Conditions to the Initial Purchasers’ Obligations. The obligations of the several Initial Purchasers hereunder are subject to the accuracy of the representations and warranties of the Company and the Notes Guarantor contained herein or in certificates of any officer of the Company or any of its subsidiaries, to the performance by the Company and Notes Guarantor of their respective covenants and other obligations hereunder, and to the following further conditions: (a) At the Closing Time, the Representatives shall have received (i) the favorable opinion, dated the Closing Time, of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, U.S. counsel for the Company, to the effect set forth in Exhibit A-1 hereto, (ii) the favorable opinion, dated the Closing Time, of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, internal counsel of the Company, to the effect set forth in Exhibit A-2 hereto, and (iii) the favorable opinion of ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, Canadian counsel for the Company, to the effect set forth in Exhibit A-3 hereto and any additional local counsel required to give favorable opinions in each jurisdiction of Canada where sales occur, in each case in form and substance reasonably satisfactory to counsel for the Initial Purchasers, together with signed or reproduced copies of such letter for each of the other Initial Purchasers and to such further effect as counsel to the Initial Purchasers may reasonably request. In giving such opinions such counsel or the internal counsel of the Company may rely upon the opinions of counsel reasonably satisfactory to counsel for the Initial Purchasers. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers and other representatives of the Company and its subsidiaries and certificates of public officials. (b) At the Closing Time, the Representatives shall have received the favorable opinion, dated the Closing Time, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., U.S. counsel for the Initial Purchasers and Torys LLP, Canadian counsel for the Initial Purchasers and any additional local counsel required to give favorable opinions in each jurisdiction of Canada where sales occur, together with signed or reproduced copies of such letter for each of the other Initial Purchasers in form and substance reasonably satisfactory to the Representatives. In giving its opinion ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P. may rely, as to all matters governed by the laws of jurisdictions other than the law of the State of New York, the General Corporation Law of the State of Delaware and the federal securities laws of the United States, upon the opinions of counsel reasonably satisfactory to the Representatives. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers and other representatives of the Company and its subsidiaries and certificates of public officials. (c) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the General Disclosure Package or the Final Offering Memorandum, a Material Adverse Effect, and the Representatives shall have received a certificate of the Chief Executive Officer and Chief Financial Officer of the Company, dated the Closing Time, to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Time and that the Company has complied in all material respects with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Time. The officers signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened. (d) At the time of the execution of this Agreement, the Representatives shall have received letters from each of Ernst & Young LLP, PricewaterhouseCoopers LLP and KPMG LLP, dated such date, in form and substance reasonably satisfactory to the Representatives, together with signed or reproduced copies of such letters for each of the other Initial Purchasers containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Offering Memorandum. (e) At the Closing Time, the Representatives shall have received a letter from ▇▇▇▇▇ & Young LLP, PricewaterhouseCoopers LLP and KPMG LLP, dated as of the Closing Time, to the effect that they reaffirm the statements made in their respective letters furnished pursuant to subsection (d) of this Section, except that the specified date referred to shall be a date not more than three business days prior to the Closing Time. (f) The “lock-up” agreements, each substantially in the form of Exhibit B hereto, addressed to the Representatives and signed by certain shareholders, officers and directors of the Company listed on Schedule F hereto relating to sales and certain other dispositions of Common Stock or certain other securities, shall have been delivered to the Representatives on or before the date hereof, and shall be in full force and effect at the Closing Time. (g) At the Closing Time, the Conversion Shares shall have been approved for listing on Nasdaq, subject only to official notice of issuance, and conditionally approved for listing on the TSX, subject to satisfaction of customary TSX listing requirements. (h) In the event that the Initial Purchasers exercise their option provided in Section 2(b) hereof to purchase all or any portion of the Optional Securities, the representations and warranties of the Company contained herein and the statements in any certificates furnished by the Company and any of its subsidiaries hereunder shall be true and correct as of each Date of Delivery and, at the relevant Date of Delivery, the Representatives shall have received: (i) If requested by the Representatives, the favorable opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Company, and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, internal counsel of the Company, in each case in form and substance reasonably satisfactory to counsel for the Initial Purchasers, dated such Date of Delivery, relating to the Optional Securities to be purchased on such Date of Delivery and otherwise to the same effect as the opinion required by Section 5(a) hereof. (ii) If requested by the Representatives, the favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Initial Purchasers, dated such Date of Delivery, relating to the Optional Securities to be purchased on such Date of Delivery and otherwise to the same effect as the opinion required by Section 5(b) hereof. (iii) A certificate, dated such Date of Delivery, of the Chief Executive Officer and Chief Financial Officer of the Company, to the same effect as the certificate required by Section 5(c) hereof. (iv) If requested by the Representatives, letters from each of Ernst & Young LLP, PricewaterhouseCoopers LLP and KPMG LLP, in form and substance reasonably satisfactory to the Representatives and dated such Date of Delivery, substantially in the same form and substance as the letters furnished to the Representatives pursuant to Section 5(e) hereof, except that the “specified date” in the letters furnished pursuant to this paragraph shall be a date not more than three business days prior to such Date of Delivery. (i) At the Closing Time and at each Date of Delivery (if any), counsel for the Initial Purchasers shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Securities as herein contemplated, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company and Notes Guarantor in connection with the issuance and sale of the Securities as herein contemplated shall be reasonably satisfactory in form and substance to the Representatives and counsel for the Initial Purchasers. (j) If any condition specified in this Section 5 shall not have been fulfilled when and as required to be fulfilled, this Agreement, or, in the case of any condition to the purchase of Optional Securities on a Date of Delivery which is after the Closing Time, the obligations of the several Initial Purchasers to purchase the relevant Optional Securities, may be terminated by the Representatives by notice to the Company at any time at or prior to Closing Time or such Date of Delivery, as the case may be, and such termination shall be without liability of any party to any other party except as provided in Section 4 and except that Sections 1, 7, 8, 9, 14, 15, 16, and 17 shall survive any such termination and remain in full force and effect.
Appears in 1 contract
Conditions to the Initial Purchasers’ Obligations. The obligations of the several Initial Purchasers hereunder are subject to the accuracy of the representations and warranties of the Company and the Notes Guarantor contained herein or in certificates of any officer of the Company or any of its subsidiaries, to the performance by the Company and Notes Guarantor of their respective covenants and other obligations hereunder, and to the following further conditions:
(a) For the period from and after the execution of this Agreement and prior to the Closing Time there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the Subsidiaries or any of their securities or indebtedness by any “nationally recognized statistical rating organization” as such term is defined for purposes of Rule 3(a)(62) under the Exchange Act.
(b) At the Closing Time, the Representatives Representative shall have received (i) the favorable opinion, dated the Closing Time, of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, U.S. counsel for the Company, to the effect set forth in Exhibit A-1 hereto, (ii) the favorable opinion, dated the Closing Time, of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, internal counsel of the Company, to the effect set forth in Exhibit A-2 hereto, and (iii) the favorable opinion of ▇▇▇▇▇Blake, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, Canadian counsel for the Company, to the effect set forth in Exhibit A-3 hereto and any additional local counsel required to give favorable opinions in each jurisdiction of Canada where sales occur, in each case in form and substance reasonably satisfactory to counsel for the Initial Purchasers, together with signed or reproduced copies of such letter for each of the other Initial Purchasers and to such further effect as counsel to the Initial Purchasers may reasonably request. In giving such opinions such counsel or the internal counsel of the Company may rely upon the opinions of counsel reasonably satisfactory to counsel for the Initial Purchasers. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers and other representatives of the Company and its subsidiaries and certificates of public officials.
(bc) At the Closing Time, the Representatives Representative shall have received the favorable opinion, dated the Closing Time, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., U.S. counsel for the Initial Purchasers and Torys LLP, Canadian counsel for the Initial Purchasers and any additional local counsel required to give favorable opinions in each jurisdiction of Canada where sales occur, together with signed or reproduced copies of such letter for each of the other Initial Purchasers in form and substance reasonably satisfactory to the RepresentativesRepresentative. In giving its opinion ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P. may rely, as to all matters governed by the laws of jurisdictions other than the law of the State of New York, the General Corporation Law of the State of Delaware and the federal securities laws of the United States, upon the opinions of counsel reasonably satisfactory to the RepresentativesRepresentative. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers and other representatives of the Company and its subsidiaries and certificates of public officials.
(cd) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the General Disclosure Package or the Final Offering Memorandum, a Material Adverse Effect, and the Representatives Representative shall have received a certificate of the Chief Executive Officer and Chief Financial Officer of the CompanyCompany and the Notes Guarantor, dated the Closing Time, to the effect that the representations and warranties of the Company and the Notes Guarantor contained in this Agreement are true and correct as of the Closing Time and that the Company has and the Notes Guarantor have complied in all material respects with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Time. The officers signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(de) At the time of the execution of this Agreement, the Representatives Representative shall have received letters from each of Ernst & Young LLP, PricewaterhouseCoopers LLP and KPMG LLP, dated such date, in form and substance reasonably satisfactory to the RepresentativesRepresentative, together with signed or reproduced copies of such letters for each of the other Initial Purchasers containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Offering Memorandum.
(ef) At the Closing Time, the Representatives Representative shall have received a letter from ▇▇▇▇▇ Ernst & Young LLP, PricewaterhouseCoopers LLP and KPMG LLP, dated as of the Closing Time, to the effect that they reaffirm the statements made in their respective letters furnished pursuant to subsection (d(d) of this Section, except that the specified date referred to shall be a date not more than three business days prior to the Closing Time.
(f) The “lock-up” agreements, each substantially in the form of Exhibit B hereto, addressed to the Representatives and signed by certain shareholders, officers and directors of the Company listed on Schedule F hereto relating to sales and certain other dispositions of Common Stock or certain other securities, shall have been delivered to the Representatives on or before the date hereof, and shall be in full force and effect at the Closing Time.
(g) At the Closing Time, the Conversion Shares shall have been approved for listing on Nasdaq, subject only to official notice of issuance, and conditionally approved for listing on the TSX, subject to satisfaction of customary TSX listing requirements.
(h) In the event that the Initial Purchasers exercise their option provided in Section 2(b) hereof to purchase all or any portion of the Optional Securities, the representations and warranties of the Company contained herein and the statements in any certificates furnished by the Company and any of its subsidiaries hereunder shall be true and correct as of each Date of Delivery and, at the relevant Date of Delivery, the Representatives shall have received:
(i) If requested by the Representatives, the favorable opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Company, and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, internal counsel of the Company, in each case in form and substance reasonably satisfactory to counsel for the Initial Purchasers, dated such Date of Delivery, relating to the Optional Securities to be purchased on such Date of Delivery and otherwise to the same effect as the opinion required by Section 5(a) hereof.
(ii) If requested by the Representatives, the favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Initial Purchasers, dated such Date of Delivery, relating to the Optional Securities to be purchased on such Date of Delivery and otherwise to the same effect as the opinion required by Section 5(b) hereof.
(iii) A certificate, dated such Date of Delivery, of the Chief Executive Officer and Chief Financial Officer of the Company, to the same effect as the certificate required by Section 5(c) hereof.
(iv) If requested by the Representatives, letters from each of Ernst & Young LLP, PricewaterhouseCoopers LLP and KPMG LLP, in form and substance reasonably satisfactory to the Representatives and dated such Date of Delivery, substantially in the same form and substance as the letters furnished to the Representatives pursuant to Section 5(e) hereof, except that the “specified date” in the letters furnished pursuant to this paragraph shall be a date not more than three business days prior to such Date of Delivery.
(i) At the Closing Time and at each Date of Delivery (if any), counsel for the Initial Purchasers shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Securities as herein contemplated, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company and Notes Guarantor in connection with the issuance and sale of the Securities as herein contemplated shall be reasonably satisfactory in form and substance to the Representatives Representative and counsel for the Initial Purchasers.
(jh) If any condition specified in this Section 5 shall not have been fulfilled when and as required to be fulfilled, this Agreement, or, in the case of any condition to the purchase of Optional Securities on a Date of Delivery which is after the Closing Time, the obligations of the several Initial Purchasers to purchase the relevant Optional Securities, Agreement may be terminated by the Representatives Representative by notice to the Company at any time at or prior to the Closing Time or such Date of Delivery, as the case may beTime, and such termination shall be without liability of any party to any other party except as provided in Section 4 4 and except that Sections 11, 77, 88, 99, 1414, 1515, 1616, and 17 17 shall survive any such termination and remain in full force and effect.
Appears in 1 contract
Conditions to the Initial Purchasers’ Obligations. The obligations of the several Initial Purchasers hereunder are subject to the accuracy accuracy, when made and on the Closing Date, of the representations and warranties of the Company and the Notes Guarantor contained herein or in certificates of any officer of the Company or any of its subsidiariesherein, to the performance by the Company and Notes Guarantor of their its respective covenants and other obligations hereunder, and to each of the following further additional terms and conditions:
(a) At No Initial Purchaser shall have discovered and disclosed to the Company on or prior to the Closing TimeDate that the Memorandum or any amendment or supplement thereto contains any untrue statement of a fact which, in the Representatives shall have received (i) the favorable opinion, dated the Closing Time, opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP▇, U.S. counsel for the CompanyInitial Purchasers, is material or omits to state any fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(b) All corporate proceedings and other legal matters incident to the effect set forth authorization, form and validity of this Agreement, the Indenture, the Notes, the Memorandum, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in Exhibit A-1 heretoall 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.
(iic) the favorable opinion, dated the Closing Time, of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, internal counsel of the CompanyWeiss, to the effect set forth in Exhibit A-2 hereto, and (iii) the favorable opinion of ▇▇▇▇▇Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLPshall have furnished to the Initial Purchasers their written opinion, Canadian as counsel for to the Company, addressed to the Initial Purchasers and dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers, to the effect set forth in Exhibit A-3 A hereto and any additional local counsel required to give favorable opinions in each jurisdiction of Canada where sales occur, in each case in form and substance reasonably satisfactory to counsel for the Initial Purchasers, together with signed or reproduced copies of such letter for each of the other Initial Purchasers and to such further effect as counsel to the Initial Purchasers may reasonably request. In giving such opinions such counsel .
(d) You shall have received on the Closing Date a letter, dated the date hereof and the Closing Date, as the case may be, in form and substance satisfactory to you, from KPMG LLP, independent public accountants, containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information, including the financial information contained or incorporated by reference in the internal counsel Memorandum as identified by you, including, without limitation, its written opinion to the effect that commencing with its taxable year ended December 31, 1996, the Company has been organized and operated in a manner that has enabled it to qualify as a REIT under Sections 856 through 860 of the Code, and that the Company's proposed method of operation will enable it to continue to so qualify.
(e) The Company shall have furnished to the Initial Purchasers a certificate, dated the Closing Date, of the Chairman of the Board, President or a Vice President of the Company may rely upon and the opinions Treasurer or Chief Financial Officer stating that:
(i) The representations, warranties and agreements of counsel reasonably satisfactory the Company in Section 1 are true and correct in all material respects as of the Closing Date and the Company has complied with all its agreements contained herein; and
(ii) They have carefully examined the Memorandum and, in their opinion (A) the Memorandum, as of its date, did not include any untrue statement of a material fact and did not omit to counsel for state any material fact necessary to make the Initial Purchasers. Such counsel may also state thatstatements therein, insofar as such opinion involves factual mattersin the light of the circumstances under which they were made, they not misleading, and (B) since the date of the Memorandum no event has occurred which should have relied, been set forth in a supplement or amendment to the extent they deem properMemorandum.
(i) Neither the Company nor any of its subsidiaries shall have sustained since the date of the latest audited financial statements included or incorporated by reference in the Memorandum any loss or interference with its business from fire, upon certificates explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Memorandum or since such date there shall not have been any change in the capital stock or long-term debt of officers and other representatives the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders' equity or results of operations of the Company and its subsidiaries taken as a whole, otherwise than as set forth or contemplated in the Memorandum, the effect of which, in any such case described in clause (i) or (ii), is, in the judgment of the Initial Purchasers, so material and certificates adverse as to make it impracticable or inadvisable to proceed with the offering or the delivery of public officialsthe Notes on the terms and in the manner contemplated in the Memorandum.
(bg) At Subsequent to the Closing Timeexecution and delivery of this Agreement no downgrading shall have occurred in the rating accorded the Notes by any "nationally recognized statistical rating organization", as that term is defined by the Representatives Commission for purposes of Rule 436(g)(2) of the Rules and Regulations and no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Notes.
(h) The Initial Purchasers shall have received the favorable opinionRegistration Rights Agreement in the form substantially identical to the Registration Rights Agreement dated August 14, dated 1997 executed by the Closing Time, of Company.
(i) The Initial Purchasers shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P.▇▇▇, U.S. counsel for the Initial Purchasers and Torys LLPPurchasers, Canadian counsel for the Initial Purchasers and any additional local counsel required to give favorable opinions in each jurisdiction of Canada where sales occur, together with signed or reproduced copies of such letter for each of the other Initial Purchasers in form and substance reasonably satisfactory to the Representatives. In giving its opinion ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P. may rely, as to all matters governed by the laws of jurisdictions other than the law of the State of New York, the General Corporation Law of the State of Delaware and the federal securities laws of the United States, upon the opinions of counsel reasonably satisfactory to the Representatives. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers and other representatives of the Company and its subsidiaries and certificates of public officials.
(c) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the General Disclosure Package or the Final Offering Memorandum, a Material Adverse Effect, and the Representatives shall have received a certificate of the Chief Executive Officer and Chief Financial Officer of the Companyopinions, dated the Closing TimeDate, with respect to such matters as the effect that the representations Initial Purchasers may reasonably require, and warranties of the Company contained shall have furnished to such counsel such documents and information as they may reasonably request for the purpose of enabling them to pass upon such matters. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement are true and correct as of the Closing Time and that the Company has complied in all material respects with all of the agreements and satisfied all of the conditions on its part shall be deemed to be performed or satisfied hereunder on or before in compliance with the Closing Time. The officers signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(d) At the time of the execution of this Agreement, the Representatives shall have received letters from each of Ernst & Young LLP, PricewaterhouseCoopers LLP and KPMG LLP, dated such date, in form and substance reasonably satisfactory to the Representatives, together with signed or reproduced copies of such letters for each of the other Initial Purchasers containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Offering Memorandum.
(e) At the Closing Time, the Representatives shall have received a letter from ▇▇▇▇▇ & Young LLP, PricewaterhouseCoopers LLP and KPMG LLP, dated as of the Closing Time, to the effect that provisions hereof only if they reaffirm the statements made in their respective letters furnished pursuant to subsection (d) of this Section, except that the specified date referred to shall be a date not more than three business days prior to the Closing Time.
(f) The “lock-up” agreements, each substantially in the form of Exhibit B hereto, addressed to the Representatives and signed by certain shareholders, officers and directors of the Company listed on Schedule F hereto relating to sales and certain other dispositions of Common Stock or certain other securities, shall have been delivered to the Representatives on or before the date hereof, and shall be in full force and effect at the Closing Time.
(g) At the Closing Time, the Conversion Shares shall have been approved for listing on Nasdaq, subject only to official notice of issuance, and conditionally approved for listing on the TSX, subject to satisfaction of customary TSX listing requirements.
(h) In the event that the Initial Purchasers exercise their option provided in Section 2(b) hereof to purchase all or any portion of the Optional Securities, the representations and warranties of the Company contained herein and the statements in any certificates furnished by the Company and any of its subsidiaries hereunder shall be true and correct as of each Date of Delivery and, at the relevant Date of Delivery, the Representatives shall have received:
(i) If requested by the Representatives, the favorable opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Company, and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, internal counsel of the Company, in each case are in form and substance reasonably satisfactory to counsel for the Initial Purchasers, dated such Date of Delivery, relating to the Optional Securities to be purchased on such Date of Delivery and otherwise to the same effect as the opinion required by Section 5(a) hereof.
(ii) If requested by the Representatives, the favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Initial Purchasers, dated such Date of Delivery, relating to the Optional Securities to be purchased on such Date of Delivery and otherwise to the same effect as the opinion required by Section 5(b) hereof.
(iii) A certificate, dated such Date of Delivery, of the Chief Executive Officer and Chief Financial Officer of the Company, to the same effect as the certificate required by Section 5(c) hereof.
(iv) If requested by the Representatives, letters from each of Ernst & Young LLP, PricewaterhouseCoopers LLP and KPMG LLP, in form and substance reasonably satisfactory to the Representatives and dated such Date of Delivery, substantially in the same form and substance as the letters furnished to the Representatives pursuant to Section 5(e) hereof, except that the “specified date” in the letters furnished pursuant to this paragraph shall be a date not more than three business days prior to such Date of Delivery.
(i) At the Closing Time and at each Date of Delivery (if any), counsel for the Initial Purchasers shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Securities as herein contemplated, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company and Notes Guarantor in connection with the issuance and sale of the Securities as herein contemplated shall be reasonably satisfactory in form and substance to the Representatives and counsel for the Initial Purchasers.
(j) If any condition specified in this Section 5 shall not have been fulfilled when and as required to be fulfilled, this Agreement, or, in the case of any condition to the purchase of Optional Securities on a Date of Delivery which is after the Closing Time, the obligations of the several Initial Purchasers to purchase the relevant Optional Securities, may be terminated by the Representatives by notice to the Company at any time at or prior to Closing Time or such Date of Delivery, as the case may be, and such termination shall be without liability of any party to any other party except as provided in Section 4 and except that Sections 1, 7, 8, 9, 14, 15, 16, and 17 shall survive any such termination and remain in full force and effect.
Appears in 1 contract