Exchange Notes Indenture. (a) Not later than 10 days following receipt by the Borrower of the first Exchange Request pursuant to Section 11.02, the Exchange Notes Indenture shall be fully executed and delivered and the Exchange Notes will be fully executed and deposited into escrow. (b) In connection with the execution of the Exchange Notes Indenture, the Exchange Notes Issuer shall furnish: (i) an opinion from counsels to the Exchange Notes Issuer in form and substance satisfactory to the Exchange Note Administrative Agent (acting reasonably), stating that, upon issuance of Exchange Notes in consideration for an equal principal amount of the Term Loan, the Exchange Notes Indenture constitutes a legal, valid and binding obligation of the Exchange Notes Issuer and Guarantors, enforceable against each of the Exchange Notes Issuer and Guarantors in accordance with its terms, and (ii) opinions from legal counsels in form and substance satisfactory to the Exchange Note Administrative Agent (acting reasonably), stating that the Exchange Notes Issuer and Guarantors have due authorization to enter into such Exchange Notes Indenture. (c) The Exchange Notes Issuer shall select a bank or trust company reasonably acceptable to the Arrangers to act as Exchange Note Administrative Agent (the “Exchange Note Administrative Agent”). The Exchange Note Administrative Agent shall at all times be a bank or trust company organized and doing business under the laws of the United States or of any State or the District of Columbia and having a combined capital and surplus of not less than $50,000,000 which is authorized under the laws of its jurisdiction of incorporation to exercise corporate trust powers and is subject to supervision or examination by Federal, State or District of Columbia authority and which has an office or agency in New York, New York. (d) The Borrower shall, and shall cause the Exchange Notes Issuer to, if requested by one or more of the Arrangers following an Exchange Request delivered pursuant to Section 11.03, (i) promptly prepare an offering memorandum with respect to the Exchange Notes in a form customary for offerings under Rule 144A (including all financial statements and other information that would be required in a registration statement on Form 20-F for an offering registered under the Securities Act for a foreign private issuer, which, for the avoidance of doubt, need not include financial statements or information required by Rule 3-05, 3-09, 3-10 or 3-16 of Regulation S-X, Compensation Discussion and Analysis required by Regulation S-K Item 402(b) or other information or financial data customarily excluded from a Rule 144A offering memorandum) and update such offering memorandum from time to time prior to the Exchange to reflect material changes or developments with respect to the Borrower, the Exchange Notes Issuer and their respective Subsidiaries, (ii) cause counsel to the Exchange Notes Issuer to deliver to the Arrangers executed legal opinions in form and substance customary for a transaction of that type to be mutually agreed upon by the Exchange Notes Issuer and Arrangers (including, without limitation, with respect to due authorization, execution and delivery; validity; and enforceability of the Exchange Notes Indenture) and a customary 10b-5 letter with respect to any offering memorandum pursuant to clause (i) above and cause the independent registered public accountants of the Exchange Notes Issuer to deliver drafts of “comfort letters” that include customary “negative assurances” (which drafts such accountants are prepared to issue in final form upon completion of customary procedures) and use commercially reasonable efforts to cause such accountants to render such “comfort letters” in each case with respect to the financial information in such offering memorandum, (iii) use commercially reasonable efforts to obtain public ratings for the Exchange Notes from each of ▇▇▇▇▇’▇ and S&P and (iv) take all such other actions and prepare and/or execute all such other documentations as one or more of Arrangers shall reasonably request.
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Exchange Notes Indenture. (a) Not later than 10 days following receipt by the Borrower of the first Exchange Request pursuant to Section 11.02, the Exchange Notes Indenture shall be fully executed and delivered and the Exchange Notes will be fully executed and deposited into escrow.
(b) In connection with the execution of the Exchange Notes Indenture, the Exchange Notes Issuer shall furnish:
(i) an opinion from counsels to the Exchange Notes Issuer in form and substance satisfactory to the Exchange Note Administrative Agent (acting reasonably), stating that, upon issuance of Exchange Notes in consideration for an equal principal amount of the Term Loan, the Exchange Notes Indenture constitutes a legal, valid and binding obligation of the Exchange Notes Issuer and Guarantors, enforceable against each of the Exchange Notes Issuer and Guarantors in accordance with its terms, and
(ii) opinions from legal counsels in form and substance satisfactory to the Exchange Note Administrative Agent (acting reasonably), stating that the Exchange Notes Issuer and Guarantors have due authorization to enter into such Exchange Notes Indenture.
(c) The Exchange Notes Issuer shall select a bank or trust company reasonably acceptable to the Arrangers to act as Exchange Note Administrative Agent (the “Exchange Note Administrative Agent”). The Exchange Note Administrative Agent shall at all times be a bank or trust company organized and doing business under the laws of the United States or of any State or the District of Columbia and having a combined capital and surplus of not less than $50,000,000 which is authorized under the laws of its jurisdiction of incorporation to exercise corporate trust powers and is subject to supervision or examination by Federal, State or District of Columbia authority and which has an office or agency in New York, New York.
(d) The Borrower shall, and shall cause the Exchange Notes Issuer to, if requested by one or more of the Arrangers following an Exchange Request delivered pursuant to Section 11.03, (i) promptly prepare an offering memorandum with respect to the Exchange Notes in a form customary for offerings under Rule 144A (including all financial statements and other information that would be required in a registration statement on Form 20-F for an offering registered under the Securities Act for a foreign private issuer, which, for the avoidance of doubt, need not include financial statements or information required by Rule 3-05, 3-09, 3-10 or 3-16 of Regulation S-X, Compensation Discussion and Analysis required by Regulation S-K Item 402(b) or other information or financial data customarily excluded from a Rule 144A offering memorandum) and update such offering memorandum from time to time prior to the Exchange to reflect material changes or developments with respect to the Borrower, the Exchange Notes Issuer and their respective Subsidiaries, (ii) cause counsel to the Exchange Notes Issuer to deliver to the Arrangers executed legal opinions in form and substance customary for a transaction of that type to be mutually agreed upon by the Exchange Notes Issuer and Arrangers (including, without limitation, with respect to due authorization, execution and delivery; validity; and enforceability of the Exchange Notes Indenture) and a customary 10b-5 letter with respect to any offering memorandum pursuant to clause (i) above and cause the independent registered public accountants of the Exchange Notes Issuer and the Acquired Business to deliver drafts of “comfort letters” that include customary “negative assurances” (which drafts such accountants are prepared to issue in final form upon completion of customary procedures) and use commercially reasonable efforts to cause such accountants to render such “comfort letters” in each case with respect to the financial information in such offering memorandum, (iii) use commercially reasonable efforts to obtain public ratings for the Exchange Notes from each of ▇▇▇▇▇’▇ and S&P and (iv) take all such other actions and prepare and/or execute all such other documentations as one or more of Arrangers shall reasonably request.
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