Conditions of Initial Purchasers’ Obligations. The respective obligations of the Initial Purchasers hereunder are subject to the accuracy, when made and on the Closing Date, of the representations and warranties of the Issuers and the Guarantors contained herein, to the performance by the Issuers and the Guarantors of their respective obligations hereunder, and to each of the following additional terms and conditions: (a) The Initial Purchasers shall not have discovered and disclosed to the Company on or prior to the Closing Date that the Pricing Disclosure Package or the Offering Memorandum or any amendment or supplement thereto contains an untrue statement of a fact that, in the opinion of Xxxx Xxxx Xxxxxxx Xxxxx & Xxxx LLP, is material or omits to state a fact that, in the opinion of such counsel, is material and is necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. (b) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Registration Rights Agreement, the Indenture, the Securities, the Exchange Securities, the Offering Memorandum and the Pricing Disclosure Package, and all other legal matters relating to this Agreement, the Registration Rights Agreement, the Indenture, the Securities, the Exchange Securities and the transactions contemplated hereby and thereby shall be reasonably satisfactory in all material respects to counsel for the Initial Purchasers, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters. (c) Xxxxx & Xxxxxxxxx LLP shall have furnished to the Representatives its written opinion, as counsel to the Issuers, addressed to the Initial Purchasers and dated the Closing Date, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit B. GableGotwals, shall have furnished to the Representatives its written opinion, as special Oklahoma counsel to the Issuers, addressed to the Initial Purchasers and dated the Closing Date, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit X. Xxxxxxxx Xxxxxx, General Counsel of the Company, shall have furnished to the Representatives her written opinion, addressed to the Initial Purchasers and dated the Closing Date, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit D. (d) The Representatives shall have received from Xxxx Xxxx Xxxxxxx Xxxxx & Xxxx LLP, counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date, with respect to the issuance and sale of the Securities, the Offering Memorandum and the Pricing Disclosure Package and other related matters as the Representatives may reasonably require, and the Issuers and the Guarantors shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters. (e) At the time of execution of this Agreement, the Representatives shall have received from KPMG LLP a letter, in form and substance satisfactory to the Representatives, addressed to the Initial Purchasers and dated the date hereof (i) confirming that they are independent registered public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Pricing Disclosure Package, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings. (f) With respect to the letter of KPMG LLP referred to in the preceding paragraph and delivered to the Representatives concurrently with the execution of this Agreement (the “initial letter”), the Company shall have furnished to the Representatives a letter (the “bring-down letter”) of such accountants, addressed to the Initial Purchasers and dated the Closing Date (i) confirming that they are independent registered public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Offering Memorandum, as of a date not more than three days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter. (g) At the time of execution of this Agreement, the Representatives shall have received from XxXxxxxx and XxxXxxxxxxx a letter, in form and substance reasonably satisfactory to the Representatives, addressed to the Initial Purchasers and dated the date hereof covering certain matters relating to information about the reserves of the Company presented in the Pricing Disclosure Package. (h) Each Issuer and each Guarantor shall have furnished to the Representatives a certificate, dated the Closing Date, of each Issuer’s and each Guarantor’s Chief Executive Officer and its Chief Financial Officer (or, in the case of any Guarantor that does not have officers holding such positions or positions of similar authority, of the Chief Executive Officer and Chief Financial Officer of the immediate or ultimate parent of such entity on behalf of such entity) stating that each of them severally represents that: (i) The representations, warranties and agreements of the Issuers and the Guarantors in Section 1 are true and correct on and as of the Closing Date, and the Company and the Guarantors have complied with all of their respective agreements contained herein in all material respects and satisfied all the conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; (ii) He or she has carefully examined the Offering Memorandum and the Pricing Disclosure Package, and, in his or her opinion, (A) the Offering Memorandum, as of its date and on the Closing Date, and the Pricing Disclosure Package, as of the Time of Sale, did not and do not contain any untrue statement of a material fact and did not and do not 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, and (B) since the date of such documents, no event has occurred that should have been set forth in a supplement or amendment to the Offering Memorandum or the Pricing Disclosure Package that has not been so set forth; and (iii) Since the respective dates as of which information is given in the Offering Memorandum and the Pricing Disclosure Package, there has not been any development that resulted in a Material Adverse Effect or any development that could reasonably be expected to result in a Material Adverse Effect, whether or not arising in the ordinary course of business. (i) Except as described in the Pricing Disclosure Package, neither the Company nor any of its subsidiaries has sustained, since the date of the latest audited financial statements included or incorporated by reference in the Pricing Disclosure Package, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, and since such date, there has not been any change in the capitalization or long-term debt of the Company or any of its subsidiaries or any adverse change, or any development involving a prospective adverse change, in or affecting the condition (financial or otherwise), results of operations, members’ equity, properties, management, business or prospects of the Company and its subsidiaries taken as a whole, in each case except as could not, in the aggregate, reasonably be expected to have a Material Adverse Effect. (j) Subsequent to the execution and delivery of this Agreement (i) no downgrading shall have occurred in the rating accorded the Company’s or any of its subsidiaries’ debt securities or preferred stock by any “nationally recognized statistical rating organization” (as that term is defined by the Commission for purposes of Rule 436(g)(2) of the Securities Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company’s or any of its subsidiaries’ debt securities or preferred stock. (k) Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the following: (i) trading in securities generally on the New York Stock Exchange, the NYSE Amex Equities, the Nasdaq Stock Market or in the over-the-counter market shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) trading in any securities of the Company on any exchange or in the over-the-counter market shall have been suspended or materially limited, (iii) a banking moratorium shall have been declared by federal or state authorities, (iv) the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving the United States or there shall have been a declaration of a national emergency or war by the United States or (v) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the United States shall be such), as to make it, in the judgment of the Representatives, impracticable or inadvisable to proceed with the public offering or delivery of the Notes being delivered on such Closing Date on the terms and in the manner contemplated in the Offering Memorandum. (l) At the Closing Date, the Notes shall have been designated for trading on the PORTAL Market. (m) The Issuers and the Guarantors shall have entered into the Registration Rights Agreement and the Initial Purchasers or their counsel shall have received executed counterparts thereof. (n) The Issuers, the Guarantors and the Trustee shall have executed and delivered the Indenture, and the Initial Purchasers or their counsel shall have received an executed counterpart thereof, duly executed by the Issuers, the Guarantors and the Trustee. (o) The Issuers and the Guarantors shall have furnished the Representatives and counsel to the Initial Purchasers with such other certificates, opinions or other documents as they may have reasonably requested. (p) Mid Atlantic Well Service, Inc. shall have been released from its obligations as a guarantor under the Old Indenture. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in all material respects reasonably satisfactory to counsel for the Initial Purchasers.
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The respective obligations of each of the Initial Purchasers hereunder are subject to the accuracy, when made and on and as of the date hereof and on the Closing Date, Date of the representations and warranties of the Issuers Company and each of the Guarantors contained herein, to the performance by the Issuers Company and each of the Guarantors of their respective covenants and other obligations hereunder, hereunder and to each of the following additional terms and conditions:
(a) The Initial Purchasers shall not have discovered and disclosed to the Company on or prior to the Closing Date that the Pricing Disclosure Package Time of Sale Information or the Offering Memorandum Memorandum, or any amendment or supplement thereto thereto, contains an untrue statement of a fact thatwhich, in the opinion of Xxxx Xxxx Xxxxxxx Xxxxx Xxxxxx & Xxxx LLPXxxxxx L.L.P., counsel to the Initial Purchasers, is material or omits to state a fact thatwhich, in the opinion of such counsel, is material and is necessary in order to make the statements therein, in the light of the circumstances under which they were madethen prevailing, not misleading.
(b) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Registration Rights AgreementSecurities, the Guarantees, the Operative Documents, the Indenture, the Securities, the Exchange Securities, Time of Sale Information and the Offering Memorandum and the Pricing Disclosure PackageMemorandum, and all other legal matters relating to this Agreement, the Registration Rights Agreement, the Indenture, the Securities, the Exchange Securities Agreement and the transactions contemplated hereby and thereby shall be reasonably satisfactory in all material respects to counsel for the Initial Purchasers, and the Company and the Guarantors shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(c) Xxxxx & Xxxxxxxxx Xxxxx LLP shall have furnished to the Representatives Initial Purchasers its written opinion, as counsel to the IssuersCompany and the Guarantors, addressed to the Initial Purchasers and dated the Closing Date, in form and substance reasonably satisfactory to the RepresentativesInitial Purchasers, substantially in the form attached hereto as of Exhibit B. GableGotwalsA hereto.
(d) Xxxxx Xxxxxxx, General Counsel of the Company, shall have furnished to the Representatives its Initial Purchasers his written opinion, as special Oklahoma counsel to the IssuersCompany and the Guarantors, addressed to the Initial Purchasers and dated the Closing Date, in form and substance reasonably satisfactory to the RepresentativesInitial Purchasers, substantially in the form attached hereto as of Exhibit X. Xxxxxxxx Xxxxxx, General Counsel of the Company, shall have furnished to the Representatives her written opinion, addressed to the B hereto.
(e) The Initial Purchasers and dated the Closing Date, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit D.
(d) The Representatives shall have received from Xxxx Xxxx Xxxxxxx Xxxxx Xxxxxx & Xxxx LLPXxxxxx L.L.P., counsel for the Initial Purchasers, such opinion or opinionsopinion, dated the Closing Date, with respect to the issuance and sale of the Securities, the Time of Sale Information, the Offering Memorandum and the Pricing Disclosure Package and other related matters as the Representatives Initial Purchasers may reasonably require, and the Issuers and the Guarantors Company shall have furnished to such counsel such documents and information as they such counsel reasonably request requests for the purpose of enabling them to pass upon such matters.
(ef) At the time of execution of this Agreement, the Representatives Initial Purchasers shall have received from KPMG Deloitte & Touche LLP a letter, in form and substance satisfactory to the RepresentativesInitial Purchasers, addressed to the Initial Purchasers and dated the date hereof (i) confirming that they are independent registered public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, Commission and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Pricing Disclosure PackageTime of Sale Information, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and (iii) covering such other matters as are ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(fg) With respect to the letter of KPMG LLP Deloitte & Touche LLP, referred to in the preceding paragraph and delivered to the Representatives Initial Purchasers concurrently with the execution of this Agreement (the “initial letter”), the Company shall have furnished to the Representatives Initial Purchasers a letter (the “bring-down letter”) ” of such accountants, addressed to the Initial Purchasers and dated the Closing Date (i) confirming that they are independent registered public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the date of the bring-down letter Closing Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in each of the Time of Sale Information or the Offering Memorandum, as of a date not more than three days prior to the date of the bring-down letterClosing Date), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(gh) Except as described in the Time of Sale Information and the Offering Memorandum, (i) neither the Company, any Guarantor nor any of their respective subsidiaries shall have sustained, since the date of the latest audited financial statements included and incorporated by reference in the Time of Sale Information and the Offering Memorandum, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, or (ii) since such date, there shall not have been any change in the capital stock or long-term debt of the Company, any Guarantor or any of their respective subsidiaries or any change, or any development involving a prospective change, in or affecting the business, properties, prospects, financial condition, stockholders’ equity or results of operations of the Company, the Guarantors and their respective subsidiaries, taken as a whole, the effect of which, in any such case described in clause (i) or (ii), is, individually or in the aggregate, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the offering or the delivery of the Securities being delivered on the Closing Date on the terms and in the manner contemplated in the Time of Sale Information and the Offering Memorandum.
(i) At the time of execution of this Agreement, the Representatives Initial Purchasers shall have received from XxXxxxxx and XxxXxxxxxxx a the Company Reservoir Engineer an initial letter (an “initial expert letter”), in form and substance reasonably satisfactory to the RepresentativesInitial Purchasers, addressed to the Initial Purchasers and dated the date hereof covering certain matters relating to information about the reserves and a subsequent letter dated as of the Closing Date, which such letter shall cover the period from any initial expert letter to the Closing Date, confirming that they are independent with respect to the Company presented in and stating the Pricing Disclosure Packageconclusions and findings of such firm with respect to matters pertaining to the Company’s use of the reports of proved reserves from the Company Reservoir Engineer.
(hj) Each Issuer The Company and each Guarantor shall have furnished or caused to be furnished to the Representatives a certificate, Initial Purchasers dated as of the Closing Date, of each Issuer’s and each Guarantor’s Chief Executive Officer and its Chief Financial Officer (or, in the case of any Guarantor that does not have officers holding such positions or positions of similar authority, Date a certificate of the Chief Executive Officer and Chief Financial Officer of the immediate Company and each Guarantor, or ultimate parent of other officers satisfactory to the Initial Purchasers, as to such entity on behalf of such entity) stating that each of them severally represents matters as the Representative may reasonably request, including, without limitation, a statement that:
(i) The representations, warranties and agreements of the Issuers Company and the Guarantors in Section 1 3 are true and correct on and as of the Closing Date, and the Company and the Guarantors have complied with all of their respective its agreements contained herein in all material respects and satisfied all the conditions on their its part to be performed or satisfied hereunder at or prior to the Closing Date;; and
(ii) He or she has carefully They have examined the Offering Memorandum Time of Sale Information and the Pricing Disclosure PackageOffering Memorandum, and, in his or her their opinion, (A) the Time of Sale Information, as of the Time of Sale and as of the Closing Date, and the Offering Memorandum, as of its date and on as of the Closing Date, and the Pricing Disclosure Package, as of the Time of Sale, did not and do not contain any untrue statement of a material fact and did not and do not 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, misleading and (B) since the date of such documentsthe Time of Sale Information and the Offering Memorandum, no event has occurred that which should have been set forth in a supplement or amendment to the Offering Memorandum or the Pricing Disclosure Package that has not been so set forth; and
(iii) Since the respective dates as Time of which information is given in Sale Information and the Offering Memorandum and the Pricing Disclosure Package, there has not been any development that resulted in a Material Adverse Effect or any development that could reasonably be expected to result in a Material Adverse Effect, whether or not arising in the ordinary course of businessMemorandum.
(i) Except as described in the Pricing Disclosure Package, neither the Company nor any of its subsidiaries has sustained, since the date of the latest audited financial statements included or incorporated by reference in the Pricing Disclosure Package, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, and since such date, there has not been any change in the capitalization or long-term debt of the Company or any of its subsidiaries or any adverse change, or any development involving a prospective adverse change, in or affecting the condition (financial or otherwise), results of operations, members’ equity, properties, management, business or prospects of the Company and its subsidiaries taken as a whole, in each case except as could not, in the aggregate, reasonably be expected to have a Material Adverse Effect.
(jk) Subsequent to the earlier of the Time of Sale and the execution and delivery of this Agreement (i) no downgrading shall have occurred in the rating accorded the Company’s or any of its subsidiaries’ Guarantor’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” (as that such term is defined by the Commission for purposes of Rule 436(g)(2) used in Section 15E of the Securities Exchange Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with possible negative implicationsrespect to, its rating of the Securities or of any other debt securities issued or guaranteed by the Company or any of the Company’s or any of its subsidiaries’ debt securities or preferred stock.
Guarantors (k) Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the following: (i) trading in securities generally on the New York Stock Exchangeeach case, the NYSE Amex Equities, the Nasdaq Stock Market or in the over-the-counter market shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) trading in any securities of the Company on any exchange or in the over-the-counter market shall have been suspended or materially limited, (iii) a banking moratorium shall have been declared by federal or state authorities, (iv) the United States shall have become engaged in hostilities, there shall have been than an escalation in hostilities involving the United States or there shall have been a declaration announcement with positive implications of a national emergency or war by the United States or (v) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the United States shall be suchpossible upgrading), as to make it, in the judgment of the Representatives, impracticable or inadvisable to proceed with the public offering or delivery of the Notes being delivered on such Closing Date on the terms and in the manner contemplated in the Offering Memorandum.
(l) At The Initial Purchasers shall have received a counterpart of the Closing Date, the Notes Registration Rights Agreement that shall have been designated for trading on executed and delivered by a duly authorized officer of the PORTAL MarketCompany and each of the Guarantors.
(m) The Issuers Securities shall be eligible for clearance and the Guarantors shall have entered into the Registration Rights Agreement and the Initial Purchasers or their counsel shall have received executed counterparts thereofsettlement through DTC.
(n) The Issuers, the Guarantors and the Trustee Indenture shall have been duly executed and delivered by a duly authorized officer of the IndentureCompany, and the Initial Purchasers or their counsel shall have received an executed counterpart thereof, duly executed by the Issuers, each of the Guarantors and the Trustee.
(o) The Issuers Securities and the notation of guarantees shall be executed by the Company and the Guarantors in substantially the respective forms set forth in the Indenture and the Securities shall have furnished be authenticated and delivered by the Representatives and counsel to Trustee in accordance with the Initial Purchasers with such other certificates, opinions or other documents as they may have reasonably requested.
(p) Mid Atlantic Well Service, Inc. shall have been released from its obligations as a guarantor under the Old Indenture. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in all material respects form and substance reasonably satisfactory to counsel for the Initial Purchasers.
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The respective obligations of the Initial Purchasers hereunder are subject to the accuracy, when made and on the Closing Date, of the representations and warranties of the Issuers Company and the Guarantors contained herein, to the performance by the Issuers Company and the Guarantors of their respective obligations hereunder, and to each of the following additional terms and conditions:
(a) The No Initial Purchasers Purchaser shall not have discovered and disclosed to the Company on or prior to the Closing Date that the Pricing Disclosure Package or the Offering Memorandum or any amendment or supplement thereto contains an untrue statement of a fact thatwhich, in the opinion of Xxxx Xxxx Xxxxxxx Xxxxx Xxxxxx & Xxxx LLPXxxxxxx, counsel for the Initial Purchasers, is material or omits to state a fact thatwhich, in the opinion of such counsel, is material and is necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(b) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Registration Rights Agreement, the Indenture, the Securities, the Exchange Securitiesother Operative Documents, the Offering Memorandum and the Pricing Disclosure PackageMemorandum, and all other legal matters relating to this Agreement, the Registration Rights Agreement, the Indenture, the Securities, the Exchange Securities Agreement and the transactions contemplated hereby and thereby shall be reasonably satisfactory in all material respects to counsel for the Initial Purchasers, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(c) Xxxxx Xxxxxxx Xxxxxxx & Xxxxxxxxx LLP Xxxxxxxx shall have furnished to the Representatives Initial Purchasers, its written opinion, as counsel to the IssuersCompany, addressed to the Initial Purchasers and dated the Closing Date, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit B. GableGotwalsA.
(d) Xxxxxxxxxxx X. Xxxxxxx, General Counsel of the Company, shall have furnished to the Representatives its Initial Purchasers his written opinion, as special Oklahoma counsel General Counsel to the IssuersCompany, addressed to the Initial Purchasers and dated the Closing Date, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit X. Xxxxxxxx Xxxxxx, General Counsel of the Company, shall have furnished to the Representatives her written opinion, addressed to the B.
(e) The Initial Purchasers and dated the Closing Date, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit D.
(d) The Representatives shall have received from Xxxx Xxxx Xxxxxxx Xxxxx Xxxxxx & Xxxx LLPXxxxxxx, counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date, with respect to the issuance and sale of the SecuritiesSeries A Notes, the Series A Guarantees, the Offering Memorandum and the Pricing Disclosure Package and other related matters as the Representatives Initial Purchasers may reasonably require, and the Issuers and the Guarantors Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(ef) At the time of execution of this Agreement, the Representatives Initial Purchasers shall have received from KPMG LLP PricewaterhouseCoopers LLP, a letter, in accordance with professional standards established by the AICPA and in form and substance satisfactory to the RepresentativesInitial Purchasers, addressed to the Initial Purchasers and dated the date hereof (i) confirming that they are independent registered public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X 101 of the CommissionAICPA's Code of Professional Conduct, and its interpretation and rulings and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Pricing Disclosure PackageOffering Memorandum, as of a date not more than three five days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “' "comfort letters” " to underwriters Initial Purchasers in connection with registered public offerings.
(fg) With respect to the letter of KPMG PricewaterhouseCoopers LLP referred to in the preceding paragraph and delivered to the Representatives Initial Purchasers concurrently with the execution of this Agreement (the “"initial letter”"), the Company shall have furnished to the Representatives Initial Purchasers a letter (the “"bring-down letter”") of such accountantsaccountants in accordance with professional standards established by the AICPA, addressed to the Initial Purchasers and dated the Closing Date (i) confirming that they are independent registered public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X 101 of the CommissionAICPA's Code of Professional Conduct, and its interpretation and rulings and (ii) stating, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Offering Memorandum, as of a date not more than three five days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(g) At the time of execution of this Agreement, the Representatives shall have received from XxXxxxxx and XxxXxxxxxxx a letter, in form and substance reasonably satisfactory to the Representatives, addressed to the Initial Purchasers and dated the date hereof covering certain matters relating to information about the reserves of the Company presented in the Pricing Disclosure Package.
(h) Each Issuer and each Guarantor The Company shall have furnished to the Representatives Initial Purchasers a certificate, dated the Closing Date, of each Issuer’s and each Guarantor’s Chief Executive Officer and its Chief Financial Officer (or, in the case of any Guarantor that does not have officers holding such positions or positions of similar authority, of the Chief Executive Officer and Chief Financial Officer of the immediate or ultimate parent of such entity on behalf of such entity) Senior Vice President-Finance stating that each of them severally represents that:
(i) The representationsunaudited financial information included in the column "Acquisitions Historical" in the Offering Memorandum are derived from the accounting records or supporting schedules of each such acquired entity and/or the Company and, warranties and agreements to such officer's knowledge, was prepared in accordance with accounting principles generally accepted in the United States of America; and
(ii) The adjustments to EBITDA described in footnote 1 on the Summary Financial Data table contained in the Offering Memorandum are reasonable and, in such officer's opinion or belief, there are no other unusual or non-recurring items affecting the income statement in any of the Issuers periods presented that had the effect of increasing EBITDA during any of the periods presented.
(i) The Company and the Guarantors shall have furnished to the Initial Purchasers a certificate, dated the Closing Date, of their respective Chairman of the Board, their respective President or a Vice President and their respective chief financial officer stating that:
(i) The representations and warranties of the Company and the Guarantors in Section 1 are true and correct on and as of the Closing Date, and ; the Company and the Guarantors have complied with all of their respective agreements contained herein in all material respects herein; and satisfied all the conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date;set forth in Sections 7(j) and 7(k) have been fulfilled; and
(ii) He or she has They have carefully examined the Offering Memorandum and the Pricing Disclosure Package, and, in his or her opinion, their opinion (A) the Offering Memorandum, Memorandum as of its date and on as of the Closing Date, and the Pricing Disclosure Package, as of the Time of Sale, did not and do not contain include any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, therein not misleading, and (B) since the date of such documentsthe Offering Memorandum, no event has occurred that which should have been set forth in a supplement or amendment to the Offering Memorandum or the Pricing Disclosure Package that has not been so set forth; and
(iii) Since the respective dates as of which information is given in the Offering Memorandum and the Pricing Disclosure Package, there has not been any development that resulted in a Material Adverse Effect or any development that could reasonably be expected to result in a Material Adverse Effect, whether or not arising in the ordinary course of businessMemorandum.
(i) Except as described in the Pricing Disclosure Package, neither Neither the Company nor any of its subsidiaries has sustained, shall have sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Disclosure Package, Offering Memorandum any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, and otherwise than as set forth or contemplated in the Offering Memorandum (or in the documents incorporated therein by reference) or (ii) since such date, date there has shall not have been any change in the capitalization capital stock or long-term debt of the Company or any of its subsidiaries or any adverse change, or any development involving a prospective adverse change, in or affecting the condition (financial or otherwise), results of operations, members’ equity, propertiesbusiness, management, business financial position, stockholders' equity or prospects results of operations of the Company and its subsidiaries taken as a whole, otherwise than as set forth or contemplated in each the Offering Memorandum (or in the documents incorporated therein by reference), the effect of which, in any such case except as could notdescribed in clause (i) or (ii), is, in the aggregatejudgment of the Initial Purchasers, reasonably be expected so material and adverse as to have a Material Adverse Effectmake it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes and the Guarantees being delivered on the Closing Date on the terms and in the manner contemplated in the Offering Memorandum.
(jk) Subsequent to the execution and delivery of this Agreement (i) no downgrading shall have occurred in the rating accorded the Company’s or any of its subsidiaries’ 's debt securities or preferred stock by any “"nationally recognized statistical rating organization” (," as that term is defined by the Commission for purposes of Rule 436(g)(2) of under the Securities Act), Act and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company’s or any of its subsidiaries’ 's debt securities or preferred stocksecurities.
(kl) Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the following: (i) trading in securities generally on the New York Stock Exchange, the NYSE Amex EquitiesAmerican Stock Exchange, the Nasdaq Stock NASDAQ National Market or the over-the-counter market, or trading in any securities of the Company on any exchange or in the over-the-counter market shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) trading in any securities of the Company on any exchange or in the over-the-counter market shall have been suspended or materially limited, (iii) a banking moratorium shall have been declared by federal Federal or state authorities, (iviii) the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving the United States or there shall have been a declaration of a national emergency or war by the United States or (viv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, including without limitation, limitation as a result of terrorist activities after the date hereof (hereof, or the effect of international conditions on the financial markets in the United States shall be such), as to make itit in the case of (iii) or (iv), in the sole judgment of a majority in interest of the Representativesseveral Initial Purchasers, impracticable or inadvisable to proceed with the public offering or delivery of the Notes being delivered on such the Closing Date on the terms and in the manner contemplated in the Offering Memorandum.
(l) At the Closing Date, the Notes shall have been designated for trading on the PORTAL Market.
(m) The Issuers and the Guarantors shall have entered into the Registration Rights Agreement and the Initial Purchasers or their counsel shall have received executed counterparts thereof.
(n) The Issuers, the Guarantors and the Trustee shall have executed and delivered the Indenture, and the Initial Purchasers or their counsel shall have received an executed counterpart thereof, duly executed by the Issuers, the Guarantors and the Trustee.
(o) The Issuers and the Guarantors shall have furnished the Representatives and counsel to the Initial Purchasers with such other certificates, opinions or other documents as they may have reasonably requested.
(p) Mid Atlantic Well Service, Inc. shall have been released from its obligations as a guarantor under the Old Indenture. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in all material respects form and substance reasonably satisfactory to counsel for the Initial Purchasers.
Appears in 1 contract
Samples: Purchase Agreement (Eer Systems Inc)
Conditions of Initial Purchasers’ Obligations. The respective obligations of the Initial Purchasers hereunder are subject to the accuracy, when made and on the Closing Date, of the representations and warranties of the Issuers Company and the Guarantors contained herein, to the performance by the Issuers Company and the Guarantors of their respective obligations hereunder, and to each of the following additional terms and conditions:
(a) The No Initial Purchasers Purchaser shall not have discovered and disclosed to the Company on or prior to the Closing Date that the Pricing Disclosure Package or the Offering Memorandum or any amendment or supplement thereto contains an untrue statement of a fact thatwhich, in the opinion of Xxxx Xxxx Xxxxxx & Xxxxxxx Xxxxx & Xxxx LLP, counsel for the Initial Purchasers, is material or omits to state a fact thatwhich, in the opinion of such counsel, is material and is necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(b) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Registration Rights Agreement, the Indenture, the Securities, the Exchange Securitiesother Operative Documents, the Offering Memorandum and the Pricing Disclosure PackageMemorandum, and all other legal matters relating to this Agreement, the Registration Rights Agreement, the Indenture, the Securities, the Exchange Securities Agreement and the transactions contemplated hereby and thereby shall be reasonably satisfactory in all material respects to counsel for the Initial Purchasers, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(c) Xxxxx Xxxxxxx Xxxxxxx & Xxxxxxxxx LLP Xxxxxxxx shall have furnished to the Representatives Initial Purchasers, its written opinion, as counsel to the IssuersCompany, addressed to the Initial Purchasers and dated the Closing Date, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit B. GableGotwalsA.
(d) Xxxxxxxxxxx X. Xxxxxxx, General Counsel of the Company, shall have furnished to the Representatives its Initial Purchasers his written opinion, as special Oklahoma counsel General Counsel to the IssuersCompany, addressed to the Initial Purchasers and dated the Closing Date, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit X. Xxxxxxxx Xxxxxx, General Counsel of the Company, shall have furnished to the Representatives her written opinion, addressed to the B.
(e) The Initial Purchasers and dated the Closing Date, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit D.
(d) The Representatives shall have received from Xxxx Xxxx Xxxxxx & Xxxxxxx Xxxxx & Xxxx LLP, counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date, with respect to the issuance and sale of the SecuritiesSeries A Notes, the Series A Guarantees, the Offering Memorandum and the Pricing Disclosure Package and other related matters as the Representatives Initial Purchasers may reasonably require, and the Issuers and the Guarantors Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(ef) At the time of execution of this Agreement, the Representatives Initial Purchasers shall have received from KPMG LLP PricewaterhouseCoopers LLP, a letter, in accordance with professional standards established by the AICPA and in form and substance satisfactory to the RepresentativesInitial Purchasers, addressed to the Initial Purchasers and dated the date hereof (i) confirming that they are independent registered public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X 101 of the CommissionAICPA's Code of Professional Conduct, and its interpretation and rulings and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Pricing Disclosure PackageOffering Memorandum, as of a date not more than three five days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “' "comfort letters” " to underwriters Initial Purchasers in connection with registered public offerings.
(fg) With respect to the letter of KPMG PricewaterhouseCoopers LLP referred to in the preceding paragraph and delivered to the Representatives Initial Purchasers concurrently with the execution of this Agreement (the “"initial letter”"), the Company shall have furnished to the Representatives Initial Purchasers a letter (the “"bring-down letter”") of such accountantsaccountants in accordance with professional standards established by the AICPA, addressed to the Initial Purchasers and dated the Closing Date (i) confirming that they are independent registered public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X 101 of the CommissionAICPA's Code of Professional Conduct, and its interpretation and rulings and (ii) stating, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Offering Memorandum, as of a date not more than three five days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(g) At the time of execution of this Agreement, the Representatives shall have received from XxXxxxxx and XxxXxxxxxxx a letter, in form and substance reasonably satisfactory to the Representatives, addressed to the Initial Purchasers and dated the date hereof covering certain matters relating to information about the reserves of the Company presented in the Pricing Disclosure Package.
(h) Each Issuer The Company and each Guarantor the Guarantors shall have furnished to the Representatives Initial Purchasers a certificate, dated the Closing Date, of each Issuer’s and each Guarantor’s Chief Executive Officer and its Chief Financial Officer (or, in the case of any Guarantor that does not have officers holding such positions or positions of similar authority, their respective Chairman of the Chief Executive Officer Board, their respective President or a Vice President and Chief Financial Officer of the immediate or ultimate parent of such entity on behalf of such entity) their respective chief financial officer stating that each of them severally represents that:
(i) The representations, representations and warranties and agreements of the Issuers Company and the Guarantors in Section 1 are true and correct on and as of the Closing Date, and ; the Company and the Guarantors have complied with all of their respective agreements contained herein in all material respects herein; and satisfied all the conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date;set forth in Sections 7(i) and 7(j) have been fulfilled; and
(ii) He or she has They have carefully examined the Offering Memorandum and the Pricing Disclosure Package, and, in his or her opinion, their opinion (A) the Offering Memorandum, Memorandum as of its date and on as of the Closing Date, and the Pricing Disclosure Package, as of the Time of Sale, did not and do not contain include any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, therein not misleading, and (B) since the date of such documentsthe Offering Memorandum, no event has occurred that which should have been set forth in a supplement or amendment to the Offering Memorandum or the Pricing Disclosure Package that has not been so set forth; and
(iii) Since the respective dates as of which information is given in the Offering Memorandum and the Pricing Disclosure Package, there has not been any development that resulted in a Material Adverse Effect or any development that could reasonably be expected to result in a Material Adverse Effect, whether or not arising in the ordinary course of businessMemorandum.
(i) Except as described in the Pricing Disclosure Package, neither Neither the Company nor any of its subsidiaries has sustained, shall have sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Disclosure Package, Offering Memorandum any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, and otherwise than as set forth or contemplated in the Offering Memorandum (or in the documents incorporated therein by reference) or (ii) since such date, date there has shall not have been any change in the capitalization capital stock or long-term debt of the Company or any of its subsidiaries or any adverse change, or any development involving a prospective adverse change, in or affecting the condition (financial or otherwise), results of operations, members’ equity, propertiesbusiness, management, business financial position, stockholders' equity or prospects results of operations of the Company and its subsidiaries taken as a whole, otherwise than as set forth or contemplated in each the Offering Memorandum (or in the documents incorporated therein by reference), the effect of which, in any such case except as could notdescribed in clause (i) or (ii), is, in the aggregatejudgment of the Initial Purchasers, reasonably be expected so material and adverse as to have a Material Adverse Effectmake it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes and the Guarantees being delivered on the Closing Date on the terms and in the manner contemplated in the Offering Memorandum.
(j) Subsequent to the execution and delivery of this Agreement (i) no downgrading shall have occurred in the rating accorded the Company’s or any of its subsidiaries’ 's debt securities or preferred stock by any “"nationally recognized statistical rating organization” (," as that term is defined by the Commission for purposes of Rule 436(g)(2) of under the Securities Act), Act and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company’s or any of its subsidiaries’ 's debt securities or preferred stocksecurities.
(k) Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the following: (i) trading in securities generally on the New York Stock Exchange, the NYSE Amex EquitiesAmerican Stock Exchange, the Nasdaq Stock NASDAQ National Market or the over-the-counter market, or trading in any securities of the Company on any exchange or in the over-the-counter market shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) trading in any securities of the Company on any exchange or in the over-the-counter market shall have been suspended or materially limited, (iii) a banking moratorium shall have been declared by federal Federal or state authorities, (iviii) the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving the United States or there shall have been a declaration of a national emergency or war by the United States or there shall have occurred any other calamity or crisis (vincluding, without limitation, as a result of terrorist activities) or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, including without limitation, limitation as a result of terrorist activities after the date hereof (hereof, or the effect of international conditions on the financial markets in the United States shall be such), as to make itit in the case of (iii) or (iv), in the sole judgment of a majority in interest of the Representativesseveral Initial Purchasers, impracticable or inadvisable to proceed with the public offering or delivery of the Notes being delivered on such the Closing Date on the terms and in the manner contemplated in the Offering Memorandum.
(l) At On or prior to the Closing Date, the Notes The Depository Trust Company shall have been designated accepted the Series A Notes for trading on the PORTAL Market.
(m) The Issuers and the Guarantors shall have entered into the Registration Rights Agreement and the Initial Purchasers or their counsel shall have received executed counterparts thereof.
(n) The Issuers, the Guarantors and the Trustee shall have executed and delivered the Indenture, and the Initial Purchasers or their counsel shall have received an executed counterpart thereof, duly executed by the Issuers, the Guarantors and the Trustee.
(o) The Issuers and the Guarantors shall have furnished the Representatives and counsel to the Initial Purchasers with such other certificates, opinions or other documents as they may have reasonably requested.
(p) Mid Atlantic Well Service, Inc. shall have been released from its obligations as a guarantor under the Old Indentureclearance. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in all material respects form and substance reasonably satisfactory to counsel for the Initial Purchasers.
Appears in 1 contract
Samples: Purchase Agreement (Microdyne Corp)
Conditions of Initial Purchasers’ Obligations. The respective obligations of the Initial Purchasers hereunder are subject to the accuracy, when made and on the Closing Date, of the representations and warranties of the Issuers and the Guarantors contained herein, to the performance by the Issuers and the Guarantors of their respective obligations hereunder, and to each of the following additional terms and conditions:
(a) The Initial Purchasers shall not have discovered and disclosed to the Company on or prior to the Closing Date that the Pricing Disclosure Package or the Offering Memorandum or any amendment or supplement thereto contains an untrue statement of a fact that, in the opinion of Xxxx Xxxx Xxxxxxx Xxxxx & Xxxx LLPXxxxx L.L.P., is material or omits to state a fact that, in the opinion of such counsel, is material and is necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(b) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Registration Rights Agreement, the Indenture, the Securities, the Exchange Securities, the Offering Memorandum and the Pricing Disclosure Package, and all other legal matters relating to this Agreement, the Registration Rights Agreement, the Indenture, the Securities, the Exchange Securities and the transactions contemplated hereby and thereby shall be reasonably satisfactory in all material respects to counsel for the Initial Purchasers, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(c) Xxxx Xxxx Xxxxxxx Xxxxx & Xxxxxxxxx Xxxx LLP shall have furnished to the Representatives its written opinion, as counsel to the Issuers, addressed to the Initial Purchasers and dated the Closing Date, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit B. GableGotwals, shall have furnished to the Representatives its written opinion, as special Oklahoma counsel to the Issuers, addressed to the Initial Purchasers and dated the Closing Date, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit X. Xxxxxxxx Xxxxxx, General Counsel of the Company, shall have furnished to the Representatives her written opinion, addressed to the Initial Purchasers and dated the Closing Date, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit D.
(d) The Representatives shall have received from Xxxx Xxxx Xxxxxxx Xxxxx & Xxxx LLPXxxxx L.L.P., counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date, with respect to the issuance and sale of the Securities, the Offering Memorandum and the Pricing Disclosure Package and other related matters as the Representatives may reasonably require, and the Issuers and the Guarantors shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(e) At the time of execution of this Agreement, the Representatives shall have received from each of KPMG LLP, Xxxx & Associates LLP and Deloitte & Touche LLP a letter, in form and substance satisfactory to the Representatives, addressed to the Initial Purchasers and dated the date hereof (i) confirming that they are independent registered public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Pricing Disclosure Package, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(f) With respect to the letter of KPMG LLP referred to in the preceding paragraph and delivered to the Representatives concurrently with the execution of this Agreement (the “initial letter”), the Company shall have furnished to the Representatives a letter (the “bring-down letter”) of such accountants, addressed to the Initial Purchasers and dated the Closing Date (i) confirming that they are independent registered public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Offering Memorandum, as of a date not more than three days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(g) At the time of execution of this Agreement, the Representatives shall have received from each of XxXxxxxx & XxXxxxxxxx and XxxXxxxxxxx Schlumberger Data and Technology Corporation a letter, in form and substance reasonably satisfactory to the Representatives, addressed to the Initial Purchasers and dated the date hereof covering certain matters relating to information about the reserves of the Company presented in the Pricing Disclosure Package.
(h) Each Issuer and each Guarantor shall have furnished to the Representatives a certificate, dated the Closing Date, of each Issuer’s and each Guarantor’s Chief Executive Officer and its Chief Financial Officer (or, in the case of any Guarantor that does not have officers holding such positions or positions of similar authority, of the Chief Executive Officer and Chief Financial Officer of the immediate or ultimate parent of such entity on behalf of such entity) stating that each of them severally represents that:
(i) The representations, warranties and agreements of the Issuers and the Guarantors in Section 1 are true and correct on and as of the Closing Date, and the Company and the Guarantors have complied with all of their respective agreements contained herein in all material respects and satisfied all the conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) He or she has carefully examined the Offering Memorandum and the Pricing Disclosure Package, and, in his or her opinion, (A) the Offering Memorandum, as of its date and on the Closing Date, and the Pricing Disclosure Package, as of the Time of Sale, did not and do not contain any untrue statement of a material fact and did not and do not 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, and (B) since the date of such documents, no event has occurred that should have been set forth in a supplement or amendment to the Offering Memorandum or the Pricing Disclosure Package that has not been so set forth; and
(iii) Since the respective dates as of which information is given in the Offering Memorandum and the Pricing Disclosure Package, there has not been any development that resulted in a Material Adverse Effect or any development that could reasonably be expected to result in a Material Adverse Effect, whether or not arising in the ordinary course of business.
(i) Except as described in the Pricing Disclosure Package, neither the Company nor any of its subsidiaries has sustained, since the date of the latest audited financial statements included or incorporated by reference in the Pricing Disclosure Package, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, and since such date, there has not been any change in the capitalization or long-term debt of the Company or any of its subsidiaries or any adverse change, or any development involving a prospective adverse change, in or affecting the condition (financial or otherwise), results of operations, members’ equity, properties, management, business or prospects of the Company and its subsidiaries taken as a whole, in each case except as could not, in the aggregate, reasonably be expected to have a Material Adverse Effect.
(j) Subsequent to the execution and delivery of this Agreement (i) no downgrading shall have occurred in the rating accorded the Company’s or any of its subsidiaries’ debt securities or preferred stock by any “nationally recognized statistical rating organization” (as that term is defined by the Commission for purposes of Rule 436(g)(2) of the Securities ActRules and Regulations), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company’s or any of its subsidiaries’ debt securities or preferred stock.
(k) Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the following: (i) trading in securities generally on the New York Stock Exchange, the NYSE Amex EquitiesAmerican Stock Exchange, the Nasdaq Stock Market or in the over-the-counter market shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) trading in any securities of the Company on any exchange or in the over-the-counter market shall have been suspended or materially limited, (iii) a banking moratorium shall have been declared by federal or state authorities, (iv) the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving the United States or there shall have been a declaration of a national emergency or war by the United States or (v) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the United States shall be such), as to make it, in the judgment of the Representatives, impracticable or inadvisable to proceed with the public offering or delivery of the Notes being delivered on such Closing Delivery Date on the terms and in the manner contemplated in the Offering Memorandum.
(l) At the Closing Date, the Notes shall have been designated for trading on the PORTAL Market.
(m) The Issuers and the Guarantors shall have entered into the Registration Rights Agreement and the Initial Purchasers or their counsel shall have received executed counterparts thereof.
(n) The Issuers, the Guarantors and the Trustee shall have executed and delivered the Indenture, and the Initial Purchasers or their counsel shall have received an executed counterpart thereof, duly executed by the Issuers, the Guarantors and the Trustee.
(o) The Issuers and the Guarantors shall have furnished the Representatives and counsel to the Initial Purchasers with such other certificates, opinions or other documents as they may have reasonably requested.
(p) Mid Atlantic Well Service, Inc. shall have been released from its obligations as a guarantor under the Old Indenture. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in all material respects reasonably satisfactory to counsel for the Initial Purchasers.
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The respective obligations of the Initial Purchasers hereunder are subject to the accuracy, when made and on the Closing Date, of the representations and warranties of the Issuers and the Guarantors contained herein, to the performance by the Issuers and the Guarantors of their respective obligations hereunder, and to each of the following additional terms and conditions:
(a) The Initial Purchasers shall not have discovered and disclosed to the Company on or prior to the Closing Date that the Pricing Disclosure Package or the Offering Memorandum or any amendment or supplement thereto contains an untrue statement of a fact that, in the opinion of Xxxx Xxxx Xxxxxx & Xxxxxxx Xxxxx & Xxxx LLP, is material or omits to state a fact that, in the opinion of such counsel, is material and is required to be stated therein or is necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(b) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Registration Rights Agreement, the Indenture, the Securities, the Exchange Securities, the Offering Memorandum and the Pricing Disclosure Package, and all other legal matters relating to this Agreement, the Registration Rights Agreement, the Indenture, the Securities, the Exchange Securities and the transactions contemplated hereby and thereby shall be reasonably satisfactory in all material respects to counsel for the Initial Purchasers, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(c) Xxxxx & Xxxxxxxxx LLP Xxxxx L.L.P. shall have furnished to the Representatives its written opinion, as counsel to the Issuers, addressed to the Initial Purchasers and dated the Closing Date, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit B. GableGotwals, X. XxXxxx & Xxxx shall have furnished to the Representatives its written opinion, as special Oklahoma counsel to the Issuers, addressed to the Initial Purchasers and dated the Closing Date, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit X. Xxxxxxxx Xxxxxx, General Counsel of the Company, shall have furnished to the Representatives her written opinion, addressed to the Initial Purchasers and dated the Closing Date, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit D.
(d) The Representatives shall have received from Xxxx Xxxx Xxxxxx & Xxxxxxx Xxxxx & Xxxx LLP, counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date, with respect to the issuance and sale of the Securities, the Offering Memorandum and the Pricing Disclosure Package and other related matters as the Representatives may reasonably require, and the Issuers and the Guarantors shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(e) At the time of execution of this Agreement, the Representatives shall have received from KPMG LLP a letter, in form and substance reasonably satisfactory to the Representatives, addressed to the Initial Purchasers and dated the date hereof (i) confirming that they are independent registered public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Pricing Disclosure Package, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(f) With respect to the letter of KPMG LLP referred to in the preceding paragraph and delivered to the Representatives concurrently with the execution of this Agreement (the “initial letter”), the Company shall have furnished to the Representatives a letter (the “bring-down letter”) of such accountants, addressed to the Initial Purchasers and dated the Closing Date (i) confirming that they are independent registered public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Offering Memorandum, as of a date not more than three days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(g) At the time of execution of this AgreementAgreement and at the Closing Date, the Representatives shall have received from XxXxxxxx and XxxXxxxxxxx a an initial letter (the “initial expert letter”), in form and substance reasonably satisfactory to the Representatives, addressed to the Initial Purchasers Representatives and dated the date hereof hereof, and a subsequent letter dated as of the Closing Date, which such letter shall cover the period from any initial expert letter to the Closing Date, covering certain matters relating to information about the reserves of the Company presented in the Pricing Disclosure Package.
(h) Each Issuer and each Guarantor shall have furnished to the Representatives a certificate, dated the Closing Date, of each Issuer’s and each Guarantor’s Chief Executive Officer and its Chief Financial Officer (or, in the case of any Guarantor that does not have officers holding such positions or positions of similar authority, of the Chief Executive Officer and Chief Financial Officer of the immediate or ultimate parent of such entity on behalf of such entity) stating that each of them severally represents that:
(i) The representations, warranties and agreements of the Issuers and the Guarantors in Section 1 are true and correct on and as of the Closing Date, and the Company and the Guarantors have complied with all of their respective agreements contained herein in all material respects and satisfied all the conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) He or she Such officer has carefully examined the Offering Memorandum and the Pricing Disclosure Package, and, in his or her such officer’s opinion, (A) the Offering Memorandum, as of its date and on the Closing Date, and the Pricing Disclosure Package, as of the Time of Sale, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (B) since the date of such documents, no event has occurred that should have been set forth in a supplement or amendment to the Offering Memorandum or the Pricing Disclosure Package that has not been so set forth; and
(iii) Since the respective dates as of which information is given in the Offering Memorandum and the Pricing Disclosure Package, there has not been any development that resulted in a Material Adverse Effect or any development that could reasonably be expected to result in a Material Adverse Effect, whether or not arising in the ordinary course of business.
(i) Except as described in the Pricing Disclosure Package, neither the Company nor any of its subsidiaries Subsidiaries has sustained, since the date of the latest audited financial statements included or incorporated by reference in the Pricing Disclosure Package, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, and since such date, there has not been any change in the capitalization or long-term debt of the Company or any of its subsidiaries Subsidiaries or any adverse change, or any development involving a prospective adverse change, in or affecting the condition (financial or otherwise), results of operations, members’ equity, properties, management, business or prospects of the Company and its subsidiaries Subsidiaries taken as a whole, in each case except as could not, in the aggregate, reasonably be expected to have a Material Adverse Effect.
(j) Subsequent to the execution and delivery of this Agreement (i) no downgrading shall have occurred in the rating accorded the Company’s or any of its subsidiariesSubsidiaries’ debt securities or preferred stock by any “nationally recognized statistical rating organization” (as that term is defined by the Commission for purposes of Rule 436(g)(2) of the Securities ActAct as in effect on July 20, 2010), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company’s or any of its subsidiariesSubsidiaries’ debt securities or preferred stock.
(k) Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the following: (i) trading in securities generally on the New York Stock Exchange, the NYSE Amex Equities, the Nasdaq Stock Market or in the over-the-counter market shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) trading in any securities of the Company on any exchange or in the over-the-counter market shall have been suspended or materially limited, (iii) a banking moratorium shall have been declared by federal or state authorities, (iv) the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving the United States or there shall have been a declaration of a national emergency or war by the United States or (v) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the United States shall be such), as to make it, in the judgment of the Representatives, impracticable or inadvisable to proceed with the public offering or delivery of the Notes being delivered on such Closing Date on the terms and in the manner contemplated in the Offering Memorandum.
(l) At the Closing Date, the Notes shall have been designated for trading on the PORTAL Market.
(m) The Issuers and the Guarantors shall have entered into the Registration Rights Agreement and the Initial Purchasers or their counsel shall have received executed counterparts thereof.
(nm) The Issuers, the Guarantors and the Trustee shall have executed and delivered the Indenture, and the Initial Purchasers or their counsel shall have received an executed counterpart thereof, duly executed by the Issuers, the Guarantors and the Trustee.
(on) The Issuers and the Guarantors shall have furnished the Representatives and counsel to the Initial Purchasers with such other certificates, opinions or other documents as they may have reasonably requested.
(p) Mid Atlantic Well Service, Inc. shall have been released from its obligations as a guarantor under the Old Indenture. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in all material respects reasonably satisfactory to counsel for the Initial Purchasers.
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The respective obligations of each of the Initial Purchasers hereunder are subject to the accuracy, when made and on and as of the date hereof and on the Closing Date, Date of the representations and warranties of the Issuers Company and each of the Guarantors contained herein, to the performance by the Issuers Company and each of the Guarantors of their respective covenants and other obligations hereunder, hereunder and to each of the following additional terms and conditions:
(a) The Initial Purchasers shall not have discovered and disclosed to the Company on or prior to the Closing Date that the Pricing Disclosure Package Time of Sale Information or the Offering Memorandum Memorandum, or any amendment or supplement thereto thereto, contains an untrue statement of a fact thatwhich, in the opinion of Xxxx Xxxx Xxxxxxx Xxxxx & Xxxx LLPXxxxx L.L.P., counsel to the Initial Purchasers, is material or omits to state a fact thatwhich, in the opinion of such counsel, is material and is necessary in order to make the statements therein, in the light of the circumstances under which they were madethen prevailing, not misleading.
(b) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Registration Rights AgreementSecurities, the Guarantees, the Operative Documents, the Indenture, the Securities, the Exchange Securities, Time of Sale Information and the Offering Memorandum and the Pricing Disclosure PackageMemorandum, and all other legal matters relating to this Agreement, the Registration Rights Agreement, the Indenture, the Securities, the Exchange Securities Agreement and the transactions contemplated hereby and thereby shall be reasonably satisfactory in all material respects to counsel for the Initial Purchasers, and the Company and the Guarantors shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(c) Xxxxx & Xxxxxxxxx Xxxxx LLP shall have furnished to the Representatives Initial Purchasers its written opinion, as counsel to the IssuersCompany and the Guarantors, addressed to the Initial Purchasers and dated the Closing Date, in form and substance reasonably satisfactory to the RepresentativesInitial Purchasers, substantially in the form attached hereto as of Exhibit B. GableGotwalsA hereto.
(d) Xxxxx, Xxxxxx & Xxxxxx LLP shall have furnished to the Representatives Initial Purchasers its written opinion, as special Oklahoma Colorado counsel to the IssuersCompany and the Guarantors, addressed to the Initial Purchasers and dated the Closing Date, in form and substance reasonably satisfactory to the RepresentativesInitial Purchasers, substantially in the form attached hereto as of Exhibit X. Xxxxxxxx XxxxxxB hereto.
(e) Xxxxxx & Xxxxxxx, General Counsel of the Company, LLP shall have furnished to the Representatives her Initial Purchasers its written opinion, as Oklahoma counsel to the Company and the Guarantors, addressed to the Initial Purchasers and dated the Closing Date, in form and substance reasonably satisfactory to the RepresentativesInitial Purchasers, substantially in the form attached hereto as of Exhibit D.C hereto.
(df) Xxxxx Xxxxxxx, General Counsel of the Company, shall have furnished to the Initial Purchasers his written opinion, as counsel to the Company and the Guarantors, addressed to the Initial Purchasers and dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers, substantially in the form of Exhibit D hereto.
(g) Xxxx Xxxx, Executive Vice President, Chief Financial Officer and Treasurer of the Company shall have furnished to the Initial Purchasers a certificate, addressed to the Initial Purchasers and dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers, substantially in the form of Exhibit E hereto.
(h) The Representatives Initial Purchasers shall have received from Xxxx Xxxx Xxxxxxx Xxxxx & Xxxx LLPXxxxx L.L.P., counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date, with respect to the issuance and sale of the Securities, the Time of Sale Information, the Offering Memorandum and the Pricing Disclosure Package and other related matters as the Representatives Initial Purchasers may reasonably require, and the Issuers and the Guarantors Company shall have furnished to such counsel such documents and information as they such counsel reasonably request requests for the purpose of enabling them to pass upon such matters.
(ei) At the time of execution of this Agreement, the Representatives Initial Purchasers shall have received from KPMG Deloitte & Touche LLP a letter, in form and substance satisfactory to the RepresentativesInitial Purchasers, addressed to the Initial Purchasers and dated the date hereof (i) confirming that they are independent registered public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, Commission and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Pricing Disclosure PackageTime of Sale Information, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and (iii) covering such other matters as are ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(fj) With respect to the letter of KPMG LLP Deloitte & Touche LLP, referred to in the preceding paragraph and delivered to the Representatives Initial Purchasers concurrently with the execution of this Agreement (the “initial letter”), the Company shall have furnished to the Representatives Initial Purchasers a letter (the “bring-down letter”) ” of such accountants, addressed to the Initial Purchasers and dated the Closing Date (i) confirming that they are independent registered public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the date of the bring-down letter Closing Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in each of the Time of Sale Information or the Offering Memorandum, as of a date not more than three days prior to the date of the bring-down letterClosing Date), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter
(k) Except as described in the Time of Sale Information and the Offering Memorandum, (i) neither the Company, any Guarantor nor any of their respective subsidiaries shall have sustained, since the date of the latest audited financial statements included and incorporated by reference in the Time of Sale Information and the Offering Memorandum, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, or (ii) since such date, there shall not have been any change in the capital stock or long-term debt of the Company, any Guarantor or any of their respective subsidiaries or any change, or any development involving a prospective change, in or affecting the business, properties, prospects, financial condition, stockholders’ equity or results of operations of the Company, the Guarantors and their respective subsidiaries, taken as a whole, the effect of which, in any such case described in clause (i) or (ii), is, individually or in the aggregate, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the offering or the delivery of the Securities being delivered on the Closing Date on the terms and in the manner contemplated in the Time of Sale Information and the Offering Memorandum.
(gl) At the time of execution of this Agreement, the Representatives Initial Purchasers shall have received from XxXxxxxx and XxxXxxxxxxx a the Company Reservoir Engineer an initial letter (an “initial expert letter”), in form and substance reasonably satisfactory to the RepresentativesInitial Purchasers, addressed to the Initial Purchasers and dated the date hereof covering certain matters relating to information about the reserves and a subsequent letter dated as of the Closing Date, which such letter shall cover the period from any initial expert letter to the Closing Date, confirming that they are independent with respect to the Company presented in and stating the Pricing Disclosure Packageconclusions and findings of such firm with respect to matters pertaining to the Company’s use of the reports of proved reserves from the Company Reservoir Engineer.
(hm) Each Issuer The Company and each Guarantor shall have furnished or caused to be furnished to the Representatives a certificate, Initial Purchasers dated as of the Closing Date, of each Issuer’s and each Guarantor’s Chief Executive Officer and its Chief Financial Officer (or, in the case of any Guarantor that does not have officers holding such positions or positions of similar authority, Date a certificate of the Chief Executive Officer and Chief Financial Officer of the immediate Company and each Guarantor, or ultimate parent of other officers satisfactory to the Initial Purchasers, as to such entity on behalf of such entity) stating that each of them severally represents matters as the Representative may reasonably request, including, without limitation, a statement that:
(i) The representations, warranties and agreements of the Issuers Company and the Guarantors in Section 1 3 are true and correct on and as of the Closing Date, and the Company and the Guarantors have complied with all of their respective its agreements contained herein in all material respects and satisfied all the conditions on their its part to be performed or satisfied hereunder at or prior to the Closing Date;; and
(ii) He or she has carefully They have examined the Offering Memorandum Time of Sale Information and the Pricing Disclosure PackageOffering Memorandum, and, in his or her their opinion, (A) the Time of Sale Information, as of the Time of Sale and as of the Closing Date, and the Offering Memorandum, as of its date and on as of the Closing Date, and the Pricing Disclosure Package, as of the Time of Sale, did not and do not contain any untrue statement of a material fact and did not and do not 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, misleading and (B) since the date of such documentsthe Time of Sale Information and the Offering Memorandum, no event has occurred that which should have been set forth in a supplement or amendment to the Offering Memorandum or the Pricing Disclosure Package that has not been so set forth; and
(iii) Since the respective dates as Time of which information is given in Sale Information and the Offering Memorandum and the Pricing Disclosure Package, there has not been any development that resulted in a Material Adverse Effect or any development that could reasonably be expected to result in a Material Adverse Effect, whether or not arising in the ordinary course of businessMemorandum.
(i) Except as described in the Pricing Disclosure Package, neither the Company nor any of its subsidiaries has sustained, since the date of the latest audited financial statements included or incorporated by reference in the Pricing Disclosure Package, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, and since such date, there has not been any change in the capitalization or long-term debt of the Company or any of its subsidiaries or any adverse change, or any development involving a prospective adverse change, in or affecting the condition (financial or otherwise), results of operations, members’ equity, properties, management, business or prospects of the Company and its subsidiaries taken as a whole, in each case except as could not, in the aggregate, reasonably be expected to have a Material Adverse Effect.
(jn) Subsequent to the earlier of the Time of Sale and the execution and delivery of this Agreement (i) no downgrading shall have occurred in the rating accorded the Company’s or any of its subsidiaries’ debt securities or preferred stock by any “nationally recognized statistical rating organization,” (as that such term is defined by the Commission for purposes of Rule 436(g)(2) used in Section 15E of the Securities Exchange Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with possible negative implicationsrespect to, its rating of the Securities or of any other debt securities issued or guaranteed by the Company or any of the Company’s or any Guarantors (in each case, other than an announcement with positive implications of its subsidiaries’ debt securities or preferred stocka possible upgrading).
(ko) Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the following: (i) trading in securities generally on the New York Stock Exchange, the NYSE Amex Equities, the Nasdaq Stock Market or in the over-the-counter market The Initial Purchasers shall have been suspended or materially limited or the settlement received a counterpart of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) trading in any securities of the Company on any exchange or in the over-the-counter market shall have been suspended or materially limited, (iii) a banking moratorium shall have been declared by federal or state authorities, (iv) the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving the United States or there shall have been a declaration of a national emergency or war by the United States or (v) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the United States shall be such), as to make it, in the judgment of the Representatives, impracticable or inadvisable to proceed with the public offering or delivery of the Notes being delivered on such Closing Date on the terms and in the manner contemplated in the Offering Memorandum.
(l) At the Closing Date, the Notes shall have been designated for trading on the PORTAL Market.
(m) The Issuers and the Guarantors shall have entered into the Registration Rights Agreement and the Initial Purchasers or their counsel that shall have received been executed counterparts thereofand delivered by a duly authorized officer of the Company and each of the Guarantors.
(np) The Issuers, the Guarantors Securities shall be eligible for clearance and the Trustee settlement through DTC.
(q) The Indenture shall have been duly executed and delivered by a duly authorized officer of the IndentureCompany, and the Initial Purchasers or their counsel shall have received an executed counterpart thereof, duly executed by the Issuers, each of the Guarantors and the Trustee.
(or) The Issuers Securities and the notation of guarantees shall be executed by the Company and the Guarantors in substantially the respective forms set forth in the Indenture and the Securities shall have furnished be authenticated and delivered by the Representatives and counsel to Trustee in accordance with the Initial Purchasers with such other certificates, opinions or other documents as they may have reasonably requested.
(p) Mid Atlantic Well Service, Inc. shall have been released from its obligations as a guarantor under the Old Indenture. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in all material respects form and substance reasonably satisfactory to counsel for the Initial Purchasers.
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The respective obligations of the Initial Purchasers hereunder are subject to the accuracy, when made and on the Closing Date, of the representations and warranties of the Issuers and the Guarantors contained herein, to the performance by the Issuers and the Guarantors of their respective obligations hereunder, and to each of the following additional terms and conditions:
(a) The Initial Purchasers shall not have discovered and disclosed to the Company on or prior to the Closing Date that the Pricing Disclosure Package or the Offering Memorandum or any amendment or supplement thereto contains an untrue statement of a fact that, in the opinion of Xxxx Xxxx Xxxxxx & Xxxxxxx Xxxxx & Xxxx LLP, is material or omits to state a fact that, in the opinion of such counsel, is material and is required to be stated therein or is necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(b) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Registration Rights Agreement, the Indenture, the Securities, the Exchange Securities, the Offering Memorandum and the Pricing Disclosure Package, and all other legal matters relating to this Agreement, the Registration Rights Agreement, the Indenture, the Securities, the Exchange Securities and the transactions contemplated hereby and thereby shall be reasonably satisfactory in all material respects to counsel for the Initial Purchasers, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(c) Xxxxx & Xxxxxxxxx LLP Xxxxx L.L.P. shall have furnished to the Representatives its written opinion, as counsel to the Issuers, addressed to the Initial Purchasers and dated the Closing Date, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit B. GableGotwals, X. XxXxxx & Xxxx shall have furnished to the Representatives its written opinion, opinion as special Oklahoma counsel to the Issuers, addressed to the Initial Purchasers and dated the Closing Date, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit X. Xxxxxxxx XxxxxxC. Xxxxxxx Xxxxx, Assistant General Counsel of the Company, shall have furnished to the Representatives her written opinion, addressed to the Initial Purchasers and dated the Closing Date, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit D.
(d) The Representatives shall have received from Xxxx Xxxx Xxxxxx & Xxxxxxx Xxxxx & Xxxx LLP, counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date, with respect to the issuance and sale of the Securities, the Offering Memorandum and the Pricing Disclosure Package and other related matters as the Representatives may reasonably require, and the Issuers and the Guarantors shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(e) At the time of execution of this Agreement, the Representatives shall have received from KPMG LLP a letter, in form and substance reasonably satisfactory to the Representatives, addressed to the Initial Purchasers and dated the date hereof (i) confirming that they are independent registered public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Pricing Disclosure Package, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(f) With respect to the letter of KPMG LLP referred to in the preceding paragraph and delivered to the Representatives concurrently with the execution of this Agreement (the “initial letter”), the Company shall have furnished to the Representatives a letter (the “bring-down letter”) of such accountants, addressed to the Initial Purchasers and dated the Closing Date (i) confirming that they are independent registered public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Offering Memorandum, as of a date not more than three days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(g) At the time of execution of this AgreementAgreement and at the Closing Date, the Representatives shall have received from XxXxxxxx and XxxXxxxxxxx a an initial letter (the “initial expert letter”), in form and substance reasonably satisfactory to the Representatives, addressed to the Initial Purchasers Representatives and dated the date hereof hereof, and a subsequent letter dated as of the Closing Date, which such letter shall cover the period from any initial expert letter to the Closing Date, covering certain matters relating to information about the reserves of the Company presented in the Pricing Disclosure Package.
(h) Each Issuer and each Guarantor shall have furnished to the Representatives a certificate, dated the Closing Date, of each Issuer’s and each Guarantor’s Chief Executive Officer and its Chief Financial Officer (or, in the case of any Guarantor that does not have officers holding such positions or positions of similar authority, of the Chief Executive Officer and Chief Financial Officer of the immediate or ultimate parent of such entity on behalf of such entity) stating that each of them severally represents that:
(i) The representations, warranties and agreements of the Issuers and the Guarantors in Section 1 are true and correct on and as of the Closing Date, and the Company and the Guarantors have complied with all of their respective agreements contained herein in all material respects and satisfied all the conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) He or she Such officer has carefully examined the Offering Memorandum and the Pricing Disclosure Package, and, in his or her such officer’s opinion, (A) the Offering Memorandum, as of its date and on the Closing Date, and the Pricing Disclosure Package, as of the Time of Sale, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (B) since the date of such documents, no event has occurred that should have been set forth in a supplement or amendment to the Offering Memorandum or the Pricing Disclosure Package that has not been so set forth; and
(iii) Since the respective dates as of which information is given in the Offering Memorandum and the Pricing Disclosure Package, there has not been any development that resulted in a Material Adverse Effect or any development that could reasonably be expected to result in a Material Adverse Effect, whether or not arising in the ordinary course of business.
(i) Except as described in the Pricing Disclosure Package, neither the Company nor any of its subsidiaries Subsidiaries has sustained, since the date of the latest audited financial statements included or incorporated by reference in the Pricing Disclosure Package, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, and since such date, there has not been any change in the capitalization or long-term debt of the Company or any of its subsidiaries Subsidiaries or any adverse change, or any development involving a prospective adverse change, in or affecting the condition (financial or otherwise), results of operations, members’ equity, properties, management, business or prospects of the Company and its subsidiaries Subsidiaries taken as a whole, in each case except as could not, in the aggregate, reasonably be expected to have a Material Adverse Effect.
(j) Subsequent to the execution and delivery of this Agreement (i) no downgrading shall have occurred in the rating accorded the Company’s or any of its subsidiariesSubsidiaries’ debt securities or preferred stock by any “nationally recognized statistical rating organization” (as that term is defined by the Commission for purposes of Rule 436(g)(2) of the Securities ActAct as in effect on July 20, 2010), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company’s or any of its subsidiariesSubsidiaries’ debt securities or preferred stock.
(k) Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the following: (i) trading in securities generally on the New York Stock Exchange, the NYSE Amex Equities, the Nasdaq Stock Market or in the over-the-counter market shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) trading in any securities of the Company on any exchange or in the over-the-counter market shall have been suspended or materially limited, (iii) a banking moratorium shall have been declared by federal or state authorities, (iv) the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving the United States or there shall have been a declaration of a national emergency or war by the United States or (v) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the United States shall be such), as to make it, in the judgment of the Representatives, impracticable or inadvisable to proceed with the public offering offering, sale or delivery of the Notes being delivered on such Closing Date on the terms and in the manner contemplated in the Offering Memorandum.
(l) At the Closing Date, the Notes shall have been designated for trading on the PORTAL Market.
(m) The Issuers and the Guarantors shall have entered into the Registration Rights Agreement and the Initial Purchasers or their counsel shall have received executed counterparts thereof.
(nm) The Issuers, the Guarantors and the Trustee shall have executed and delivered the Indenture, and the Initial Purchasers or their counsel shall have received an executed counterpart thereof, duly executed by the Issuers, the Guarantors and the Trustee.
(on) The Issuers and the Guarantors shall have furnished the Representatives and counsel to the Initial Purchasers with such other certificates, opinions or other documents as they may have reasonably requested.
(p) Mid Atlantic Well Service, Inc. shall have been released from its obligations as a guarantor under the Old Indenture. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in all material respects reasonably satisfactory to counsel for the Initial Purchasers.
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The respective obligations of the Initial Purchasers hereunder are subject to the accuracy, when made and on the Closing Date, of the representations and warranties of the Issuers and the Guarantors contained herein, to the performance by the Issuers and the Guarantors of their respective obligations hereunder, and to each of the following additional terms and conditions:
(a) The Initial Purchasers shall not have discovered and disclosed to the Company on or prior to the Closing Date that the Pricing Disclosure Package or the Offering Memorandum or any amendment or supplement thereto contains an untrue statement of a fact that, in the opinion of Xxxx Xxxx Xxxxxx & Xxxxxxx Xxxxx & Xxxx LLP, is material or omits to state a fact that, in the opinion of such counsel, is material and is necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(b) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Registration Rights Agreement, the Indenture, the Securities, the Exchange Securities, the Offering Memorandum and the Pricing Disclosure Package, and all other legal matters relating to this Agreement, the Registration Rights Agreement, the Indenture, the Securities, the Exchange Securities and the transactions contemplated hereby and thereby shall be reasonably satisfactory in all material respects to counsel for the Initial Purchasers, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(c) Xxxxx & Xxxxxxxxx LLP Xxxxx L.L.P. shall have furnished to the Representatives its written opinion, as counsel to the Issuers, addressed to the Initial Purchasers and dated the Closing Date, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit B. GableGotwals, shall have furnished to the Representatives its written opinion, as special Oklahoma counsel to the Issuers, addressed to the Initial Purchasers and dated the Closing Date, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit X. C. Xxxxxxxx Xxxxxx, General Counsel of the Company, shall have furnished to the Representatives her written opinion, addressed to the Initial Purchasers and dated the Closing Date, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit D.
(d) The Representatives shall have received from Xxxx Xxxx Xxxxxx & Xxxxxxx Xxxxx & Xxxx LLP, counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date, with respect to the issuance and sale of the Securities, the Offering Memorandum and the Pricing Disclosure Package and other related matters as the Representatives may reasonably require, and the Issuers and the Guarantors shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(e) At the time of execution of this Agreement, the Representatives shall have received from KPMG LLP a letter, in form and substance satisfactory to the Representatives, addressed to the Initial Purchasers and dated the date hereof (i) confirming that they are independent registered public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Pricing Disclosure Package, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(f) With respect to the letter of KPMG LLP referred to in the preceding paragraph and delivered to the Representatives concurrently with the execution of this Agreement (the “initial letter”), the Company shall have furnished to the Representatives a letter (the “bring-down letter”) of such accountants, addressed to the Initial Purchasers and dated the Closing Date (i) confirming that they are independent registered public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Offering Memorandum, as of a date not more than three days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(g) At the time of execution of this AgreementAgreement and at the Closing Date, the Representatives shall have received from XxXxxxxx and XxxXxxxxxxx a letter, in form and substance reasonably satisfactory to the Representatives, addressed to the Initial Purchasers and dated the date hereof and the Closing Date, as applicable, covering certain matters relating to information about the reserves of the Company presented in the Pricing Disclosure Package.
(h) Each Issuer and each Guarantor shall have furnished to the Representatives a certificate, dated the Closing Date, of each Issuer’s and each Guarantor’s Chief Executive Officer and its Chief Financial Officer (or, in the case of any Guarantor that does not have officers holding such positions or positions of similar authority, of the Chief Executive Officer and Chief Financial Officer of the immediate or ultimate parent of such entity on behalf of such entity) stating that each of them severally represents that:
(i) The representations, warranties and agreements of the Issuers and the Guarantors in Section 1 are true and correct on and as of the Closing Date, and the Company and the Guarantors have complied with all of their respective agreements contained herein in all material respects and satisfied all the conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) He or she has carefully examined the Offering Memorandum and the Pricing Disclosure Package, and, in his or her opinion, (A) the Offering Memorandum, as of its date and on the Closing Date, and the Pricing Disclosure Package, as of the Time of Sale, did not and do not contain any untrue statement of a material fact and did not and do not 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, and (B) since the date of such documents, no event has occurred that should have been set forth in a supplement or amendment to the Offering Memorandum or the Pricing Disclosure Package that has not been so set forth; and
(iii) Since the respective dates as of which information is given in the Offering Memorandum and the Pricing Disclosure Package, there has not been any development that resulted in a Material Adverse Effect or any development that could reasonably be expected to result in a Material Adverse Effect, whether or not arising in the ordinary course of business.
(i) Except as described in the Pricing Disclosure Package, neither the Company nor any of its subsidiaries has sustained, since the date of the latest audited financial statements included or incorporated by reference in the Pricing Disclosure Package, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, and since such date, there has not been any change in the capitalization or long-term debt of the Company or any of its subsidiaries or any adverse change, or any development involving a prospective adverse change, in or affecting the condition (financial or otherwise), results of operations, members’ equity, properties, management, business or prospects of the Company and its subsidiaries taken as a whole, in each case except as could not, in the aggregate, reasonably be expected to have a Material Adverse Effect.
(j) Subsequent to the execution and delivery of this Agreement (i) no downgrading shall have occurred in the rating accorded the Company’s or any of its subsidiaries’ debt securities or preferred stock by any “nationally recognized statistical rating organization” (as that term is defined by the Commission for purposes of Rule 436(g)(2) of the Securities ActAct as in effect on July 20, 2010), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company’s or any of its subsidiaries’ debt securities or preferred stock.
(k) Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the following: (i) trading in securities generally on the New York Stock Exchange, the NYSE Amex Equities, the Nasdaq Stock Market or in the over-the-counter market shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) trading in any securities of the Company on any exchange or in the over-the-counter market shall have been suspended or materially limited, (iii) a banking moratorium shall have been declared by federal or state authorities, (iv) the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving the United States or there shall have been a declaration of a national emergency or war by the United States or (v) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the United States shall be such), as to make it, in the judgment of the Representatives, impracticable or inadvisable to proceed with the public offering or delivery of the Notes being delivered on such Closing Date on the terms and in the manner contemplated in the Offering Memorandum.
(l) At the Closing Date, the Notes shall have been designated for trading on the PORTAL Market.
(m) The Issuers and the Guarantors shall have entered into the Registration Rights Agreement and the Initial Purchasers or their counsel shall have received executed counterparts thereof.
(nm) The Issuers, the Guarantors and the Trustee shall have executed and delivered the Indenture, and the Initial Purchasers or their counsel shall have received an executed counterpart thereof, duly executed by the Issuers, the Guarantors and the Trustee.
(on) The Issuers and the Guarantors shall have furnished the Representatives and counsel to the Initial Purchasers with such other certificates, opinions or other documents as they may have reasonably requested.
(p) Mid Atlantic Well Service, Inc. shall have been released from its obligations as a guarantor under the Old Indenture. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in all material respects reasonably satisfactory to counsel for the Initial Purchasers.
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Conditions of Initial Purchasers’ Obligations. The respective obligations of the Initial Purchasers hereunder are subject to the accuracy, when made and on the Closing Date, of the representations and warranties of the Issuers and the Guarantors contained herein, to the performance by the Issuers and the Guarantors of their respective obligations hereunder, and to each of the following additional terms and conditions:
(a) The Initial Purchasers shall not have discovered and disclosed to the Company on or prior to the Closing Date that the Pricing Disclosure Package or the Offering Memorandum or any amendment or supplement thereto contains an untrue statement of a fact that, in the opinion of Xxxx Xxxx Xxxxxx & Xxxxxxx Xxxxx & Xxxx LLP, is material or omits to state a fact that, in the opinion of such counsel, is material and is necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(b) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Registration Rights Agreement, the Indenture, the Securities, the Exchange Securities, the Offering Memorandum and the Pricing Disclosure Package, and all other legal matters relating to this Agreement, the Registration Rights Agreement, the Indenture, the Securities, the Exchange Securities and the transactions contemplated hereby and thereby shall be reasonably satisfactory in all material respects to counsel for the Initial Purchasers, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(c) Xxxxx & Xxxxxxxxx LLP Xxxxx L.L.P. shall have furnished to the Representatives its written opinion, as counsel to the Issuers, addressed to the Initial Purchasers and dated the Closing Date, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit B. GableGotwals, shall have furnished to the Representatives its written opinion, as special Oklahoma counsel to the Issuers, addressed to the Initial Purchasers and dated the Closing Date, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit X. C. Xxxxxxxx Xxxxxx, General Counsel of the Company, shall have furnished to the Representatives her written opinion, addressed to the Initial Purchasers and dated the Closing Date, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit D.
(d) The Representatives shall have received from Xxxx Xxxx Xxxxxx & Xxxxxxx Xxxxx & Xxxx LLP, counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date, with respect to the issuance and sale of the Securities, the Offering Memorandum and the Pricing Disclosure Package and other related matters as the Representatives may reasonably require, and the Issuers and the Guarantors shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(e) At the time of execution of this Agreement, the Representatives shall have received from KPMG LLP a letter, in form and substance satisfactory to the Representatives, addressed to the Initial Purchasers and dated the date hereof (i) confirming that they are independent registered public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Pricing Disclosure Package, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(f) With respect to the letter of KPMG LLP referred to in the preceding paragraph and delivered to the Representatives concurrently with the execution of this Agreement (the “initial letter”), the Company shall have furnished to the Representatives a letter (the “bring-down letter”) of such accountants, addressed to the Initial Purchasers and dated the Closing Date (i) confirming that they are independent registered public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Offering Memorandum, as of a date not more than three days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(g) At the time of execution of this AgreementAgreement and at the Closing Date, the Representatives shall have received from XxXxxxxx and XxxXxxxxxxx a letter, in form and substance reasonably satisfactory to the Representatives, addressed to the Initial Purchasers and dated the date hereof covering certain matters relating to information about the reserves of the Company presented in the Pricing Disclosure Package.
(h) Each Issuer and each Guarantor shall have furnished to the Representatives a certificate, dated the Closing Date, of each Issuer’s and each Guarantor’s Chief Executive Officer and its Chief Financial Officer (or, in the case of any Guarantor that does not have officers holding such positions or positions of similar authority, of the Chief Executive Officer and Chief Financial Officer of the immediate or ultimate parent of such entity on behalf of such entity) stating that each of them severally represents that:
(i) The representations, warranties and agreements of the Issuers and the Guarantors in Section 1 are true and correct on and as of the Closing Date, and the Company and the Guarantors have complied with all of their respective agreements contained herein in all material respects and satisfied all the conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) He or she has carefully examined the Offering Memorandum and the Pricing Disclosure Package, and, in his or her opinion, (A) the Offering Memorandum, as of its date and on the Closing Date, and the Pricing Disclosure Package, as of the Time of Sale, did not and do not contain any untrue statement of a material fact and did not and do not 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, and (B) since the date of such documents, no event has occurred that should have been set forth in a supplement or amendment to the Offering Memorandum or the Pricing Disclosure Package that has not been so set forth; and
(iii) Since the respective dates as of which information is given in the Offering Memorandum and the Pricing Disclosure Package, there has not been any development that resulted in a Material Adverse Effect or any development that could reasonably be expected to result in a Material Adverse Effect, whether or not arising in the ordinary course of business.
(i) Except as described in the Pricing Disclosure Package, neither the Company nor any of its subsidiaries has sustained, since the date of the latest audited financial statements included or incorporated by reference in the Pricing Disclosure Package, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, and since such date, there has not been any change in the capitalization or long-term debt of the Company or any of its subsidiaries or any adverse change, or any development involving a prospective adverse change, in or affecting the condition (financial or otherwise), results of operations, members’ equity, properties, management, business or prospects of the Company and its subsidiaries taken as a whole, in each case except as could not, in the aggregate, reasonably be expected to have a Material Adverse Effect.
(j) Subsequent to the execution and delivery of this Agreement (i) no downgrading shall have occurred in the rating accorded the Company’s or any of its subsidiaries’ debt securities or preferred stock by any “nationally recognized statistical rating organization” (as that term is defined by the Commission for purposes of Rule 436(g)(2) of the Securities Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company’s or any of its subsidiaries’ debt securities or preferred stock.
(k) Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the following: (i) trading in securities generally on the New York Stock Exchange, the NYSE Amex Equities, the Nasdaq Stock Market or in the over-the-counter market shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) trading in any securities of the Company on any exchange or in the over-the-counter market shall have been suspended or materially limited, (iii) a banking moratorium shall have been declared by federal or state authorities, (iv) the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving the United States or there shall have been a declaration of a national emergency or war by the United States or (v) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the United States shall be such), as to make it, in the judgment of the Representatives, impracticable or inadvisable to proceed with the public offering or delivery of the Notes being delivered on such Closing Date on the terms and in the manner contemplated in the Offering Memorandum.
(l) At the Closing Date, the Notes shall have been designated for trading on the PORTAL Market.
(m) The Issuers and the Guarantors shall have entered into the Registration Rights Agreement and the Initial Purchasers or their counsel shall have received executed counterparts thereof.
(n) The Issuers, the Guarantors and the Trustee shall have executed and delivered the Indenture, and the Initial Purchasers or their counsel shall have received an executed counterpart thereof, duly executed by the Issuers, the Guarantors and the Trustee.
(o) The Issuers and the Guarantors shall have furnished the Representatives and counsel to the Initial Purchasers with such other certificates, opinions or other documents as they may have reasonably requested.
(p) Mid Atlantic Well Service, Inc. shall have been released from its obligations as a guarantor under the Old Indenture. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in all material respects reasonably satisfactory to counsel for the Initial Purchasers.
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