IN SUBSECTION (B)(II) OF
THIS SECTION 5, AND FURTHER TO THE EFFECT THAT:
(I)
FOR THE PERIOD FROM AND AFTER THE DATE OF THIS AGREEMENT AND
PRIOR TO SUCH CLOSING DATE THERE HAS NOT OCCURRED ANY MATERIAL ADVERSE CHANGE;
(II)
THE REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY SET
FORTH IN SECTION 1 OF THIS AGREEMENT ARE TRUE AND CORRECT WITH THE SAME FORCE
AND EFFECT AS THOUGH EXPRESSLY MADE ON AND AS OF SUCH CLOSING DATE; AND
(III)
THE COMPANY HAS COMPLIED WITH ALL THE AGREEMENTS HEREUNDER AND
SATISFIED ALL THE CONDITIONS ON ITS PART TO BE PERFORMED OR SATISFIED HEREUNDER
AT OR PRIOR TO SUCH CLOSING DATE.
(F)
BRING-DOWN COMFORT LETTER.
ON EACH OF THE CLOSING DATE AND THE OPTION
CLOSING DATE, IF APPLICABLE, THE INITIAL PURCHASER SHALL HAVE RECEIVED FROM KPMG
LLP, INDEPENDENT REGISTERED PUBLIC ACCOUNTANTS FOR THE COMPANY, A LETTER DATED
SUCH DATE, IN FORM AND SUBSTANCE SATISFACTORY TO THE INITIAL PURCHASER, TO THE
EFFECT THAT THEY REAFFIRM THE STATEMENTS MADE IN THE LETTER FURNISHED BY THEM
PURSUANT TO SUBSECTION (A) OF THIS SECTION 5, EXCEPT THAT THE SPECIFIED DATE
REFERRED TO THEREIN FOR THE CARRYING OUT OF PROCEDURES SHALL BE NO MORE THAN
THREE BUSINESS DAYS PRIOR TO THE CLOSING DATE OR OPTION CLOSING DATE, AS THE
CASE MAY BE.
(G)
REGISTRATION RIGHTS AGREEMENT.
THE COMPANY AND THE INITIAL PURCHASER SHALL
HAVE EXECUTED AND DELIVERED THE REGISTRATION RIGHTS AGREEMENT (IN FORM AND
SUBSTANCE SATISFACTORY TO THE INITIAL PURCHASER), AND THE REGISTRATION RIGHTS
AGREEMENT SHALL BE IN FULL FORCE AND EFFECT.
(H)
PORTAL DESIGNATION.
THE NOTES SHALL HAVE BEEN DESIGNATED PORTAL-ELIGIBLE
SECURITIES IN ACCORDANCE WITH THE RULES AND REGULATIONS OF THE NATIONAL
ASSOCIATION OF SECURITIES DEALERS, INC.
(I)
ADDITIONAL DOCUMENTS.
ON OR BEFORE EACH OF THE CLOSING DATE AND THE OPTION
CLOSING DATE, IF APPLICABLE, THE INITIAL PURCHASER AND COUNSEL FOR THE INITIAL
PURCHASER SHALL HAVE RECEIVED SUCH INFORMATION, DOCUMENTS AND OPINIONS AS THEY
MAY REASONABLY REQUIRE FOR THE PURPOSES OF ENABLING THEM TO PASS UPON THE
ISSUANCE AND SALE OF THE NOTES AS CONTEMPLATED HEREIN, OR IN ORDER TO EVIDENCE
THE ACCURACY OF ANY OF THE REPRESENTATIONS AND WARRANTIES, OR THE SATISFACTION
OF ANY OF THE CONDITIONS OR AGREEMENTS, HEREIN CONTAINED.
If any condition specified in this Section 5 is not satisfied when and as
required to be satisfied, this Agreement may be terminated by the Initial
Purchaser by notice to the Company at any time on or prior to the Closing Date
and, with respect to the Optional Notes, at any time prior to the Option Closing
Date, which termination shall be without liability on the part of any party to
any other party, except that Section 4, Section 7 Section 8, Section
9, Section
11 and Section
12 shall at all times be effective and shall survive such
termination.
13
SECTION 6.
REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF INITIAL PURCHASER.
THE INITIAL PURCHASER REPRESENTS AND WARRANTS THAT IT IS A "QUALIFIED
INSTITUTIONAL BUYER", AS DEFINED IN RULE 144A (A "QIB").
THE INITIAL PURCHASER