The Offering Circular. The Offering Circular does not, and at the Closing Date will not, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that this representation, warranty and agreement shall not apply to statements in or omissions from the Offering Circular made in reliance upon and in conformity with information furnished to the Company in writing by any Initial Purchaser through Xxxxxxx, Xxxxx & Co. expressly for use in the Offering Circular. The Company has not distributed and will not distribute, prior to the later of the Closing Date and the completion of the Initial Purchasers' distribution of the Securities, any offering material in connection with the offering and sale of the Securities other than a preliminary Offering Circular or the Offering Circular (it being understood and agreed that the Offer to Purchase of QC dated August 11, 2004 and the accompanying letter of transmittal does not and shall not be deemed in any way to constitute such offering material). The Offering Circular has been furnished to you or will be furnished to you no later than 5:00 p.m. on the date hereof.
The Offering Circular ii. A written consent, in substantially the form attached as Exhibit B (the “Written Consent”). The Written consent will require the Members to declare their annual income and net worth, contain the basis for the calculation of Excess Interests and instructions for use in effecting the surrender of Exchanged Interests in exchange for the applicable portion of Merger Consideration pursuant to Section 2.08(b).
The Offering Circular. We have not examined any other documents. Except for rendering this opinion letter and any collateral opinion letters in conjunction with the issuance of the Notes, we have not participated in any aspects of the transactions or any of the actions contemplated by the Purchase Agreement. Accordingly, we have assumed that all parties to the Operative Documents have acted and will act in accordance with, and will refrain from taking any action that is forbidden by, the terms and conditions of the Operative Documents. We have also reviewed such questions of law as we have considered necessary and appropriate for the purposes of our opinions set forth below. In rendering our opinions set forth below, we have assumed the authenticity of all documents submitted to us as originals, the genuineness of all signatures and the conformity to authentic originals of all documents submitted to us as copies. We have also assumed the legal capacity for all purposes relevant hereto of all natural persons and, with respect to all parties to agreements or instruments relevant hereto, that such parties had the requisite power and authority (corporate or otherwise) to execute, deliver and perform such agreements or instruments, that such agreements or instruments have been duly authorized by all requisite action (corporate or otherwise), executed and delivered by such parties and that such agreements or instruments are the valid, binding and enforceable obligations of such parties. As to questions of fact material to our opinions, we have relied upon the representations made in the Purchase Agreement and upon certificates of officers of the Company and of public officials (including, without limitation, those certificates delivered to others at the closing). Based on the foregoing, we are of the opinion that:
The Offering Circular. The Offering Circular (including the documents incorporated therein by reference) does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading. There is no fact which the Company has not disclosed herein or in the Offering Circular (including the documents incorporated therein by reference) nor any amendment or supplement thereto as of the date thereof and at all times subsequent thereto up to the Closing Date that, so far as the Company can now foresee, is reasonably likely to have a material adverse effect on the performance of obligations hereunder by the Company and its Initial Subsidiaries, considered as a whole, or on the business, operations, financial condition, assets, liabilities or prospects of the Company and its Initial Subsidiaries taken as a whole. SECTION 5.9 Not an "Investment Company". Each of the Company and the Initial Subsidiaries is not, and when conducting business as contemplated by the Offering Circular (including the documents incorporated therein by reference) will not be, an "investment company" or an entity "controlled" by an \"investment company" as such terms are defined in the United States Investment Company Act of 1940, as amended. SECTION 5.10
The Offering Circular. The Pricing Circular, as of the Time of Execution, and the Final Offering Circular, as of its date and (as amended or supplemented in accordance with Section 3(a), as applicable) as of the Closing Date, did not and will not, as of their respective dates, contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that this representation, warranty and agreement shall not apply to statements in or omissions from the Pricing Circular, the Final Offering Circular or any amendment or supplement thereto made in reliance upon and in conformity with information furnished to the Company in writing by any Initial Purchaser through Xxxxxxx, Xxxxx & Co. expressly for use in the Pricing Circular, the Final Offering Circular or amendment or supplement thereto, as the case may be. The Pricing Circular contains, and the Final Offering Circular will contain, all the information specified in, and meeting the requirements of, Rule 144A. Neither the Company nor any of the Guarantors has distributed nor will distribute, prior to the later of the Closing Date and the completion of the Initial Purchasers’ distribution of the Securities, any offering material in connection with the offering and sale of the Securities other than the Pricing Circular and the Final Offering Circular.
The Offering Circular. (The agreements referred to in paragraphs (i) to (v) above are hereinafter sometimes collectively referred to as the “Transaction Documents”). For the purposes of this opinion, we have been supplied with and have examined, and relied upon a draft copy of the notation of guarantee of the Company (the “Exchange Guarantee”) to be endorsed on the Issuer’s new % Senior Notes due 2008 to be issued in exchange for the Notes pursuant to the registered exchange offer contemplated by the Registration Rights Agreement and included in the Indenture. We have also examined and relied upon the documents listed, and in some cases defined, in the First Schedule to this opinion (such documents together with the Transaction Documents are hereinafter sometimes collectively referred to as the “Documents”).
The Offering Circular. Supplement will specify whether the Warrants are American style Warrants ("American Style Warrants"), European style Warrants ("European Style Warrants") or Bermudan style Warrants ("Bermudan Style Warrants") in each case as further described in Condition 21 (Type of Warrants) and whether the Warrants are call Warrants ("Call Warrants") or put Warrants ("Put Warrants").
The Offering Circular. Supplement will specify whether the Notes are Equity Linked Notes (which shall be deemed to include the terms of the relevant Sub-Annex), Index Linked Notes, Fund Linked Notes, Commodity Linked Notes, Inflation Linked Notes, Foreign Exchange Rate Linked Notes or Reference Rate Linked Notes or other structured Notes (together, the "Structured Notes").
The Offering Circular. 2. The Letter of Transmittal for your use and for the information of your clients.
The Offering Circular. The Offering Circular (including the documents incorporated therein by reference) does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading. There is no fact which the Company has not disclosed herein or in the Offering Circular (including the documents incorporated therein by reference) nor any amendment or supplement thereto as of the date thereof and at all times subsequent thereto up to the Closing Date that, so far as the Company can now foresee, is reasonably likely to have a material adverse effect on the performance of obligations hereunder by the Company and its Initial Subsidiaries, considered as a whole, or on the business, operations, financial condition, assets, liabilities or prospects of the Company and its Initial Subsidiaries taken as a whole.
