Partner is, and at the Closing Date and any Additional Closing Date, if applicable, will be, the sole general partner of the Partnership, with a Delaware corporation non-economic general partner interest in the Partnership (the “MRDGP Interest”), owns all of ; the issued and outstanding membership interests of the General Partner; such membership interests are GP Interest has been duly authorized and validly issued in accordance with the Third Fifth Amended and Restated Limited Liability Company Agreement of Limited Partnership of the Partnership (as it may be amended from time to time, the “Partnership Agreement”); and the General Partner owns such general partner interest free and clear of all liens, encumbrances, security interests, equities, charges or claims (the “GP LLC AgreementLiens”), except for such Liens as permitted in the Partnership Agreement or as described in the Registration Statement, the Time of Sale Information and the Prospectus, if any.
(n) The Partnership is, and at the Closing Date, will be, the owner of approximately 86.2% of the common units of OpCo. The Partnership is, and at the Closing Date and any Additional Closing Date, if applicable, will be, the managing member of OpCo. Such equity interests have been duly authorized and validly issued in accordance with the Organizational Agreement of OpCo and are fully paid (to the extent required by the GP LLC under such Organizational Agreement) and nonassessable (except as such nonassessability may be affected by matters described in Sections 18-607 and 18-804 of the Delaware Limited Liability Company Act (the “Delaware LLC Act”)); and MRD the Partnership owns such membership equity interests free and clear of all liens, encumbrances, security interests, charges or other claims (collectively, “Liens”), except for restrictions on transferability contained in the GP LLC Agreement or in that certain Credit Agreement dated as of June 18, 2014, by and among MRD, as borrower, the lenders party thereto, Bank of America, N.A., as administrative agent and collateral agent, and the other parties party thereto (as amended, modified and supplemented from time to time, the “MRD Credit Agreement”), or that certain Indenture, dated July 10, 2014, by and among MRD, the subsidiary guarantors named therein and U.S. Bank National Association, as trustee (the “MRD Indenture”) or as described in the Registration Statement and the Prospectus.
(g) The General Partner is the sole general partner of the Partnership with a 0.1% general partner interest in the Partnership; such general partner interest has been duly authorized and validly issued in accordance with the First Amended and Restated Agreement of Limited Partnership of the Partnership, as in effect on the date hereof (the “Partnership Agreement”); and the General Partner owns such general partner interest free and clear of all Liens, except for restrictions on transferability contained in the Partnership Agreement or in the MRD Indenture, the MRD Credit Agreement, that certain Indenture, dated April 17, 2013, by and among other than Liens incurred pursuant to the Partnership, Memorial Production Finance Corporation, the subsidiary guarantors named therein ’s Amended and U.S. Bank National Association, as trustee (as amended or supplemented, the “2021 Indenture”), that certain Indenture, dated July 17, 2014, by and among the Partnership, Memorial Production Finance Corporation, the subsidiary guarantors named therein and U.S. Bank National Association, as trustee (as amended or supplemented, the “2022 Indenture” and, together with the 2021 Indenture, the “Partnership Indentures”), or that certain Restated Credit Agreement dated December 14as of June 13, 2011, among the Operating Company, as borrower, the guarantors party thereto, ▇▇▇▇▇ Fargo Bank, National Association, as administrative agent for the lenders party thereto, and the other agents and lenders party thereto 2023 (as amended, restated or otherwise modified and supplemented from time to time, the “Credit Agreement”) or as described set forth in the Registration Statement Statement, the Time of Sale Information and the Prospectus.
(h) The General Partner and Natural Gas Partners VIII. As used herein, L.P.“Organizational Agreement” means the limited liability company agreement, a Delaware limited partnership (“NGP VIII”)agreement or partnership agreement, Natural Gas Partners IXas applicable, L.P., a Delaware limited partnership (“NGP IX”) and NGP IX Offshore Holdings, L.P., a Delaware limited partnership (“NGP Holdings” and together with NGP VIII and NGP IX, the “Funds”) collectively own 100% of the Incentive Distribution Rights (as such term is defined in the Partnership Agreement, the “IDRs”) in the Partnership, in each case free and clear of all Liens, except for restrictions on transferability contained in the Partnership Agreement or an entity.
Appears in 1 contract
Sources: Underwriting Agreement (Kimbell Royalty Partners, LP)
Representations and Warranties of the Partnership Parties. The Partnership Parties representParties, jointly and severally, hereby represent and warrant to each Underwriter on the date hereof, and agree with shall be deemed to represent and warrant to each Manager Underwriter on the Closing Date and any Additional Closing Date, as the case may be, that:
(a) The Partnership meets Registration Statement has been filed with, and been declared effective by, the requirements for use of Form S-3 under Commission. No stop order suspending the Securities Act and has prepared and filed with the Securities and Exchange Commission (the “Commission”) a registration statement on Form S-3 (File No. 333-199312), including a form of prospectus, in conformity with the requirements effectiveness of the Securities Act of 1933Registration Statement or any post-effective amendment thereto has been issued and no proceeding for that purpose has been initiated or, as amended (to the “Act”), and the rules and regulations thereunder (the “Rules and Regulations”) knowledge of the Commission for registration under Partnership Parties, threatened by the Act of the offering and sale of the Units, and such registration statement has become effectiveCommission. The Registration Statement (as defined below) contains certain information concerning the offering and sale of the Common Units, including the Units, and contains additional information concerning the Partnership and its business; the Commission has not issued an No order preventing or suspending the use of the Basic any Preliminary Prospectus (as defined below), the or any Issuer Free Writing Prospectus Supplement (as defined below) or the Prospectus (as defined below), or the effectiveness of the Registration Statement, has been issued and no proceeding for that purpose or pursuant to Section 8A of the Act has been instituted initiated or, to the Partnership’s knowledgeknowledge of the Partnership Parties, threatened by the Commission. Except where the context otherwise requires, “Registration Statement,” as used herein, means the registration statement, as amended .
(b) The Partnership was not at the time of such registration statement’s effectiveness for purposes initial filing of Section 11 the Registration Statement and, at the earliest time thereafter that the Partnership or another offering participant made a “bona fide offer” (within the meaning of Rule 164(h)(2) of the Act) of the Units, is not on the date hereof and will not be on the Closing Date or any Additional Closing Date an “ineligible issuer” (as such section applies defined in Rule 405 under the Act).
(c) The Registration Statement conformed in all material respects at the time it initially became effective and the Time of Sale and will conform in all material respects on each of the Closing Date and any Additional Closing Date, if applicable, and any amendment to the ManagersRegistration Statement filed after the date hereof will conform in all material respects when filed, as well as any new registration statement or post-effective amendment as may have been filed pursuant to Sections 4(g) the applicable requirements of this Agreementthe Act and the Rules and Regulations. The most recent Preliminary Prospectus conformed, including (1) in all financial statements material respects, and documents filed as a part thereof or incorporated or deemed the Prospectus will conform, in all material respects, to be incorporated by reference therein, (2) any information contained or incorporated by reference in a prospectus the applicable requirements of the Act and the Rules and Regulations when filed with the Commission pursuant to Rule 424(b) under the Act, to Rules and Regulations and on the extent such information is deemed, pursuant to Rule 430B or Rule 430C under the Act, to be part of the registration statement at the time of such registration statement’s effectiveness for purposes of Section 11 of the Act, as such section applies to the Managers, Closing Date and (3) any registration statement filed to register the offer and sale of Units pursuant to Rule 462(b) under the Act. Except where the context otherwise requires, “Basic Prospectus,” as used herein, means the prospectus filed as part of the Registration Statement, together with any amendments or supplements thereto as of the date of this Agreement. Except where the context otherwise requires, “Prospectus Supplement,” as used herein, means the final prospectus supplement, relating to the Units, filed by the Partnership with the Commission pursuant to Rule 424(b) under the Act on or before the second business day after the date of this Agreement (or such earlier time as may be required under the Act), in the form furnished by the Partnership to the Managers in connection with the offering of the Units. Except where the context otherwise requires, “Prospectus,” as used herein, means the Prospectus Supplement together with the Basic Prospectus attached to or used with the Prospectus Supplement. Notwithstanding the foregoingAdditional Closing Date, if any revised basic prospectus, prospectus supplement or prospectus shall be provided to the Managers by the Partnership for use in connection with the offering and sale of the Units which differs from the Basic Prospectus, Prospectus Supplement or Prospectus, as the case may be (whether or not such revised basic prospectus, prospectus supplement or prospectus is required to be filed by the Partnership pursuant to Rule 424(b) of the Act), the terms “Basic Prospectus,” “Prospectus Supplement” and “Prospectus” shall refer to such revised basic prospectus, prospectus supplement or prospectus, as the case may be, from and after the time it is first provided to the Managers for such use. Any reference herein to the registration statement, the Registration Statement, the Basic Prospectus, the Prospectus Supplement or the Prospectus shall be deemed to refer to and include the documents, if any, incorporated by reference, or deemed to be incorporated by reference, therein (the “Incorporated Documents”), including, unless the context otherwise requires, the documents, if any, filed as exhibits to such Incorporated Documents. Any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, the Basic Prospectus, the Prospectus Supplement or the Prospectus shall be deemed to refer to and include the filing of any document under the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (collectively, the “Exchange Act”) on or after the initial effective date of the Registration Statement, or the date of the Basic Prospectus, the Prospectus Supplement or the Prospectus, as the case may be, and deemed to be incorporated therein by referenceapplicable.
(bd) The Registration Statement complied when it became effective, complies as of the date hereof and, as amended or supplemented, at each deemed effective date with respect to any Manager pursuant to Rule 430(B)(f)(2) of the Actdid not, as of the time of each sale of Units pursuant to this Agreement (each, a “Time of Sale”), at each Settlement Date (as defined in Section 3(a)(vi) hereof), and at all times during which a prospectus is required by the Act to be delivered (whether physically, deemed to be delivered pursuant to Rule 153 under the Act or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Units, will comply, in all material respects, with the requirements of the Act, and the Registration Statement did not and will not, at or during such times, 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; the conditions provided that no representation or warranty is made as to the use of Form S-3 information contained in connection with the offering and sale of the Units as contemplated hereby have been satisfied; or omitted from the Registration Statement meetsin reliance upon and in conformity with written information furnished to the Partnership Parties through the Representative by or on behalf of any Underwriter specifically for inclusion therein.
(e) The Prospectus will not, and the offering and sale as of the Units as contemplated hereby comply withits date, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5)); the Basic Prospectus complied or will comply, at the time date it was or will be filed with the Commission, complies as of or on the date hereof (if filed with the Commission on or prior to the date hereof) and, as of each Time of Sale, at each Settlement Closing Date and at all times during which a prospectus is required by the Act to be delivered (whether physically, deemed to be delivered pursuant to Rule 153 under the Act or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of UnitsAdditional Closing Date, will comply, in all material respects, with the requirements of the Act; at no time during the period that begins on the earlier of the date of the Basic Prospectus and the date the Basic Prospectus was filed with the Commission and ends at the later of each Settlement Date and the end of the period during which a prospectus is required by the Act to be delivered (whether physically, deemed to be delivered pursuant to Rule 153 under the Act or through compliance with Rule 172 under the Act or any similar rule) did or will the Basic Prospectus, as then amended or supplementedif applicable, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that no representation or warranty is made as to information included in or omitted from the Prospectus will complyin reliance upon and in conformity with written information furnished to the Partnership Parties through the Representative by or on behalf of any Underwriter specifically for inclusion therein.
(f) The Time of Sale Information did not, as of the date that it is filed with the Commission, the date of the Prospectus Supplement, each Time of Sale, each Settlement Date, and at all times during which a prospectus is required by the Act to be delivered (whether physically, deemed to be delivered pursuant to Rule 153 under the Act or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Units, in all material respects, with the requirements of the Act (including, without limitation, Section 10(a) of the Act); at no time during the period that begins on the date of the Prospectus Supplement and ends at the later of each Settlement Date and the end of the period during which a prospectus is required by the Act to be delivered (whether physically, deemed to be delivered pursuant to Rule 153 under the Act or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Units did or will the Prospectus, as then amended or supplemented, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, provided that the Partnership makes no representation or warranty with respect is made as to any statement contained information included in or omitted from the Registration Statement, the Basic Prospectus or the Prospectus Time of Sale Information in reliance upon and in conformity with written information concerning furnished to the Managers and furnished in writing Partnership Parties through the Representative by or on behalf of any Underwriter specifically for inclusion therein.
(g) No Issuer Free Writing Prospectus (including, without limitation, any road show that is a free writing prospectus under Rule 433 of the Managers expressly for use in Rules and Regulations), when considered together with the Registration Statement, the Basic Prospectus or the Prospectus, as the case may be; each Incorporated Document, Time of Sale Information at the time such document was filed with the Commission or at the time such document became effectiveTime of Sale, as applicable, complied, in all material respects, with the requirements of the Exchange Act and did not include included an untrue statement of a material fact or omit omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. For all purposes ; provided that no representation or warranty is made as to information included in or omitted from the Time of this Agreement (including, without limitation, the provisions of this paragraph Sale Information in reliance upon and of Section 7 of this Agreement), in conformity with written information furnished to the Partnership and each Manager, severally and not jointly, agree that Parties through the only information furnished or to be furnished Representative by or on behalf of such Manager expressly any Underwriter specifically for use in the Registration Statement, the Basic Prospectus, the Prospectus Supplement or the Prospectus or any amendment or supplement to any of the foregoing is the statement that such Manager will not engage in any transactions that stabilize the Common Units appearing in the last sentence of the first paragraph under the caption “Plan of Distribution” in the Prospectus Supplement dated May 25, 2016inclusion therein.
(ch) For purposes of each offering Each Issuer Free Writing Prospectus conformed or will conform in all material respects to the requirements of the Units pursuant to transactions under this Agreement that are not firm commitment underwritingsAct and the Rules and Regulations on the date of first use, the Partnership will be an “ineligible issuer” (as defined in Rule 405 of the Securities Act) as of each relevant eligibility determination date for purposes of Rules 164 and 433 under the Securities Act.
(d) Prior to the execution of this Agreement, the Partnership has not, directly or indirectly, offered or sold complied with all prospectus delivery and any filing requirements applicable to such Issuer Free Writing Prospectus pursuant to the Rules and Regulations. The Partnership has not made any offer relating to the Units by means of any “prospectus” (within that would constitute an Issuer Free Writing Prospectus without the meaning prior written consent of the Act) or used any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Units, and from and after the execution of this Agreement, the Representative. The Partnership will not, directly or indirectly, offer or sell any Units by means of any “prospectus” (within the meaning of the Act) or use any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Units, other than the Prospectus, as amended or supplemented from time to time has retained in accordance with the provisions of this Agreement; the Partnership has not, directly or indirectly, prepared, used or referred to any Rules and Regulations all Issuer Free Writing Prospectus in connection with the sale of any Units Prospectuses that were not required to be filed pursuant to this Agreement, the Rules and Regulations. The Partnership has taken all actions necessary so that any “road show” (as defined in Rule 433 of the Rules and Regulations) in connection with the offering of the Units will not be required to be filed pursuant to the Rules and Regulations.
(ei) From the time of filing of the Registration Statement through the date hereof, the Partnership has been and is an Emerging Growth Company.
(j) The Partnership (i) has not alone engaged in any Testing-the-Waters Communication, (ii) has not authorized anyone to engage in such communications, other than the Representative, and (iii) has not distributed or approved for distribution any Testing-the-Waters Communication that is a “written communication” within the meaning of Rule 405 under the Act, other than those listed on Schedule VI hereto.
(k) Each of the Partnership Parties has been Entities is duly formed organized and is validly existing as a limited partnership, limited liability company or corporation, as applicable, limited partnership in good standing under the laws of its the jurisdiction of its formation or organization with full requisite limited liability company or limited partnership power and authority to enter into own, lease and perform operate its respective obligations under this Agreement properties and consummate to conduct its business as presently conducted and as described in the transactions contemplated hereby. Each Registration Statement, the Time of Sale Information and the Partnership Entities Prospectus (and any amendment or supplement thereto) and is duly registered and qualified to do conduct its business as a foreign limited partnership, limited liability company or corporation, as applicable, and is in good standing under the laws of in each jurisdiction which requires such qualificationlisted opposite its name on Schedule V hereto, except where the failure to be so qualified would register or qualify has not had or will not have a material adverse effect on the condition (financial or otherwiseother), prospectsbusiness, earnings, business or properties, taken as a wholenet worth, whether results of operations or not arising from transactions in the ordinary course of business, prospects of the Partnership Entities, taken as a whole (a “Material Adverse Effect”).
(l) The General Partner has, or subject and at the Closing Date and any Additional Closing Date, will have, requisite limited partners liability company power and authority to serve as general partner of the Partnership to any in all material liability or disabilityrespects as disclosed in the Registration Statement, the Time of Sale Information and the Prospectus.
(fm) Memorial Resource Development Corp.The General Partner is, and at the Closing Date and any Additional Closing Date, if applicable, will be, the sole general partner of the Partnership, with a Delaware corporation non-economic general partner interest in the Partnership (the “MRDGP Interest”), owns all of ; the issued and outstanding membership interests of the General Partner; such membership interests are GP Interest has been duly authorized and validly issued in accordance with the Third Amended and Restated Limited Liability Company Agreement of Limited Partnership of the Partnership (as it may be amended from time to time, the “Partnership Agreement”); and the General Partner owns such general partner interest free and clear of all Liens, except for such Liens as permitted in the Partnership Agreement or as described in the Registration Statement, the Time of Sale Information and the Prospectus, if any.
(n) The Partnership is, and at the “GP LLC Agreement”)Closing Date, will be, the owner of approximately 71.11% of the common units of OpCo and all of the issued and outstanding Series A Cumulative Convertible Preferred Units of OpCo. The Partnership is, and at the Closing Date and any Additional Closing Date, if applicable, will be, the managing member of OpCo. Such equity interests have been duly authorized and validly issued in accordance with the Organizational Agreement of OpCo and are fully paid (to the extent required by the GP LLC under such Organizational Agreement) and nonassessable (except as such nonassessability may be affected by matters described in Sections 18-607 and 18-804 of the Delaware Limited Liability Company Act (the “Delaware LLC Act”)); and MRD the Partnership owns such membership equity interests free and clear of all liens, encumbrances, security interests, equities, charges or other claims (collectively, “Liens”), except for restrictions on transferability contained in other than Liens incurred pursuant to the GP LLC Agreement or in that certain Partnership’s Credit Agreement dated as of June 18January 11, 2014, by and among MRD, as borrower, the lenders party thereto, Bank of America, N.A., as administrative agent and collateral agent, and the other parties party thereto 2017 (as amended, restated or otherwise modified and supplemented from time to time, the “MRD Credit Agreement”), or that certain Indenture, dated July 10, 2014, by and among MRD, the subsidiary guarantors named therein and U.S. Bank National Association, as trustee (the “MRD Indenture”) or as described in the Registration Statement and the Prospectus.
(g) The General Partner is the sole general partner of the Partnership with a 0.1% general partner interest in the Partnership; such general partner interest has been duly authorized and validly issued in accordance with the First Amended and Restated Agreement of Limited Partnership of the Partnership, as in effect on the date hereof (the “Partnership Agreement”); and the General Partner owns such general partner interest free and clear of all Liens, except for restrictions on transferability contained in the Partnership Agreement or in the MRD Indenture, the MRD Credit Agreement, that certain Indenture, dated April 17, 2013, by and among the Partnership, Memorial Production Finance Corporation, the subsidiary guarantors named therein and U.S. Bank National Association, as trustee (as amended or supplemented, the “2021 Indenture”), that certain Indenture, dated July 17, 2014, by and among the Partnership, Memorial Production Finance Corporation, the subsidiary guarantors named therein and U.S. Bank National Association, as trustee (as amended or supplemented, the “2022 Indenture” and, together with the 2021 Indenture, the “Partnership Indentures”), or that certain Credit Agreement dated December 14, 2011, among the Operating Company, as borrower, the guarantors party thereto, ▇▇▇▇▇ Fargo Bank, National Association, as administrative agent for the lenders party thereto, and the other agents and lenders party thereto (as amended, modified and supplemented from time to time, the “Credit Agreement”) or as described set forth in the Registration Statement Statement, the Time of Sale Information and the Prospectus.
(h) The General Partner and Natural Gas Partners VIII. As used herein, L.P.“Organizational Agreement” means the limited liability company agreement, a Delaware limited partnership (“NGP VIII”)agreement or partnership agreement, Natural Gas Partners IXas applicable, L.P., a Delaware limited partnership (“NGP IX”) and NGP IX Offshore Holdings, L.P., a Delaware limited partnership (“NGP Holdings” and together with NGP VIII and NGP IX, the “Funds”) collectively own 100% of the Incentive Distribution Rights (as such term is defined in the Partnership Agreement, the “IDRs”) in the Partnership, in each case free and clear of all Liens, except for restrictions on transferability contained in the Partnership Agreement or an entity.
Appears in 1 contract
Sources: Underwriting Agreement (Kimbell Royalty Partners, LP)
Representations and Warranties of the Partnership Parties. The Partnership Parties representParties, jointly and severally, represent and warrant to and agree with each Manager of the Underwriters that:
(a) The Partnership meets the requirements for use of Form S-3 under the Securities Act and has prepared and filed with the Securities and Exchange Commission (the “Commission”) a registration statement (File Number 333–217976) on Form S-3 (File No. 333-199312)S-1, including a form of prospectusrelated Preliminary Prospectus, in conformity with the requirements of the Securities Act of 1933, as amended (the “Act”), and the rules and regulations thereunder (the “Rules and Regulations”) of the Commission for registration under the Securities Act of the offering and sale of the Units. Such Registration Statement, including all amendments thereto filed prior to the date and such registration statement time that this Agreement is executed and delivered by the parties hereto (the “Execution Time”), has become effective. The Registration Statement (as defined belowPartnership may have filed one or more amendments thereto, including a related Preliminary Prospectus, each of which has previously been furnished to you. The Partnership will file with the Commission a final prospectus in accordance with Rule 424(b) contains certain information concerning the offering and sale of the Common UnitsSecurities Act. As filed, including such final prospectus shall contain all information required by the UnitsSecurities Act and, and contains except to the extent the Representative shall agree in writing to a modification, shall be in all substantive respects in the form furnished to the Representative prior to the Execution Time or, to the extent not completed at the Execution Time, shall contain only such specific additional information concerning and other changes (beyond that contained in the latest Preliminary Prospectus) as the Partnership and its business; has advised the Commission has not issued an Representative, prior to the Execution Time, will be included or made therein.
(b) No stop order preventing or suspending the use of the Basic Prospectus (as defined below), the Prospectus Supplement (as defined below) or the Prospectus (as defined below), or the effectiveness of the Registration Statement, any post-effective amendment thereto or any registration statement filed pursuant to Rule 462(b) has been issued under the Securities Act, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act has been instituted initiated or, to the Partnership’s knowledgeknowledge of any of the Partnership Parties, threatened by the Commission. Except where No order preventing or suspending the context otherwise requiresuse of any Preliminary Prospectus or any Issuer Free Writing Prospectus has been issued and no proceeding for that purpose has been initiated or, “Registration Statement,” as used hereinto the knowledge of the Partnership Parties, means threatened by the registration statementCommission.
(c) Each Preliminary Prospectus, as amended at the time of such registration statement’s effectiveness for purposes of Section 11 of the Actfiling thereof, as such section applies to the Managers, as well as any new registration statement or post-effective amendment as may have been filed pursuant to Sections 4(g) of this Agreement, including (1) all financial statements and documents filed as a part thereof or incorporated or deemed to be incorporated by reference therein, (2) any information contained or incorporated by reference in a prospectus filed with the Commission pursuant to Rule 424(b) under the Act, to the extent such information is deemed, pursuant to Rule 430B or Rule 430C under the Act, to be part of the registration statement at the time of such registration statement’s effectiveness for purposes of Section 11 of the Act, as such section applies to the Managers, and (3) any registration statement filed to register the offer and sale of Units pursuant to Rule 462(b) under the Act. Except where the context otherwise requires, “Basic Prospectus,” as used herein, means the prospectus filed as part of the Registration Statement, together with any amendments or supplements thereto as of the date of this Agreement. Except where the context otherwise requires, “Prospectus Supplement,” as used herein, means the final prospectus supplement, relating to the Units, filed by the Partnership with the Commission pursuant to Rule 424(b) under the Act on or before the second business day after the date of this Agreement (or such earlier time as may be required under the Act), in the form furnished by the Partnership to the Managers in connection with the offering of the Units. Except where the context otherwise requires, “Prospectus,” as used herein, means the Prospectus Supplement together with the Basic Prospectus attached to or used with the Prospectus Supplement. Notwithstanding the foregoing, if any revised basic prospectus, prospectus supplement or prospectus shall be provided to the Managers by the Partnership for use in connection with the offering and sale of the Units which differs from the Basic Prospectus, Prospectus Supplement or Prospectus, as the case may be (whether or not such revised basic prospectus, prospectus supplement or prospectus is required to be filed by the Partnership pursuant to Rule 424(b) of the Act), the terms “Basic Prospectus,” “Prospectus Supplement” and “Prospectus” shall refer to such revised basic prospectus, prospectus supplement or prospectus, as the case may be, from and after the time it is first provided to the Managers for such use. Any reference herein to the registration statement, the Registration Statement, the Basic Prospectus, the Prospectus Supplement or the Prospectus shall be deemed to refer to and include the documents, if any, incorporated by reference, or deemed to be incorporated by reference, therein (the “Incorporated Documents”), including, unless the context otherwise requires, the documents, if any, filed as exhibits to such Incorporated Documents. Any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, the Basic Prospectus, the Prospectus Supplement or the Prospectus shall be deemed to refer to and include the filing of any document under the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (collectively, the “Exchange Act”) on or after the initial effective date of the Registration Statement, or the date of the Basic Prospectus, the Prospectus Supplement or the Prospectus, as the case may be, and deemed to be incorporated therein by reference.
(b) The Registration Statement complied when it became effective, complies as of the date hereof and, as amended or supplemented, at each deemed effective date with respect to any Manager pursuant to Rule 430(B)(f)(2) of the Act, as of the time of each sale of Units pursuant to this Agreement (each, a “Time of Sale”), at each Settlement Date (as defined in Section 3(a)(vi) hereof), and at all times during which a prospectus is required by the Act to be delivered (whether physically, deemed to be delivered pursuant to Rule 153 under the Act or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Units, will comply, in all material respects, respects with the requirements of the Act, Securities Act and the Registration Statement did not and will not, at or during such times, 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; the conditions to the use of Form S-3 in connection with the offering and sale of the Units as contemplated hereby have been satisfied; the Registration Statement meets, and the offering and sale of the Units as contemplated hereby comply with, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5)); the Basic Prospectus complied or will comply, at the time it was or will be filed with the Commission, complies as of the date hereof (if filed with the Commission on or prior to the date hereof) and, as of each Time of Sale, at each Settlement Date and at all times during which a prospectus is required by the Act to be delivered (whether physically, deemed to be delivered pursuant to Rule 153 under the Act or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Units, will comply, in all material respects, with the requirements of the Act; at no time during the period that begins on the earlier of the date of the Basic Prospectus and the date the Basic Prospectus was filed with the Commission and ends at the later of each Settlement Date and the end of the period during which a prospectus is required by the Act to be delivered (whether physically, deemed to be delivered pursuant to Rule 153 under the Act or through compliance with Rule 172 under the Act or any similar rule) did or will the Basic Prospectus, as then amended or supplemented, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; , except with respect to any information with respect to the Prospectus will comply, as of Units and the date that it is filed with the Commission, the date of the Prospectus Supplement, each Time of Sale, each Settlement Date, and at all times during which a prospectus is required by the Act offering thereof permitted to be delivered (whether physically, deemed to be delivered omitted from the Registration Statement when it becomes effective pursuant to Rule 153 under 430A (“Rule 430A Information”) omitted from the Act Preliminary Prospectus. On the date and time that the Registration Statement, any post-effective amendment or through compliance amendments thereto and any Rule 462(b) Registration Statement became or becomes effective (the “Effective Date”), the Registration Statement did, and when the Prospectus is first filed in accordance with Rule 172 under 424(b) of the Securities Act or and on the Closing Date and on any similar ruledate on which Additional Units are purchased, if such date is not the Closing Date (an “Option Closing Date”), the Prospectus (and any supplement thereto) in connection with any sale of Unitswill, comply in all material respects, respects with the applicable requirements of the Act (includingSecurities Act; on the Effective Date, without limitationat the Execution Time and on the Closing Date, Section 10(a) the Registration Statement did not and will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the Act)statements therein not misleading; at no time during the period that begins and on the date of the Prospectus Supplement and ends at the later of each Settlement Date and the end of the period during which a prospectus is required by the Act to be delivered (whether physically, deemed to be delivered any filing pursuant to Rule 153 under 424(b) and on the Act or through compliance with Rule 172 under Closing Date and any Option Closing Date, the Act or any similar rule) in connection Prospectus (together with any sale of Units did or supplement thereto) will the Prospectus, as then amended or supplemented, not include an any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Partnership makes Oasis Parties make no representation representations or warranty with respect warranties as to any statement the information contained in or omitted from the Registration Statement, the Basic each Preliminary Prospectus or the Prospectus (or any supplement thereto) in reliance upon and in conformity with information concerning the Managers and furnished in writing to the Partnership by or on behalf of any Underwriter through the Managers expressly Representative specifically for use inclusion in the Registration Statement, the Basic each Preliminary Prospectus or the Prospectus (or any supplement thereto), it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in Section 10(b) hereof.
(d) As of the Execution Time, the Closing Date and each Option Closing Date, (i) the Time of Sale Prospectus, (ii) each electronic road show, when taken together as the case may be; each Incorporated Document, at the time such document was filed a whole with the Commission or at Time of Sale Prospectus, and (iii) each individual written communication with potential investors undertaken in reliance on Section 5(d) of the time such document became effectiveSecurities Act (a “Written Testing-the-Waters Communication”), when taken together as applicable, complied, in all material respects, a whole with the requirements Time of the Exchange Act Sale Prospectus, does not and did will not include an contain any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. For all purposes ; provided, however, that the Oasis Parties make no representations or warranties as to statements in or omissions from the Time of this Agreement (including, without limitation, the provisions of this paragraph Sale Prospectus based upon and of Section 7 of this Agreement), in conformity with written information furnished to the Partnership by or on behalf of any Underwriter through the Representative specifically for use therein, it being understood and each Manager, severally and not jointly, agree agreed that the only such information furnished or to be furnished by or on behalf of such Manager expressly for use in the Registration Statement, the Basic Prospectus, the Prospectus Supplement or the Prospectus or any amendment or supplement to any Underwriter consists of the foregoing is the statement that information described as such Manager will not engage in any transactions that stabilize the Common Units appearing in the last sentence of the first paragraph under the caption “Plan of Distribution” in the Prospectus Supplement dated May 25, 2016.
(cSection 10(b) For purposes of each offering of the Units pursuant to transactions under this Agreement that are not firm commitment underwritings, the Partnership will be an “ineligible issuer” (as defined in Rule 405 of the Securities Act) as of each relevant eligibility determination date for purposes of Rules 164 and 433 under the Securities Act.
(d) Prior to the execution of this Agreement, the Partnership has not, directly or indirectly, offered or sold any Units by means of any “prospectus” (within the meaning of the Act) or used any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Units, and from and after the execution of this Agreement, the Partnership will not, directly or indirectly, offer or sell any Units by means of any “prospectus” (within the meaning of the Act) or use any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Units, other than the Prospectus, as amended or supplemented from time to time in accordance with the provisions of this Agreement; the Partnership has not, directly or indirectly, prepared, used or referred to any Issuer Free Writing Prospectus in connection with the sale of any Units pursuant to this Agreement, as defined in Rule 433 of the Rules and Regulationshereof.
(e) Each of the Partnership Parties has been duly formed and is validly existing as a limited partnership, limited liability company or corporation, as applicable, in good standing under the laws of its jurisdiction of organization with full power and authority to enter into and perform its respective obligations under this Agreement and consummate the transactions contemplated hereby. Each of statements made by the Partnership Entities is duly qualified to do business as a foreign limited partnership, limited liability company or corporation, as applicable, and is in good standing under the laws of each jurisdiction which requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties, taken as a whole, whether or not arising from transactions in the ordinary course of business, of the Partnership Entities, taken as a whole (a “Material Adverse Effect”), or subject the limited partners of the Partnership to any material liability or disability.
(f) Memorial Resource Development Corp., a Delaware corporation (“MRD”), owns all of the issued and outstanding membership interests of the General Partner; such membership interests are duly authorized and validly issued in accordance with the Third Amended and Restated Limited Liability Company Agreement of the General Partner (the “GP LLC Agreement”), and are fully paid (to the extent required by the GP LLC Agreement) and nonassessable (except as such nonassessability may be affected by Sections 18-607 and 18-804 of the Delaware Limited Liability Company Act (the “Delaware LLC Act”)); and MRD owns such membership interests free and clear of all liens, encumbrances, security interests, charges or other claims (collectively, “Liens”), except for restrictions on transferability contained in the GP LLC Agreement or in that certain Credit Agreement dated as of June 18, 2014, by and among MRD, as borrower, the lenders party thereto, Bank of America, N.A., as administrative agent and collateral agent, and the other parties party thereto (as amended, modified and supplemented from time to time, the “MRD Credit Agreement”), or that certain Indenture, dated July 10, 2014, by and among MRD, the subsidiary guarantors named therein and U.S. Bank National Association, as trustee (the “MRD Indenture”) or as described in the Registration Statement and the ProspectusTime of Sale Prospectus and to be made in the Prospectus (and any supplements thereto) within the coverage of Rule 175(b) of the Securities Act, including (but not limited to) any statements with respect to projected results of operations, estimated available cash and future cash distributions of the Partnership, and any statements made in support thereof or related thereto under the heading “Our Cash Distribution Policy and Restrictions on Distributions” or the anticipated ratio of taxable income to distributions, were made or will be made with a reasonable basis and in good faith.
(f) The Partnership has made available a “bona fide electronic road show” (as defined in Rule 433(h) of the Securities Act) such that no filing of any “road show” (as defined in Rule 433(h)) is required in connection with the offering of the Units.
(g) The General Partner is (i) At the sole general partner time of the Partnership with a 0.1% general partner interest in the Partnership; such general partner interest has been duly authorized and validly issued in accordance with the First Amended and Restated Agreement of Limited Partnership of the Partnership, as in effect on the date hereof (the “Partnership Agreement”); and the General Partner owns such general partner interest free and clear of all Liens, except for restrictions on transferability contained in the Partnership Agreement or in the MRD Indenture, the MRD Credit Agreement, that certain Indenture, dated April 17, 2013, by and among the Partnership, Memorial Production Finance Corporation, the subsidiary guarantors named therein and U.S. Bank National Association, as trustee (as amended or supplemented, the “2021 Indenture”), that certain Indenture, dated July 17, 2014, by and among the Partnership, Memorial Production Finance Corporation, the subsidiary guarantors named therein and U.S. Bank National Association, as trustee (as amended or supplemented, the “2022 Indenture” and, together with the 2021 Indenture, the “Partnership Indentures”), or that certain Credit Agreement dated December 14, 2011, among the Operating Company, as borrower, the guarantors party thereto, ▇▇▇▇▇ Fargo Bank, National Association, as administrative agent for the lenders party thereto, and the other agents and lenders party thereto (as amended, modified and supplemented from time to time, the “Credit Agreement”) or as described in filing the Registration Statement and (ii) as of the Prospectus.
Execution Time (h) The General Partner and Natural Gas Partners VIII, L.P., a Delaware limited partnership with such date being used as the determination date for purposes of this clause (“NGP VIII”ii)), Natural Gas Partners IX, L.P., a Delaware limited partnership (“NGP IX”) the Partnership was not and NGP IX Offshore Holdings, L.P., a Delaware limited partnership (“NGP Holdings” and together with NGP VIII and NGP IX, the “Funds”) collectively own 100% of the Incentive Distribution Rights is not an Ineligible Issuer (as such term is defined in Rule 405), without taking account of any determination by the Commission pursuant to Rule 405 that it is not necessary that the Partnership Agreement, the “IDRs”) in the Partnership, in each case free and clear of all Liens, except for restrictions on transferability contained in the Partnership Agreement or be considered an Ineligible Issuer.
Appears in 1 contract
Sources: Underwriting Agreement (Oasis Midstream Partners LP)
Representations and Warranties of the Partnership Parties. The Partnership Parties representParties, jointly and severally, hereby represent and warrant to each Underwriter on the date hereof, and agree with shall be deemed to represent and warrant to each Manager Underwriter on the Closing Date and any Additional Closing Date, as the case may be, that:
(a) The Partnership meets Registration Statement has been filed with, and been declared effective by, the requirements for use of Form S-3 under Commission. No stop order suspending the Securities Act and has prepared and filed with the Securities and Exchange Commission (the “Commission”) a registration statement on Form S-3 (File No. 333-199312), including a form of prospectus, in conformity with the requirements effectiveness of the Securities Act of 1933Registration Statement or any post-effective amendment thereto has been issued and no proceeding for that purpose has been initiated or, as amended (to the “Act”), and the rules and regulations thereunder (the “Rules and Regulations”) knowledge of the Commission for registration under Partnership Parties, threatened by the Act of the offering and sale of the Units, and such registration statement has become effectiveCommission. The Registration Statement (as defined below) contains certain information concerning the offering and sale of the Common Units, including the Units, and contains additional information concerning the Partnership and its business; the Commission has not issued an No order preventing or suspending the use of the Basic any Preliminary Prospectus (as defined below), the or any Issuer Free Writing Prospectus Supplement (as defined below) or the Prospectus (as defined below), or the effectiveness of the Registration Statement, has been issued and no proceeding for that purpose or pursuant to Section 8A of the Act has been instituted initiated or, to the Partnership’s knowledgeknowledge of the Partnership Parties, threatened by the Commission. Except where the context otherwise requires, “Registration Statement,” as used herein, means the registration statement, as amended .
(b) The Partnership was not at the time of such registration statement’s effectiveness for purposes initial filing of Section 11 the Registration Statement and at the earliest time thereafter that the Partnership or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) of the Act) of the Units, is not on the date hereof and will not be on the Closing Date or any Additional Closing Date an “ineligible issuer” (as such section applies defined in Rule 405 under the Act).
(c) The Registration Statement conformed in all material respects at the time it initially became effective and the Time of Sale and will conform in all material respects on each of the Closing Date and any Additional Closing Date, if applicable, and any amendment to the ManagersRegistration Statement filed after the date hereof will conform in all material respects when filed, as well as any new registration statement or post-effective amendment as may have been filed pursuant to Sections 4(g) the applicable requirements of this Agreementthe Act and the Rules and Regulations. The most recent Preliminary Prospectus conformed, including (1) in all financial statements material respects, and documents filed as a part thereof or incorporated or deemed the Prospectus will conform, in all material respects, to be incorporated by reference therein, (2) any information contained or incorporated by reference in a prospectus the applicable requirements of the Act and the Rules and Regulations when filed with the Commission pursuant to Rule 424(b) under the Act, to Rules and Regulations and on the extent such information is deemed, pursuant to Rule 430B or Rule 430C under the Act, to be part of the registration statement at the time of such registration statement’s effectiveness for purposes of Section 11 of the Act, as such section applies to the Managers, Closing Date and (3) any registration statement filed to register the offer and sale of Units pursuant to Rule 462(b) under the Act. Except where the context otherwise requires, “Basic Prospectus,” as used herein, means the prospectus filed as part of the Registration Statement, together with any amendments or supplements thereto as of the date of this Agreement. Except where the context otherwise requires, “Prospectus Supplement,” as used herein, means the final prospectus supplement, relating to the Units, filed by the Partnership with the Commission pursuant to Rule 424(b) under the Act on or before the second business day after the date of this Agreement (or such earlier time as may be required under the Act), in the form furnished by the Partnership to the Managers in connection with the offering of the Units. Except where the context otherwise requires, “Prospectus,” as used herein, means the Prospectus Supplement together with the Basic Prospectus attached to or used with the Prospectus Supplement. Notwithstanding the foregoingAdditional Closing Date, if any revised basic prospectus, prospectus supplement or prospectus shall be provided to the Managers by the Partnership for use in connection with the offering and sale of the Units which differs from the Basic Prospectus, Prospectus Supplement or Prospectus, as the case may be (whether or not such revised basic prospectus, prospectus supplement or prospectus is required to be filed by the Partnership pursuant to Rule 424(b) of the Act), the terms “Basic Prospectus,” “Prospectus Supplement” and “Prospectus” shall refer to such revised basic prospectus, prospectus supplement or prospectus, as the case may be, from and after the time it is first provided to the Managers for such use. Any reference herein to the registration statement, the Registration Statement, the Basic Prospectus, the Prospectus Supplement or the Prospectus shall be deemed to refer to and include the documents, if any, incorporated by reference, or deemed to be incorporated by reference, therein (the “Incorporated Documents”), including, unless the context otherwise requires, the documents, if any, filed as exhibits to such Incorporated Documents. Any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, the Basic Prospectus, the Prospectus Supplement or the Prospectus shall be deemed to refer to and include the filing of any document under the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (collectively, the “Exchange Act”) on or after the initial effective date of the Registration Statement, or the date of the Basic Prospectus, the Prospectus Supplement or the Prospectus, as the case may be, and deemed to be incorporated therein by referenceapplicable.
(bd) The Registration Statement complied when it became effective, complies as of the date hereof and, as amended or supplemented, at each deemed effective date with respect to any Manager pursuant to Rule 430(B)(f)(2) of the Actdid not, as of the time of each sale of Units pursuant to this Agreement (each, a “Time of Sale”), at each Settlement Date (as defined in Section 3(a)(vi) hereof), and at all times during which a prospectus is required by the Act to be delivered (whether physically, deemed to be delivered pursuant to Rule 153 under the Act or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Units, will comply, in all material respects, with the requirements of the Act, and the Registration Statement did not and will not, at or during such times, 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; the conditions provided that no representation or warranty is made as to the use of Form S-3 information contained in connection with the offering and sale of the Units as contemplated hereby have been satisfied; or omitted from the Registration Statement meetsin reliance upon and in conformity with written information furnished to the Partnership Parties through the Representative by or on behalf of any Underwriter specifically for inclusion therein.
(e) The Prospectus will not, and the offering and sale as of the Units as contemplated hereby comply withits date, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5)); the Basic Prospectus complied or will comply, at the time date it was or will be filed with the Commission, complies as of or on the date hereof (if filed with the Commission on or prior to the date hereof) and, as of each Time of Sale, at each Settlement Closing Date and at all times during which a prospectus is required by the Act to be delivered (whether physically, deemed to be delivered pursuant to Rule 153 under the Act or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of UnitsAdditional Closing Date, will comply, in all material respects, with the requirements of the Act; at no time during the period that begins on the earlier of the date of the Basic Prospectus and the date the Basic Prospectus was filed with the Commission and ends at the later of each Settlement Date and the end of the period during which a prospectus is required by the Act to be delivered (whether physically, deemed to be delivered pursuant to Rule 153 under the Act or through compliance with Rule 172 under the Act or any similar rule) did or will the Basic Prospectus, as then amended or supplementedif applicable, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that no representation or warranty is made as to information included in or omitted from the Prospectus will complyin reliance upon and in conformity with written information furnished to the Partnership Parties through the Representative by or on behalf of any Underwriter specifically for inclusion therein.
(f) The Time of Sale Information did not, as of the date that it is filed with the Commission, the date of the Prospectus Supplement, each Time of Sale, each Settlement Date, and at all times during which a prospectus is required by the Act to be delivered (whether physically, deemed to be delivered pursuant to Rule 153 under the Act or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Units, in all material respects, with the requirements of the Act (including, without limitation, Section 10(a) of the Act); at no time during the period that begins on the date of the Prospectus Supplement and ends at the later of each Settlement Date and the end of the period during which a prospectus is required by the Act to be delivered (whether physically, deemed to be delivered pursuant to Rule 153 under the Act or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Units did or will the Prospectus, as then amended or supplemented, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, provided that the Partnership makes no representation or warranty with respect is made as to any statement contained information included in or omitted from the Registration Statement, the Basic Prospectus or the Prospectus Time of Sale Information in reliance upon and in conformity with written information concerning furnished to the Managers and furnished in writing Partnership Parties through the Representative by or on behalf of any Underwriter specifically for inclusion therein.
(g) No Issuer Free Writing Prospectus (including, without limitation, any road show that is a free writing prospectus under Rule 433 of the Managers expressly for use in Rules and Regulations), when considered together with the Registration Statement, the Basic Prospectus or the Prospectus, as the case may be; each Incorporated Document, Time of Sale Information at the time such document was filed with the Commission or at the time such document became effectiveTime of Sale, as applicable, complied, in all material respects, with the requirements of the Exchange Act and did not include included an untrue statement of a material fact or omit omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. For all purposes ; provided that no representation or warranty is made as to information included in or omitted from the Time of this Agreement (including, without limitation, the provisions of this paragraph Sale Information in reliance upon and of Section 7 of this Agreement), in conformity with written information furnished to the Partnership and each Manager, severally and not jointly, agree that Parties through the only information furnished or to be furnished Representative by or on behalf of such Manager expressly any Underwriter specifically for use in the Registration Statement, the Basic Prospectus, the Prospectus Supplement or the Prospectus or any amendment or supplement to any of the foregoing is the statement that such Manager will not engage in any transactions that stabilize the Common Units appearing in the last sentence of the first paragraph under the caption “Plan of Distribution” in the Prospectus Supplement dated May 25, 2016inclusion therein.
(ch) For purposes of each offering Each Issuer Free Writing Prospectus conformed or will conform in all material respects to the requirements of the Units pursuant to transactions under this Agreement that are not firm commitment underwritingsAct and the Rules and Regulations on the date of first use, the Partnership will be an “ineligible issuer” (as defined in Rule 405 of the Securities Act) as of each relevant eligibility determination date for purposes of Rules 164 and 433 under the Securities Act.
(d) Prior to the execution of this Agreement, the Partnership has not, directly or indirectly, offered or sold complied with all prospectus delivery and any filing requirements applicable to such Issuer Free Writing Prospectus pursuant to the Rules and Regulations. The Partnership has not made any offer relating to the Units by means of any “prospectus” (within that would constitute an Issuer Free Writing Prospectus without the meaning prior written consent of the Act) or used any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Units, and from and after the execution of this Agreement, the Representative. The Partnership will not, directly or indirectly, offer or sell any Units by means of any “prospectus” (within the meaning of the Act) or use any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Units, other than the Prospectus, as amended or supplemented from time to time has retained in accordance with the provisions of this Agreement; the Partnership has not, directly or indirectly, prepared, used or referred to any Rules and Regulations all Issuer Free Writing Prospectus in connection with the sale of any Units Prospectuses that were not required to be filed pursuant to this Agreement, the Rules and Regulations. The Partnership has taken all actions necessary so that any “road show” (as defined in Rule 433 of the Rules and Regulations) in connection with the offering of the Units will not be required to be filed pursuant to the Rules and Regulations.
(ei) From the time of filing of the Registration Statement through the date hereof, the Partnership has been and is an Emerging Growth Company.
(j) The Partnership (i) has not alone engaged in any Testing-the-Waters Communication, (ii) has not authorized anyone to engage in such communications, other than the Representative, and (iii) has not distributed or approved for distribution any Testing-the-Waters Communication that is a “written communication” within the meaning of Rule 405 under the Act, other than those listed on Schedule VI hereto.
(k) Each of the Partnership Parties has been Entities is duly formed organized and is validly existing as a limited partnership, limited liability company or corporation, as applicable, limited partnership in good standing under the laws of its the jurisdiction of its formation or organization with full requisite limited liability company or limited partnership power and authority to enter into own, lease and perform operate its respective obligations under this Agreement properties and consummate to conduct its business as presently conducted and as described in the transactions contemplated hereby. Each Registration Statement, the Time of Sale Information and the Partnership Entities Prospectus (and any amendment or supplement thereto) and is duly registered and qualified to do conduct its business as a foreign limited partnership, limited liability company or corporation, as applicable, and is in good standing under the laws of in each jurisdiction which requires such qualificationlisted opposite its name on Schedule V hereto, except where the failure to be so qualified would register or qualify has not had or will not have a material adverse effect on the condition (financial or otherwiseother), prospectsbusiness, earnings, business or properties, taken as a wholenet worth, whether results of operations or not arising from transactions in the ordinary course of business, prospects of the Partnership Entities, taken as a whole (a “Material Adverse Effect”).
(l) The General Partner has, or subject and at the Closing Date and any Additional Closing Date, will have, requisite limited partners liability company power and authority to serve as general partner of the Partnership to any in all material liability or disabilityrespects as disclosed in the Registration Statement, the Time of Sale Information and the Prospectus.
(fm) Memorial Resource Development Corp.The General Partner is, and at the Closing Date and any Additional Closing Date, if applicable, will be, the sole general partner of the Partnership, with a Delaware corporation non-economic general partner interest in the Partnership (the “MRDGP Interest”), owns all of ; the issued and outstanding membership interests of the General Partner; such membership interests are GP Interest has been duly authorized and validly issued in accordance with the Third Amended and Restated Limited Liability Company Agreement of Limited Partnership of the Partnership (as it may be amended from time to time, the “Partnership Agreement”); and the General Partner owns such general partner interest free and clear of all Liens, except for such Liens as permitted in the Partnership Agreement or as described in the Registration Statement, the Time of Sale Information and the Prospectus, if any.
(n) The Partnership is, and at the “GP LLC Agreement”)Closing Date, will be, the owner of approximately 47.9% of the common units of OpCo and all of the issued and outstanding Series A Cumulative Convertible Preferred Units of OpCo. The Partnership is, and at the Closing Date and any Additional Closing Date, if applicable, will be, the managing member of OpCo. Such equity interests have been duly authorized and validly issued in accordance with the Organizational Agreement of OpCo and are fully paid (to the extent required by the GP LLC under such Organizational Agreement) and nonassessable (except as such nonassessability may be affected by matters described in Sections 18-607 and 18-804 of the Delaware Limited Liability Company Act (the “Delaware LLC Act”)); and MRD the Partnership owns such membership equity interests free and clear of all liens, encumbrances, security interests, equities, charges or other claims (collectively, “Liens”), except for restrictions on transferability contained in other than Liens incurred pursuant to the GP LLC Agreement or in that certain Partnership’s Credit Agreement dated as of June 18January 11, 2014, by and among MRD, as borrower, the lenders party thereto, Bank of America, N.A., as administrative agent and collateral agent, and the other parties party thereto 2017 (as amended, restated or otherwise modified and supplemented from time to time, the “MRD Credit Agreement”), or that certain Indenture, dated July 10, 2014, by and among MRD, the subsidiary guarantors named therein and U.S. Bank National Association, as trustee (the “MRD Indenture”) or as described in the Registration Statement and the Prospectus.
(g) The General Partner is the sole general partner of the Partnership with a 0.1% general partner interest in the Partnership; such general partner interest has been duly authorized and validly issued in accordance with the First Amended and Restated Agreement of Limited Partnership of the Partnership, as in effect on the date hereof (the “Partnership Agreement”); and the General Partner owns such general partner interest free and clear of all Liens, except for restrictions on transferability contained in the Partnership Agreement or in the MRD Indenture, the MRD Credit Agreement, that certain Indenture, dated April 17, 2013, by and among the Partnership, Memorial Production Finance Corporation, the subsidiary guarantors named therein and U.S. Bank National Association, as trustee (as amended or supplemented, the “2021 Indenture”), that certain Indenture, dated July 17, 2014, by and among the Partnership, Memorial Production Finance Corporation, the subsidiary guarantors named therein and U.S. Bank National Association, as trustee (as amended or supplemented, the “2022 Indenture” and, together with the 2021 Indenture, the “Partnership Indentures”), or that certain Credit Agreement dated December 14, 2011, among the Operating Company, as borrower, the guarantors party thereto, ▇▇▇▇▇ Fargo Bank, National Association, as administrative agent for the lenders party thereto, and the other agents and lenders party thereto (as amended, modified and supplemented from time to time, the “Credit Agreement”) or as described set forth in the Registration Statement Statement, the Time of Sale Information and the Prospectus.
(h) The General Partner and Natural Gas Partners VIII. As used herein, L.P.“Organizational Agreement” means the limited liability company agreement, a Delaware limited partnership (“NGP VIII”)agreement or partnership agreement, Natural Gas Partners IXas applicable, L.P., a Delaware limited partnership (“NGP IX”) and NGP IX Offshore Holdings, L.P., a Delaware limited partnership (“NGP Holdings” and together with NGP VIII and NGP IX, the “Funds”) collectively own 100% of the Incentive Distribution Rights (as such term is defined in the Partnership Agreement, the “IDRs”) in the Partnership, in each case free and clear of all Liens, except for restrictions on transferability contained in the Partnership Agreement or an entity.
Appears in 1 contract
Sources: Underwriting Agreement (Kimbell Royalty Partners, LP)
Representations and Warranties of the Partnership Parties. The Partnership Parties representParties, jointly and severally, hereby represent and warrant to each Underwriter on the date hereof, and agree with shall be deemed to represent and warrant to each Manager Underwriter on the Closing Date and any Additional Closing Date, as the case may be, that:
(a) The Partnership meets the requirements for use of Form S-3 under the Securities Act and has prepared and filed with the Securities and Exchange Commission (the “Commission”) a registration statement on Form S-3 (File NoRegistration Statement. 333-199312)Such Registration Statement, including a form any amendments thereto filed prior to the Time of prospectusSale, in conformity with became effective upon filing. No stop order suspending the requirements effectiveness of the Securities Act of 1933Registration Statement or any post-effective amendment thereto has been issued and no proceeding for that purpose has been initiated or, as amended (to the “Act”), and the rules and regulations thereunder (the “Rules and Regulations”) knowledge of the Commission for registration under Partnership Parties, threatened by the Act of the offering and sale of the Units, and such registration statement has become effectiveCommission. The Registration Statement (as defined below) contains certain information concerning the offering and sale of the Common Units, including the Units, and contains additional information concerning the Partnership and its business; the Commission has not issued an No order preventing or suspending the use of the Basic any Preliminary Prospectus (as defined below), the or any Issuer Free Writing Prospectus Supplement (as defined below) or the Prospectus (as defined below), or the effectiveness of the Registration Statement, has been issued and no proceeding for that purpose or pursuant to Section 8A of the Act has been instituted initiated or, to the Partnership’s knowledgeknowledge of the Partnership Parties, threatened by the Commission. Except where .
(i) At the context otherwise requires, “time of filing the Registration Statement,” as used herein, means the registration statement, as amended (ii) at the time of such registration statement’s effectiveness the most recent amendment thereto for the purposes of complying with Section 11 10(a)(3) of the Act, as Act (whether such section applies to the Managers, as well as any new registration statement or amendment was by post-effective amendment as may have been amendment, incorporated report filed pursuant to Sections 4(g13 or 15(d) of this Agreement, including (1) all financial statements and documents filed as a part thereof the Exchange Act or incorporated or deemed to be incorporated by reference thereinform of prospectus), (2iii) at the time the Partnership or any information contained person acting on its behalf (within the meaning, for this clause only, of Rule 163(c)) made any offer relating to the Units in reliance on the exemption in Rule 163, and (iv) at the Time of Sale (with such date being used as the determination date for purposes of this clause (iv)), the Partnership was or incorporated is (as the case may be) a “well-known seasoned issuer” as defined in Rule 405. The Partnership agrees to pay the fees required by reference the Commission relating to the Units within the time required by Rule 456(b)(1) without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r).
(c) The Partnership was not at the time of initial filing of the Registration Statement and, at the earliest time thereafter that the Partnership or another offering participant made a prospectus “bona fide offer” (within the meaning of Rule 164(h)(2) of the Act) of the Units, is not on the date hereof and will not be on the Closing Date or any Additional Closing Date an “ineligible issuer” (as defined in Rule 405 under the Act).
(d) The Registration Statement conformed in all material respects at the time it initially became effective and the Time of Sale and will conform in all material respects on each of the Closing Date and any Additional Closing Date, if applicable, and any amendment to the Registration Statement filed after the date hereof will conform in all material respects when filed, to the applicable requirements of the Act and the Rules and Regulations. The most recent Preliminary Prospectus conformed, in all material respects, and the Prospectus will conform, in all material respects, to the applicable requirements of the Act and the Rules and Regulations when filed with the Commission pursuant to Rule 424(b) under the Act, to Rules and Regulations and on the extent such information is deemed, pursuant to Rule 430B or Rule 430C under the Act, to be part of the registration statement at the time of such registration statement’s effectiveness for purposes of Section 11 of the Act, as such section applies to the Managers, Closing Date and (3) any registration statement filed to register the offer and sale of Units pursuant to Rule 462(b) under the Act. Except where the context otherwise requires, “Basic Prospectus,” as used herein, means the prospectus filed as part of the Registration Statement, together with any amendments or supplements thereto as of the date of this Agreement. Except where the context otherwise requires, “Prospectus Supplement,” as used herein, means the final prospectus supplement, relating to the Units, filed by the Partnership with the Commission pursuant to Rule 424(b) under the Act on or before the second business day after the date of this Agreement (or such earlier time as may be required under the Act), in the form furnished by the Partnership to the Managers in connection with the offering of the Units. Except where the context otherwise requires, “Prospectus,” as used herein, means the Prospectus Supplement together with the Basic Prospectus attached to or used with the Prospectus Supplement. Notwithstanding the foregoingAdditional Closing Date, if any revised basic prospectus, prospectus supplement or prospectus shall be provided to the Managers by the Partnership for use in connection with the offering and sale of the Units which differs from the Basic Prospectus, Prospectus Supplement or Prospectus, as the case may be (whether or not such revised basic prospectus, prospectus supplement or prospectus is required to be filed by the Partnership pursuant to Rule 424(b) of the Act), the terms “Basic Prospectus,” “Prospectus Supplement” and “Prospectus” shall refer to such revised basic prospectus, prospectus supplement or prospectus, as the case may be, from and after the time it is first provided to the Managers for such use. Any reference herein to the registration statement, the Registration Statement, the Basic Prospectus, the Prospectus Supplement or the Prospectus shall be deemed to refer to and include the documents, if any, incorporated by reference, or deemed to be incorporated by reference, therein (the “Incorporated Documents”), including, unless the context otherwise requires, the documents, if any, filed as exhibits to such Incorporated Documents. Any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, the Basic Prospectus, the Prospectus Supplement or the Prospectus shall be deemed to refer to and include the filing of any document under the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (collectively, the “Exchange Act”) on or after the initial effective date of the Registration Statement, or the date of the Basic Prospectus, the Prospectus Supplement or the Prospectus, as the case may be, and deemed to be incorporated therein by referenceapplicable.
(be) The Registration Statement complied when it became effective, complies as of the date hereof and, as amended or supplemented, at each deemed effective date with respect to any Manager pursuant to Rule 430(B)(f)(2) of the Actdid not, as of the time of each sale of Units pursuant to this Agreement (each, a “Time of Sale”), at each Settlement Date (as defined in Section 3(a)(vi) hereof), and at all times during which a prospectus is required by the Act to be delivered (whether physically, deemed to be delivered pursuant to Rule 153 under the Act or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Units, will comply, in all material respects, with the requirements of the Act, and the Registration Statement did not and will not, at or during such times, 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; the conditions provided that no representation or warranty is made as to the use of Form S-3 information contained in connection with the offering and sale of the Units as contemplated hereby have been satisfied; or omitted from the Registration Statement meetsin reliance upon and in conformity with written information furnished to the Partnership Parties through the Representative by or on behalf of any Underwriter specifically for inclusion therein.
(f) The Prospectus will not, and the offering and sale as of the Units as contemplated hereby comply withits date, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5)); the Basic Prospectus complied or will comply, at the time date it was or will be filed with the Commission, complies as of or on the date hereof (if filed with the Commission on or prior to the date hereof) and, as of each Time of Sale, at each Settlement Closing Date and at all times during which a prospectus is required by the Act to be delivered (whether physically, deemed to be delivered pursuant to Rule 153 under the Act or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of UnitsAdditional Closing Date, will comply, in all material respects, with the requirements of the Act; at no time during the period that begins on the earlier of the date of the Basic Prospectus and the date the Basic Prospectus was filed with the Commission and ends at the later of each Settlement Date and the end of the period during which a prospectus is required by the Act to be delivered (whether physically, deemed to be delivered pursuant to Rule 153 under the Act or through compliance with Rule 172 under the Act or any similar rule) did or will the Basic Prospectus, as then amended or supplementedif applicable, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that no representation or warranty is made as to information included in or omitted from the Prospectus will complyin reliance upon and in conformity with written information furnished to the Partnership Parties through the Representative by or on behalf of any Underwriter specifically for inclusion therein.
(g) The Time of Sale Information did not, as of the date that it is filed with the Commission, the date of the Prospectus Supplement, each Time of Sale, each Settlement Date, and at all times during which a prospectus is required by the Act to be delivered (whether physically, deemed to be delivered pursuant to Rule 153 under the Act or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Units, in all material respects, with the requirements of the Act (including, without limitation, Section 10(a) of the Act); at no time during the period that begins on the date of the Prospectus Supplement and ends at the later of each Settlement Date and the end of the period during which a prospectus is required by the Act to be delivered (whether physically, deemed to be delivered pursuant to Rule 153 under the Act or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Units did or will the Prospectus, as then amended or supplemented, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, provided that the Partnership makes no representation or warranty with respect is made as to any statement contained information included in or omitted from the Registration Statement, the Basic Prospectus or the Prospectus Time of Sale Information in reliance upon and in conformity with written information concerning furnished to the Managers and furnished in writing Partnership Parties through the Representative by or on behalf of any Underwriter specifically for inclusion therein.
(h) No Issuer Free Writing Prospectus (including, without limitation, any road show that is a free writing prospectus under Rule 433 of the Managers expressly for use in Rules and Regulations), when considered together with the Registration Statement, the Basic Prospectus or the Prospectus, as the case may be; each Incorporated Document, Time of Sale Information at the time such document was filed with the Commission or at the time such document became effectiveTime of Sale, as applicable, complied, in all material respects, with the requirements of the Exchange Act and did not include included an untrue statement of a material fact or omit omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. For all purposes ; provided that no representation or warranty is made as to information included in or omitted from the Time of this Agreement (including, without limitation, the provisions of this paragraph Sale Information in reliance upon and of Section 7 of this Agreement), in conformity with written information furnished to the Partnership and each Manager, severally and not jointly, agree that Parties through the only information furnished or to be furnished Representative by or on behalf of such Manager expressly any Underwriter specifically for use in the Registration Statement, the Basic Prospectus, the Prospectus Supplement or the Prospectus or any amendment or supplement to any of the foregoing is the statement that such Manager will not engage in any transactions that stabilize the Common Units appearing in the last sentence of the first paragraph under the caption “Plan of Distribution” in the Prospectus Supplement dated May 25, 2016inclusion therein.
(ci) For purposes of each offering Each Issuer Free Writing Prospectus conformed or will conform in all material respects to the requirements of the Units pursuant to transactions under this Agreement that are not firm commitment underwritingsAct and the Rules and Regulations on the date of first use, the Partnership will be an “ineligible issuer” (as defined in Rule 405 of the Securities Act) as of each relevant eligibility determination date for purposes of Rules 164 and 433 under the Securities Act.
(d) Prior to the execution of this Agreement, the Partnership has not, directly or indirectly, offered or sold complied with all prospectus delivery and any filing requirements applicable to such Issuer Free Writing Prospectus pursuant to the Rules and Regulations. The Partnership has not made any offer relating to the Units by means of any “prospectus” (within that would constitute an Issuer Free Writing Prospectus without the meaning prior written consent of the Act) or used any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Units, and from and after the execution of this Agreement, the Representative. The Partnership will not, directly or indirectly, offer or sell any Units by means of any “prospectus” (within the meaning of the Act) or use any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Units, other than the Prospectus, as amended or supplemented from time to time has retained in accordance with the provisions of this Agreement; the Partnership has not, directly or indirectly, prepared, used or referred to any Rules and Regulations all Issuer Free Writing Prospectus in connection with the sale of any Units Prospectuses that were not required to be filed pursuant to this Agreement, the Rules and Regulations. The Partnership has taken all actions necessary so that any “road show” (as defined in Rule 433 of the Rules and Regulations) in connection with the offering of the Units will not be required to be filed pursuant to the Rules and Regulations.
(ej) The Partnership (i) has not alone engaged in any Testing-the-Waters Communication, (ii) has not authorized anyone to engage in such communications, other than the Representative, and (iii) has not distributed or approved for distribution any Testing-the-Waters Communication that is a “written communication” within the meaning of Rule 405 under the Act, other than those listed on Schedule VI hereto.
(k) Each of the Partnership Parties has been Entities is duly formed organized and is validly existing as a limited partnership, limited liability company or corporation, as applicable, limited partnership in good standing under the laws of its the jurisdiction of its formation or organization with full requisite limited liability company or limited partnership power and authority to enter into own, lease and perform operate its respective obligations under this Agreement properties and consummate to conduct its business as presently conducted and as described in the transactions contemplated hereby. Each Registration Statement, the Time of Sale Information and the Partnership Entities Prospectus (and any amendment or supplement thereto) and is duly registered and qualified to do conduct its business as a foreign limited partnership, limited liability company or corporation, as applicable, and is in good standing under the laws of in each jurisdiction which requires such qualificationlisted opposite its name on Schedule V hereto, except where the failure to be so qualified would register or qualify has not had or will not have a material adverse effect on the condition (financial or otherwiseother), prospectsbusiness, earnings, business or properties, taken as a wholenet worth, whether results of operations or not arising from transactions in the ordinary course of business, prospects of the Partnership Entities, taken as a whole (a “Material Adverse Effect”).
(l) The General Partner has, or subject and at the Closing Date and any Additional Closing Date, will have, requisite limited partners liability company power and authority to serve as general partner of the Partnership to any in all material liability or disabilityrespects as disclosed in the Registration Statement, the Time of Sale Information and the Prospectus.
(fm) Memorial Resource Development Corp.The General Partner is, and at the Closing Date and any Additional Closing Date, if applicable, will be, the sole general partner of the Partnership, with a Delaware corporation non-economic general partner interest in the Partnership (the “MRDGP Interest”), owns all of ; the issued and outstanding membership interests of the General Partner; such membership interests are GP Interest has been duly authorized and validly issued in accordance with the Third Fourth Amended and Restated Limited Liability Company Agreement of Limited Partnership of the Partnership (as it may be amended from time to time, the “Partnership Agreement”); and the General Partner owns such general partner interest free and clear of all liens, encumbrances, security interests, equities, charges or claims (the “GP LLC AgreementLiens”), except for such Liens as permitted in the Partnership Agreement or as described in the Registration Statement, the Time of Sale Information and the Prospectus, if any.
(n) The Partnership is, and at the Closing Date, will be, the owner of approximately 75.9% of the common units of OpCo. The Partnership is, and at the Closing Date and any Additional Closing Date, if applicable, will be, the managing member of OpCo. Such equity interests have been duly authorized and validly issued in accordance with the Organizational Agreement of OpCo and are fully paid (to the extent required by the GP LLC under such Organizational Agreement) and nonassessable (except as such nonassessability may be affected by matters described in Sections 18-607 and 18-804 of the Delaware Limited Liability Company Act (the “Delaware LLC Act”)); and MRD the Partnership owns such membership equity interests free and clear of all liens, encumbrances, security interests, charges or other claims (collectively, “Liens”), except for restrictions on transferability contained in the GP LLC Agreement or in that certain Credit Agreement dated as of June 18, 2014, by and among MRD, as borrower, the lenders party thereto, Bank of America, N.A., as administrative agent and collateral agent, and the other parties party thereto (as amended, modified and supplemented from time to time, the “MRD Credit Agreement”), or that certain Indenture, dated July 10, 2014, by and among MRD, the subsidiary guarantors named therein and U.S. Bank National Association, as trustee (the “MRD Indenture”) or as described in the Registration Statement and the Prospectus.
(g) The General Partner is the sole general partner of the Partnership with a 0.1% general partner interest in the Partnership; such general partner interest has been duly authorized and validly issued in accordance with the First Amended and Restated Agreement of Limited Partnership of the Partnership, as in effect on the date hereof (the “Partnership Agreement”); and the General Partner owns such general partner interest free and clear of all Liens, except for restrictions on transferability contained in the Partnership Agreement or in the MRD Indenture, the MRD Credit Agreement, that certain Indenture, dated April 17, 2013, by and among other than Liens incurred pursuant to the Partnership, Memorial Production Finance Corporation, the subsidiary guarantors named therein ’s Amended and U.S. Bank National Association, as trustee (as amended or supplemented, the “2021 Indenture”), that certain Indenture, dated July 17, 2014, by and among the Partnership, Memorial Production Finance Corporation, the subsidiary guarantors named therein and U.S. Bank National Association, as trustee (as amended or supplemented, the “2022 Indenture” and, together with the 2021 Indenture, the “Partnership Indentures”), or that certain Restated Credit Agreement dated December 14as of June 13, 2011, among the Operating Company, as borrower, the guarantors party thereto, ▇▇▇▇▇ Fargo Bank, National Association, as administrative agent for the lenders party thereto, and the other agents and lenders party thereto 2023 (as amended, restated or otherwise modified and supplemented from time to time, the “Credit Agreement”) or as described set forth in the Registration Statement Statement, the Time of Sale Information and the Prospectus.
(h) The General Partner and Natural Gas Partners VIII. As used herein, L.P.“Organizational Agreement” means the limited liability company agreement, a Delaware limited partnership (“NGP VIII”)agreement or partnership agreement, Natural Gas Partners IXas applicable, L.P., a Delaware limited partnership (“NGP IX”) and NGP IX Offshore Holdings, L.P., a Delaware limited partnership (“NGP Holdings” and together with NGP VIII and NGP IX, the “Funds”) collectively own 100% of the Incentive Distribution Rights (as such term is defined in the Partnership Agreement, the “IDRs”) in the Partnership, in each case free and clear of all Liens, except for restrictions on transferability contained in the Partnership Agreement or an entity.
Appears in 1 contract
Sources: Underwriting Agreement (Kimbell Royalty Partners, LP)
Representations and Warranties of the Partnership Parties. The Each of the Partnership Parties representParties, warrant to jointly and agree with severally, represents and warrants to, and agrees with, each Manager that:Underwriter as set forth below in this Section 6.
(a) The Partnership meets the requirements for use of Form S-3 under the Securities Act and has prepared and filed with the Securities and Exchange Commission (the “Commission”) a registration statement on Form S-3 (File No. 333-199312)Registration Statement, including a form of prospectusthe Base Prospectus, in conformity with the requirements of the Securities Act of 1933, as amended (the “Act”), and the rules and regulations thereunder (the “Rules and Regulations”) of the Commission for registration under the Act of the offering and sale of the Units. The Registration Statement, and such registration statement including all amendments thereto filed prior to the Time of Sale, has become effective. The Partnership has filed with the Commission, as part of an amendment to the Registration Statement (as defined below) contains certain information concerning the offering and sale of the Common Unitsor pursuant to Rule 424(b), including one or more Preliminary Prospectuses relating to the Units, each of which has previously been furnished to you. The Partnership will file with the Commission a Prospectus relating to the Units in accordance with Rule 424(b). As filed, the Prospectus will comply in all material respects with the Act and contains the rules and regulations of the Commission thereunder and, except to the extent the Underwriter shall agree in writing to a modification, shall be in all substantive respects in the form furnished to you prior to the Time of Sale or, to the extent not completed at the Time of Sale, shall contain only such specific additional information concerning and other changes (beyond that contained in the Base Prospectus and any Preliminary Prospectus) as the Partnership has advised you, prior to the Time of Sale, will be included or made therein. The Registration Statement, at the Time of Sale, meets the requirements set forth in Rule 415(a)(1)(x).
(b) No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued and its business; no proceeding for that purpose has been initiated or, to the Commission has not issued an knowledge of any of the Partnership Parties, threatened by the Commission. No order preventing or suspending the use of the Basic any Preliminary Prospectus (as defined below), the or any Issuer Free Writing Prospectus Supplement (as defined below) or the Prospectus (as defined below), or the effectiveness of the Registration Statement, has been issued and no proceeding for that purpose or pursuant to Section 8A of the Act has been instituted initiated or, to the Partnership’s knowledgeknowledge of the Partnership Parties, threatened by the Commission. Except where .
(c) On each Effective Date, the context otherwise requires, “Registration Statement,” as used herein, means the registration statement, as amended at the time of such registration statement’s effectiveness for purposes of Section 11 of the Act, as such section applies to the Managers, as well as any new registration statement or post-effective amendment as may have been filed pursuant to Sections 4(g) of this Agreement, including (1) all financial statements and documents filed as a part thereof or incorporated or deemed to be incorporated by reference therein, (2) any information contained or incorporated by reference in a prospectus filed with the Commission pursuant to Rule 424(b) under the Act, to the extent such information is deemed, pursuant to Rule 430B or Rule 430C under the Act, to be part of the registration statement at the time of such registration statement’s effectiveness for purposes of Section 11 of the Act, as such section applies to the ManagersStatement did, and (3) any registration statement filed to register the offer and sale of Units pursuant to Rule 462(b) under the Act. Except where the context otherwise requires, “Basic Prospectus,” as used herein, means the prospectus filed as part of the Registration Statement, together with any amendments or supplements thereto as of the date of this Agreement. Except where the context otherwise requires, “Prospectus Supplement,” as used herein, means the final prospectus supplement, relating to the Units, filed by the Partnership with the Commission pursuant to Rule 424(b) under the Act on or before the second business day after the date of this Agreement (or such earlier time as may be required under the Act), in the form furnished by the Partnership to the Managers in connection with the offering of the Units. Except where the context otherwise requires, “Prospectus,” as used herein, means when the Prospectus Supplement together is first filed in accordance with the Basic Prospectus attached to or used with the Prospectus Supplement. Notwithstanding the foregoing, if any revised basic prospectus, prospectus supplement or prospectus shall be provided to the Managers by the Partnership for use in connection with the offering and sale of the Units which differs from the Basic Prospectus, Prospectus Supplement or Prospectus, as the case may be (whether or not such revised basic prospectus, prospectus supplement or prospectus is required to be filed by the Partnership pursuant to Rule 424(b) of the Act), Rules and Regulations and on the terms “Basic Prospectus,” “Prospectus Supplement” and “Prospectus” shall refer to such revised basic prospectus, prospectus supplement or prospectus, as the case may be, from and after the time it is first provided to the Managers for such use. Any reference herein to the registration statement, the Registration Statement, the Basic ProspectusClosing Date, the Prospectus Supplement or (and any supplement thereto) will comply in all material respects with the Prospectus shall be deemed to refer to and include the documents, if any, incorporated by reference, or deemed to be incorporated by reference, therein (the “Incorporated Documents”), including, unless the context otherwise requires, the documents, if any, filed as exhibits to such Incorporated Documents. Any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, the Basic Prospectus, the Prospectus Supplement or the Prospectus shall be deemed to refer to and include the filing of any document under the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (collectively, the “Exchange Act”) on or after the initial effective date applicable requirements of the Registration Statement, or Act on the date of Effective Date and at the Basic Prospectus, the Prospectus Supplement or the Prospectus, as the case may be, and deemed to be incorporated therein by reference.
(b) The Registration Statement complied when it became effective, complies as of the date hereof and, as amended or supplemented, at each deemed effective date with respect to any Manager pursuant to Rule 430(B)(f)(2) of the Act, as of the time of each sale of Units pursuant to this Agreement (each, a “Time of Sale”), at each Settlement Date (as defined in Section 3(a)(vi) hereof), and at all times during which a prospectus is required by the Act to be delivered (whether physically, deemed to be delivered pursuant to Rule 153 under the Act or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Units, will comply, in all material respects, with the requirements of the Act, and the Registration Statement did not and will not, at or during such times, contain an any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary in order to make the statements therein not misleading; the conditions to the use of Form S-3 in connection with the offering and sale of the Units as contemplated hereby have been satisfied; the Registration Statement meets, and the offering and sale of the Units as contemplated hereby comply with, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5)); the Basic Prospectus complied or will comply, at the time it was or will be filed with the Commission, complies as of the date hereof (if filed with the Commission on or prior to the date hereof) and, as of each Time of Sale, at each Settlement Date and at all times during which a prospectus is required by the Act to be delivered (whether physically, deemed to be delivered pursuant to Rule 153 under the Act or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Units, will comply, in all material respects, with the requirements of the Act; at no time during the period that begins on the earlier of the date of the Basic Prospectus and the date the Basic Prospectus was filed with the Commission and ends at the later of each Settlement Date and the end of the period during which a prospectus is required by the Act to be delivered (whether physically, deemed to be delivered pursuant to Rule 153 under the Act or through compliance with Rule 172 under the Act or any similar rule) did or will the Basic Prospectus, as then amended or supplemented, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; the Prospectus will comply, as of the date that it is filed with the Commission, the date of the Prospectus Supplement, each Time of Sale, each Settlement Date, and at all times during which a prospectus is required by the Act to be delivered (whether physically, deemed to be delivered pursuant to Rule 153 under the Act or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Units, in all material respects, with the requirements of the Act (including, without limitation, Section 10(a) of the Act); at no time during the period that begins on the date of the Prospectus Supplement and ends at the later of each Settlement Date and the end of the period during which a prospectus is required by the Act to be delivered (whether physically, deemed to be delivered any filing pursuant to Rule 153 under 424(b) of the Act or through compliance with Rule 172 under Rules and Regulations and on the Act or any similar rule) in connection Closing Date, the Prospectus (together with any sale of Units did or supplement thereto) will the Prospectus, as then amended or supplemented, not include an any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Partnership makes no representation representations or warranty with respect warranties as to any statement the information contained in or omitted from the Registration Statement, the Basic each Preliminary Prospectus or the Prospectus (or any supplement thereto) in reliance upon and in conformity with information concerning the Managers and furnished in writing to the Partnership by or on behalf of the Managers expressly Underwriter specifically for use inclusion in the Registration Statement, the Basic each Preliminary Prospectus or the ProspectusProspectus (or any supplement thereto), it being understood and agreed that the only such information furnished by the Underwriter consists of the information described as such in Section 9(b) hereof.
(d) As of the case may be; Time of Sale and the Closing Date, (i) the Disclosure Package, and (ii) each Incorporated Documentelectronic road show, at the time such document was filed if any, when taken together as a whole with the Commission or at the time such document became effectiveDisclosure Package, as applicable, complied, in all material respects, with the requirements of the Exchange Act and did not include an and will not contain any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. For all purposes of this Agreement (including; provided, without limitationhowever, the provisions of this paragraph and of Section 7 of this Agreement), that the Partnership makes no representations or warranties as to statements in or omissions from the Disclosure Package based upon and each Managerin conformity with written information furnished to the Partnership by or on behalf of the Underwriter specifically for use therein, severally it being understood and not jointly, agree agreed that the only such information furnished or to be furnished by or on behalf of such Manager expressly for use in the Registration Statement, the Basic Prospectus, the Prospectus Supplement or the Prospectus or any amendment or supplement to any Underwriter consists of the foregoing is the statement that information described as such Manager will not engage in any transactions that stabilize the Common Units appearing in the last sentence of the first paragraph under the caption “Plan of Distribution” in the Prospectus Supplement dated May 25, 2016Section 9(b) hereof.
(ci) For purposes At the earliest time after filing of each the Registration Statement that the Partnership or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) of the Rules and Regulations) of the Units pursuant to transactions under and (ii) as of the Time of Sale (with such date being used as the determination date for purposes of this Agreement that are not firm commitment underwritingsclause (ii)), the Partnership will be was not and is not an “ineligible issuer” Ineligible Issuer (as defined in Rule 405 of the Securities Act) as Rules and Regulations), without taking account of each relevant eligibility any determination date for purposes by the Commission pursuant to Rule 405 of the Rules 164 and 433 under Regulations that it is not necessary that the Securities ActPartnership be considered an Ineligible Issuer.
(df) Prior to Each Issuer Free Writing Prospectus does not include any information that conflicts with the execution of this Agreementinformation contained in the Registration Statement, the Partnership has not, directly most recent Preliminary Prospectus or indirectly, offered or sold any Units by means of any “prospectus” (within the meaning of the Act) or used any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Units, and from and after the execution of this Agreement, the Partnership will not, directly or indirectly, offer or sell any Units by means of any “prospectus” (within the meaning of the Act) or use any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Units, other than the Prospectus, as amended including any document incorporated by reference therein that has not been superseded or supplemented from time to time in accordance with the provisions of this Agreementmodified; provided, however, that the Partnership has not, directly makes no representations or indirectly, prepared, used warranties as to statements in or referred to omissions from any Issuer Free Writing Prospectus based upon and in connection conformity with written information furnished to the sale of any Units pursuant to this Agreement, as defined in Rule 433 Partnership by or on behalf of the Rules Underwriter specifically for use therein, it being understood and Regulationsagreed that the only such information furnished by or on behalf of the Underwriter consists of the information described as such in Section 9(b) hereof.
(eg) Each of the Partnership Parties has been duly formed and is validly existing as a limited partnership, limited liability company or corporation, as applicable, in good standing under the laws of its jurisdiction of organization with full power and authority to enter into and perform its respective obligations under this Agreement and consummate the transactions contemplated hereby. Each of the Partnership Entities is duly qualified to do business as a foreign limited partnership, limited liability company or corporation, as applicable, and is in good standing under the laws of each jurisdiction which requires requires, or at the Closing Date, will require, such qualification, except where the failure to be so qualified would not have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties, taken as a whole, whether or not arising from transactions in the ordinary course of business, of on the Partnership Entities, taken as a whole (a “Material Adverse Effect”), or subject the limited partners of the Partnership to any material liability or disability.
(fh) Memorial Resource Development Corp.The Selling Unitholder owns, a Delaware corporation (“MRD”)and on the Closing Date will own, owns all of the issued and outstanding membership interests of the General Partner; such membership interests are duly authorized and validly issued in accordance with the Third Amended and Restated Limited Liability Company Agreement of the General Partner Class A Membership Interests (the “GP LLC Agreement”), and are fully paid (to the extent required by the GP LLC Agreement) and nonassessable (except as such nonassessability may be affected by Sections 18-607 and 18-804 of the Delaware Limited Liability Company Act (the “Delaware LLC Act”)); and MRD owns such membership interests free and clear of all liens, encumbrances, security interests, charges or other claims (collectively, “Liens”), except for restrictions on transferability contained defined in the GP LLC Agreement or in that certain Credit Agreement dated as of June 18, 2014, by and among MRD, as borrower, the lenders party thereto, Bank of America, N.A., as administrative agent and collateral agent, and the other parties party thereto (as amended, modified and supplemented from time to time, the “MRD Credit Agreement”defined below), or that certain Indenture, dated July 10, 2014, by and among MRD, the subsidiary guarantors named therein and U.S. Bank National Association, as trustee (the “MRD Indenture”) or as described in the Registration Statement and the Prospectus.
(g) The General Partner is the sole general partner of the Partnership with a 0.1% general partner interest in the Partnership; such general partner interest has been duly authorized and validly issued in accordance with the First Amended and Restated Agreement of Limited Partnership of the PartnershipGeneral Partner, as in effect on the date hereof (the “Partnership Agreement”); and the General Partner owns such general partner interest free and clear of all Liens, except for restrictions on transferability contained in the Partnership Agreement or in the MRD Indenture, the MRD Credit Agreement, that certain Indenture, dated April 17, 2013, by and among the Partnership, Memorial Production Finance Corporation, the subsidiary guarantors named therein and U.S. Bank National Association, as trustee (as amended or supplemented, the “2021 Indenture”), that certain Indenture, dated July 17, 2014, by and among the Partnership, Memorial Production Finance Corporation, the subsidiary guarantors named therein and U.S. Bank National Association, as trustee (as amended or supplemented, the “2022 Indenture” and, together with the 2021 Indenture, the “Partnership Indentures”), or that certain Credit Agreement dated December 14, 2011, among the Operating Company, as borrower, the guarantors party thereto, ▇▇▇▇▇ Fargo Bank, National Association, as administrative agent for the lenders party thereto, and the other agents and lenders party thereto (as amended, modified and supplemented from time to time, the “Credit Agreement”) or as described in the Registration Statement and the Prospectus.
(h) The General Partner and Natural Gas Partners VIII, L.P., a Delaware limited partnership (“NGP VIII”), Natural Gas Partners IX, L.P., a Delaware limited partnership (“NGP IX”) and NGP IX Offshore Holdings, L.P., a Delaware limited partnership (“NGP Holdings” and together with NGP VIII and NGP IX, the “Funds”), own, and on the Closing Date will own, in the aggregate all of the issued and outstanding non-voting Class IDR Membership Interests (as defined in the GP LLC Agreement) collectively of the General Partner; the Class A Membership Interests and Class IDR Membership Interests are duly authorized and validly issued in accordance with the limited liability company agreement of the General Partner (the “GP LLC Agreement”), and are fully paid (to the extent required by the GP LLC Agreement) and nonassessable (except as such nonassessability may be affected by Sections 18-607 and 18-804 of the Delaware Limited Liability Company Act (the “Delaware LLC Act”)); and the Selling Unitholder and the Funds own such membership interests free and clear of all liens, encumbrances, security interests, charges or other claims (collectively, “Liens”), except for restrictions on transferability contained in the GP LLC Agreement or as described in the Disclosure Package and the Prospectus; and on the Closing Date, no other interest in the General Partner will be outstanding.
(i) The General Partner is, and on the Closing Date will be, the sole general partner of the Partnership with a 0.1% general partner interest in the Partnership; such general partner interest has been, and on the Closing Date will be, duly authorized and validly issued in accordance with the First Amended and Restated Agreement of Limited Partnership of the Partnership, as in effect on the date hereof (the “Partnership Agreement”); and the General Partner owns, and will own on the Closing Date, such general partner interest free and clear of all Liens, except for restrictions on transferability contained in the Partnership Agreement or as described in the Disclosure Package and the Prospectus.
(j) After giving effect to this Agreement and the transactions contemplated hereby, the Selling Unitholder owns, and on the Closing Date will own, 5,360,912 Subordinated Units (the “Sponsor Units”), and the General Partner owns, and on the Closing Date will own, 100% of the Incentive Distribution Rights (as such term is defined in the Partnership Agreement, the “IDRs”) in the Partnership, in each case free and clear of all Liens, except for restrictions on transferability contained in the Partnership Agreement or as described in the Disclosure Package and the Prospectus; all of such Sponsor Units and IDRs and the limited partner interests represented thereby have been duly authorized and validly issued in accordance with the Partnership Agreement, and are fully paid (to the extent required under the Partnership Agreement) and nonassessable (except as such nonassessability may be affected by Sections 17-607 and 17-804 of the Delaware Limited Partnership Act (the “Delaware LP Act”)).
(k) The Partnership owns, and on the Closing Date will own, all of the issued and outstanding membership interests of the Operating Company free and clear of all Liens, except for restrictions on transferability contained in the limited liability company agreement of the Operating Company (as in effect on the date hereof, the “Operating Company LLC Agreement”) or in that certain Credit Agreement dated December 14, 2011, among the Operating Company, as borrower, the guarantors party thereto, ▇▇▇▇▇ Fargo Bank, National Association, as administrative agent for the lenders party thereto, and the other agents and lenders party thereto (as amended, the “Credit Agreement”); such membership interests have been duly authorized and validly issued in accordance with the Operating Company LLC Agreement and are fully paid (to the extent required by the Operating Company LLC Agreement) and nonassessable (except as such nonassessability may be affected by Sections 18-607 and 18-804 of the Delaware LLC Act).
(l) The Operating Company owns, and on the Closing Date will own, all of the issued and outstanding membership interests of each of the Subsidiaries (other than with respect to San ▇▇▇▇▇ Bay Pipeline Company, of which the Operating Company indirectly owns 51.75% of the issued and outstanding common stock) free and clear of all Liens, except for restrictions on transferability contained in the limited liability company agreements or other similar governing documents of each of the Subsidiaries and the Credit Agreement; such membership interests of Columbus Energy, LLC and to the knowledge of the Partnership Parties, such membership interests and common stock, as applicable, of Rise Energy Operating, LLC, Rise Energy Minerals, LLC, Rise Energy Beta, LLC, San ▇▇▇▇▇ Bay Pipeline Company, WHT Energy Partners LLC, WHT Carthage LLC, Memorial Midstream LLC, Memorial Energy Services LLC and Prospect Energy, LLC have been duly authorized and validly issued in accordance with the limited liability company agreements or other similar governing documents of the Subsidiaries, and are fully paid (to the extent required by each such limited liability company agreement) and nonassessable (except as such nonassessability may be affected by Sections 18-607 and 18-804 of the Delaware LLC Act).
(m) [Reserved].
(n) As of the date hereof, after giving effect to this Agreement and the transactions contemplated hereby, the Partnership has no limited partner interests issued and outstanding other than the following: 55,877,831 Common Units owned by the public unitholders and 5,360,912 Subordinated Units. Other than the Sponsor Units and the IDRs, the 55,877,831 Common Units will be the only limited partner interests of the Partnership issued and outstanding on the Closing Date.
(o) Other than its ownership of its 0.1% general partner interest in the Partnership and the IDRs, the General Partner will not, on the Closing Date own, directly or indirectly, any equity or long-term debt securities of any corporation, partnership, limited liability company, joint venture, association or other entity. As of the date hereof, other than (i) the Partnership’s ownership of a 100% membership interest in the Operating Company and 100% of the common stock of Memorial Production Finance Corporation, (ii) the Operating Company’s direct or indirect ownership of a 100% membership interest in each of the Subsidiaries (other than with respect to San ▇▇▇▇▇ Bay Pipeline Company, of which the Operating Company indirectly owns 51.75% of the issued and outstanding common stock), neither the Partnership nor the Operating Company owns, directly or indirectly, any equity or long-term debt securities of any corporation, partnership, limited liability company, joint venture, association or other entity. As of the Closing Date, other than (i) the Partnership’s ownership of a 100% membership interest in the Operating Company and 100% of the common stock of Memorial Production Finance Corporation, (ii) the Operating Company’s direct or indirect ownership of a 100% membership interest in each of the Subsidiaries (other than with respect to San ▇▇▇▇▇ Bay Pipeline Company, of which the Operating Company indirectly owns 51.75% of the issued and outstanding common stock), neither the Partnership nor the Operating Company will own, directly or indirectly, any equity or long-term debt securities of any corporation, partnership, limited liability company, joint venture, association or other entity.
(p) Except as described in or incorporated by reference into the Disclosure Package and the Prospectus, there are no (i) preemptive rights or other rights to subscribe for or to purchase, nor any restriction upon the voting or transfer of, any equity securities of the Partnership Entities or (ii) outstanding options or warrants to purchase any securities of the Partnership Entities. Neither the filing of the Registration Statement nor the offering or sale of the Units as contemplated by this Agreement gives rise to any rights for or relating to the registration of any Common Units or other securities of the Partnership.
(q) Each of the Partnership Parties has all requisite power and authority to execute and deliver this Agreement and perform its respective obligations hereunder.
(r) This Agreement has been duly authorized, executed and delivered by each of the Partnership Parties.
(s) Neither of (i) the execution, delivery and performance of this Agreement by the Partnership Entities party hereto or (ii) any other transactions contemplated by this Agreement, (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 (collectively, the “Organizational Documents”) of any of the Partnership Entities, (B) conflicts or will conflict with, or constitut
Appears in 1 contract
Sources: Underwriting Agreement (Memorial Production Partners LP)
Representations and Warranties of the Partnership Parties. The Partnership Parties representParties, jointly and severally, hereby represent and warrant to each Underwriter on the date hereof, and agree with shall be deemed to represent and warrant to each Manager Underwriter on the Closing Date and any Additional Closing Date, as the case may be, that:
(a) The Partnership meets Registration Statement has been filed with, and been declared effective by, the requirements for use of Form S-3 under Commission. No stop order suspending the Securities Act and has prepared and filed with the Securities and Exchange Commission (the “Commission”) a registration statement on Form S-3 (File No. 333-199312), including a form of prospectus, in conformity with the requirements effectiveness of the Securities Act of 1933Registration Statement or any post-effective amendment thereto has been issued and no proceeding for that purpose has been initiated or, as amended (to the “Act”), and the rules and regulations thereunder (the “Rules and Regulations”) knowledge of the Commission for registration under Partnership Parties, threatened by the Act of the offering and sale of the Units, and such registration statement has become effectiveCommission. The Registration Statement (as defined below) contains certain information concerning the offering and sale of the Common Units, including the Units, and contains additional information concerning the Partnership and its business; the Commission has not issued an No order preventing or suspending the use of the Basic any Preliminary Prospectus (as defined below), the or any Issuer Free Writing Prospectus Supplement (as defined below) or the Prospectus (as defined below), or the effectiveness of the Registration Statement, has been issued and no proceeding for that purpose or pursuant to Section 8A of the Act has been instituted initiated or, to the Partnership’s knowledgeknowledge of the Partnership Parties, threatened by the Commission. Except where the context otherwise requires, “Registration Statement,” as used herein, means the registration statement, as amended .
(b) The Partnership was not at the time of such registration statement’s effectiveness for purposes initial filing of Section 11 the Registration Statement and, at the earliest time thereafter that the Partnership or another offering participant made a “bona fide offer” (within the meaning of Rule 164(h)(2) of the Act) of the Units, is not on the date hereof and will not be on the Closing Date or any Additional Closing Date an “ineligible issuer” (as such section applies defined in Rule 405 under the Act).
(c) The Registration Statement conformed in all material respects at the time it initially became effective and the Time of Sale and will conform in all material respects on each of the Closing Date and any Additional Closing Date, if applicable, and any amendment to the ManagersRegistration Statement filed after the date hereof will conform in all material respects when filed, as well as any new registration statement or post-effective amendment as may have been filed pursuant to Sections 4(g) the applicable requirements of this Agreementthe Act and the Rules and Regulations. The most recent Preliminary Prospectus conformed, including (1) in all financial statements material respects, and documents filed as a part thereof or incorporated or deemed the Prospectus will conform, in all material respects, to be incorporated by reference therein, (2) any information contained or incorporated by reference in a prospectus the applicable requirements of the Act and the Rules and Regulations when filed with the Commission pursuant to Rule 424(b) under the Act, to Rules and Regulations and on the extent such information is deemed, pursuant to Rule 430B or Rule 430C under the Act, to be part of the registration statement at the time of such registration statement’s effectiveness for purposes of Section 11 of the Act, as such section applies to the Managers, Closing Date and (3) any registration statement filed to register the offer and sale of Units pursuant to Rule 462(b) under the Act. Except where the context otherwise requires, “Basic Prospectus,” as used herein, means the prospectus filed as part of the Registration Statement, together with any amendments or supplements thereto as of the date of this Agreement. Except where the context otherwise requires, “Prospectus Supplement,” as used herein, means the final prospectus supplement, relating to the Units, filed by the Partnership with the Commission pursuant to Rule 424(b) under the Act on or before the second business day after the date of this Agreement (or such earlier time as may be required under the Act), in the form furnished by the Partnership to the Managers in connection with the offering of the Units. Except where the context otherwise requires, “Prospectus,” as used herein, means the Prospectus Supplement together with the Basic Prospectus attached to or used with the Prospectus Supplement. Notwithstanding the foregoingAdditional Closing Date, if any revised basic prospectus, prospectus supplement or prospectus shall be provided to the Managers by the Partnership for use in connection with the offering and sale of the Units which differs from the Basic Prospectus, Prospectus Supplement or Prospectus, as the case may be (whether or not such revised basic prospectus, prospectus supplement or prospectus is required to be filed by the Partnership pursuant to Rule 424(b) of the Act), the terms “Basic Prospectus,” “Prospectus Supplement” and “Prospectus” shall refer to such revised basic prospectus, prospectus supplement or prospectus, as the case may be, from and after the time it is first provided to the Managers for such use. Any reference herein to the registration statement, the Registration Statement, the Basic Prospectus, the Prospectus Supplement or the Prospectus shall be deemed to refer to and include the documents, if any, incorporated by reference, or deemed to be incorporated by reference, therein (the “Incorporated Documents”), including, unless the context otherwise requires, the documents, if any, filed as exhibits to such Incorporated Documents. Any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, the Basic Prospectus, the Prospectus Supplement or the Prospectus shall be deemed to refer to and include the filing of any document under the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (collectively, the “Exchange Act”) on or after the initial effective date of the Registration Statement, or the date of the Basic Prospectus, the Prospectus Supplement or the Prospectus, as the case may be, and deemed to be incorporated therein by referenceapplicable.
(bd) The Registration Statement complied when it became effective, complies as of the date hereof and, as amended or supplemented, at each deemed effective date with respect to any Manager pursuant to Rule 430(B)(f)(2) of the Actdid not, as of the time of each sale of Units pursuant to this Agreement (each, a “Time of Sale”), at each Settlement Date (as defined in Section 3(a)(vi) hereof), and at all times during which a prospectus is required by the Act to be delivered (whether physically, deemed to be delivered pursuant to Rule 153 under the Act or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Units, will comply, in all material respects, with the requirements of the Act, and the Registration Statement did not and will not, at or during such times, 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; the conditions provided that no representation or warranty is made as to the use of Form S-3 information contained in connection with the offering and sale of the Units as contemplated hereby have been satisfied; or omitted from the Registration Statement meetsin reliance upon and in conformity with written information furnished to the Partnership Parties through the Representative by or on behalf of any Underwriter specifically for inclusion therein.
(e) The Prospectus will not, and the offering and sale as of the Units as contemplated hereby comply withits date, the requirements of Rule 415 under the Act (including, without limitation, Rule 415(a)(5)); the Basic Prospectus complied or will comply, at the time date it was or will be filed with the Commission, complies as of or on the date hereof (if filed with the Commission on or prior to the date hereof) and, as of each Time of Sale, at each Settlement Closing Date and at all times during which a prospectus is required by the Act to be delivered (whether physically, deemed to be delivered pursuant to Rule 153 under the Act or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of UnitsAdditional Closing Date, will comply, in all material respects, with the requirements of the Act; at no time during the period that begins on the earlier of the date of the Basic Prospectus and the date the Basic Prospectus was filed with the Commission and ends at the later of each Settlement Date and the end of the period during which a prospectus is required by the Act to be delivered (whether physically, deemed to be delivered pursuant to Rule 153 under the Act or through compliance with Rule 172 under the Act or any similar rule) did or will the Basic Prospectus, as then amended or supplementedif applicable, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that no representation or warranty is made as to information included in or omitted from the Prospectus will complyin reliance upon and in conformity with written information furnished to the Partnership Parties through the Representative by or on behalf of any Underwriter specifically for inclusion therein.
(f) The Time of Sale Information did not, as of the date that it is filed with the Commission, the date of the Prospectus Supplement, each Time of Sale, each Settlement Date, and at all times during which a prospectus is required by the Act to be delivered (whether physically, deemed to be delivered pursuant to Rule 153 under the Act or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Units, in all material respects, with the requirements of the Act (including, without limitation, Section 10(a) of the Act); at no time during the period that begins on the date of the Prospectus Supplement and ends at the later of each Settlement Date and the end of the period during which a prospectus is required by the Act to be delivered (whether physically, deemed to be delivered pursuant to Rule 153 under the Act or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Units did or will the Prospectus, as then amended or supplemented, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, provided that the Partnership makes no representation or warranty with respect is made as to any statement contained information included in or omitted from the Registration Statement, the Basic Prospectus or the Prospectus Time of Sale Information in reliance upon and in conformity with written information concerning furnished to the Managers and furnished in writing Partnership Parties through the Representative by or on behalf of any Underwriter specifically for inclusion therein.
(g) No Issuer Free Writing Prospectus (including, without limitation, any road show that is a free writing prospectus under Rule 433 of the Managers expressly for use in Rules and Regulations), when considered together with the Registration Statement, the Basic Prospectus or the Prospectus, as the case may be; each Incorporated Document, Time of Sale Information at the time such document was filed with the Commission or at the time such document became effectiveTime of Sale, as applicable, complied, in all material respects, with the requirements of the Exchange Act and did not include included an untrue statement of a material fact or omit omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. For all purposes ; provided that no representation or warranty is made as to information included in or omitted from the Time of this Agreement (including, without limitation, the provisions of this paragraph Sale Information in reliance upon and of Section 7 of this Agreement), in conformity with written information furnished to the Partnership and each Manager, severally and not jointly, agree that Parties through the only information furnished or to be furnished Representative by or on behalf of such Manager expressly any Underwriter specifically for use in the Registration Statement, the Basic Prospectus, the Prospectus Supplement or the Prospectus or any amendment or supplement to any of the foregoing is the statement that such Manager will not engage in any transactions that stabilize the Common Units appearing in the last sentence of the first paragraph under the caption “Plan of Distribution” in the Prospectus Supplement dated May 25, 2016inclusion therein.
(ch) For purposes of each offering Each Issuer Free Writing Prospectus conformed or will conform in all material respects to the requirements of the Units pursuant to transactions under this Agreement that are not firm commitment underwritingsAct and the Rules and Regulations on the date of first use, the Partnership will be an “ineligible issuer” (as defined in Rule 405 of the Securities Act) as of each relevant eligibility determination date for purposes of Rules 164 and 433 under the Securities Act.
(d) Prior to the execution of this Agreement, the Partnership has not, directly or indirectly, offered or sold complied with all prospectus delivery and any filing requirements applicable to such Issuer Free Writing Prospectus pursuant to the Rules and Regulations. The Partnership has not made any offer relating to the Units by means of any “prospectus” (within that would constitute an Issuer Free Writing Prospectus without the meaning prior written consent of the Act) or used any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Units, and from and after the execution of this Agreement, the Representative. The Partnership will not, directly or indirectly, offer or sell any Units by means of any “prospectus” (within the meaning of the Act) or use any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Units, other than the Prospectus, as amended or supplemented from time to time has retained in accordance with the provisions of this Agreement; the Partnership has not, directly or indirectly, prepared, used or referred to any Rules and Regulations all Issuer Free Writing Prospectus in connection with the sale of any Units Prospectuses that were not required to be filed pursuant to this Agreement, the Rules and Regulations. The Partnership has taken all actions necessary so that any “road show” (as defined in Rule 433 of the Rules and Regulations) in connection with the offering of the Units will not be required to be filed pursuant to the Rules and Regulations.
(ei) From the time of filing of the Registration Statement through the date hereof, the Partnership has been and is an Emerging Growth Company.
(j) The Partnership (i) has not alone engaged in any Testing-the-Waters Communication, (ii) has not authorized anyone to engage in such communications, other than the Representative, and (iii) has not distributed or approved for distribution any Testing-the-Waters Communication that is a “written communication” within the meaning of Rule 405 under the Act, other than those listed on Schedule VI hereto.
(k) Each of the Partnership Parties has been Entities is duly formed organized and is validly existing as a limited partnership, limited liability company or corporation, as applicable, limited partnership in good standing under the laws of its the jurisdiction of its formation or organization with full requisite limited liability company or limited partnership power and authority to enter into own, lease and perform operate its respective obligations under this Agreement properties and consummate to conduct its business as presently conducted and as described in the transactions contemplated hereby. Each Registration Statement, the Time of Sale Information and the Partnership Entities Prospectus (and any amendment or supplement thereto) and is duly registered and qualified to do conduct its business as a foreign limited partnership, limited liability company or corporation, as applicable, and is in good standing under the laws of in each jurisdiction which requires such qualificationlisted opposite its name on Schedule V hereto, except where the failure to be so qualified would register or qualify has not had or will not have a material adverse effect on the condition (financial or otherwiseother), prospectsbusiness, earnings, business or properties, taken as a wholenet worth, whether results of operations or not arising from transactions in the ordinary course of business, prospects of the Partnership Entities, taken as a whole (a “Material Adverse Effect”).
(l) The General Partner has, or subject and at the Closing Date and any Additional Closing Date, will have, requisite limited partners liability company power and authority to serve as general partner of the Partnership to any in all material liability or disabilityrespects as disclosed in the Registration Statement, the Time of Sale Information and the Prospectus.
(fm) Memorial Resource Development Corp.The General Partner is, and at the Closing Date and any Additional Closing Date, if applicable, will be, the sole general partner of the Partnership, with a Delaware corporation non-economic general partner interest in the Partnership (the “MRDGP Interest”), owns all of ; the issued and outstanding membership interests of the General Partner; such membership interests are GP Interest has been duly authorized and validly issued in accordance with the Third Fourth Amended and Restated Limited Liability Company Agreement of Limited Partnership of the Partnership (as it may be amended from time to time, the “Partnership Agreement”); and the General Partner owns such general partner interest free and clear of all Liens, except for such Liens as permitted in the Partnership Agreement or as described in the Registration Statement, the Time of Sale Information and the Prospectus, if any.
(n) The Partnership is, and at the “GP LLC Agreement”)Closing Date, will be, the owner of approximately 88.36% of the common units of OpCo. The Partnership is, and at the Closing Date and any Additional Closing Date, if applicable, will be, the managing member of OpCo. Such equity interests have been duly authorized and validly issued in accordance with the Organizational Agreement of OpCo and are fully paid (to the extent required by the GP LLC under such Organizational Agreement) and nonassessable (except as such nonassessability may be affected by matters described in Sections 18-607 and 18-804 of the Delaware Limited Liability Company Act (the “Delaware LLC Act”)); and MRD the Partnership owns such membership equity interests free and clear of all liens, encumbrances, security interests, equities, charges or other claims (collectively, “Liens”), except for restrictions on transferability contained in other than Liens incurred pursuant to the GP LLC Agreement or in that certain Partnership’s Credit Agreement dated as of June 18January 11, 2014, by and among MRD, as borrower, the lenders party thereto, Bank of America, N.A., as administrative agent and collateral agent, and the other parties party thereto 2017 (as amended, restated or otherwise modified and supplemented from time to time, the “MRD Credit Agreement”), or that certain Indenture, dated July 10, 2014, by and among MRD, the subsidiary guarantors named therein and U.S. Bank National Association, as trustee (the “MRD Indenture”) or as described in the Registration Statement and the Prospectus.
(g) The General Partner is the sole general partner of the Partnership with a 0.1% general partner interest in the Partnership; such general partner interest has been duly authorized and validly issued in accordance with the First Amended and Restated Agreement of Limited Partnership of the Partnership, as in effect on the date hereof (the “Partnership Agreement”); and the General Partner owns such general partner interest free and clear of all Liens, except for restrictions on transferability contained in the Partnership Agreement or in the MRD Indenture, the MRD Credit Agreement, that certain Indenture, dated April 17, 2013, by and among the Partnership, Memorial Production Finance Corporation, the subsidiary guarantors named therein and U.S. Bank National Association, as trustee (as amended or supplemented, the “2021 Indenture”), that certain Indenture, dated July 17, 2014, by and among the Partnership, Memorial Production Finance Corporation, the subsidiary guarantors named therein and U.S. Bank National Association, as trustee (as amended or supplemented, the “2022 Indenture” and, together with the 2021 Indenture, the “Partnership Indentures”), or that certain Credit Agreement dated December 14, 2011, among the Operating Company, as borrower, the guarantors party thereto, ▇▇▇▇▇ Fargo Bank, National Association, as administrative agent for the lenders party thereto, and the other agents and lenders party thereto (as amended, modified and supplemented from time to time, the “Credit Agreement”) or as described set forth in the Registration Statement Statement, the Time of Sale Information and the Prospectus.
(h) The General Partner and Natural Gas Partners VIII. As used herein, L.P.“Organizational Agreement” means the limited liability company agreement, a Delaware limited partnership (“NGP VIII”)agreement or partnership agreement, Natural Gas Partners IXas applicable, L.P., a Delaware limited partnership (“NGP IX”) and NGP IX Offshore Holdings, L.P., a Delaware limited partnership (“NGP Holdings” and together with NGP VIII and NGP IX, the “Funds”) collectively own 100% of the Incentive Distribution Rights (as such term is defined in the Partnership Agreement, the “IDRs”) in the Partnership, in each case free and clear of all Liens, except for restrictions on transferability contained in the Partnership Agreement or an entity.
Appears in 1 contract
Sources: Underwriting Agreement (Kimbell Royalty Partners, LP)