and the other parties thereto and (ii) the favorable opinion dated the date of the Acquisition, of Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, counsel for the PEP
Guarantors, the form of which is attached as Exhibit A-2 hereto and of Massachusetts local counsel for the PEP Guarantors, the form of which is attached as Exhibit A-4 hereto.
The Representative on behalf of the several Initial Purchasers, may, in its sole discretion, waive in writing the performance by the Company
or any Guarantor of any one or more of the foregoing covenants or extend the time for their performance.
SECTION 4. Conditions of the
Obligations of the Initial Purchasers. The obligations of the several Initial Purchasers to purchase and pay for the Notes shall be subject to the accuracy of the representations and warranties of the Company in Section 2 hereof, in each
case as of the date hereof and as of the Closing Date, as if made on and as of the Closing Date and to the timely performance by the Company of its covenants and other obligations hereunder, and to each of the following additional conditions:
(a) Comfort Letters. The Initial Purchasers shall have received on the Closing Date a letter, dated the Closing Date, in
form and substance satisfactory to the Initial Purchasers and counsel for the Initial Purchasers, from each of (i) PricewaterhouseCoopers LLP, (ii) Ernst & Young LLP and (iii) Deloitte & Touche LLP, in each case
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 Final Offering
Memorandum; provided that each letter shall use a cut-off date within three days of the date of such letter. References to the Final Offering Memorandum in this paragraph with respect to any letter referred to above shall include
any amendment or supplement thereto at the date of such letter.
(b) No Material Adverse Change. For the period from
and after the date of this Agreement and prior to the Closing Date, no event or condition that results in a Material Adverse Change shall have occurred or shall exist, the effect of which in the judgment of the Representative makes it impracticable
or inadvisable to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement and the Final Offering Memorandum.
(c) No Ratings Agency Change. For the period from and after the date of this Agreement and prior to the Closing Date,
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 its subsidiaries or any of their securities or indebtedness by any nationally recognized statistical rating organization as such term is defined for purposes of Rule 436 under the Securities Act.
(d) Opinion of Counsel for the Company. On the Closing Date, the Initial Purchasers shall have received the favorable
opinion dated the Closing Date, of Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, counsel for the Company, the form of which is attached as Exhibit A-1 hereto and Ohio, Connecticut, Michigan and Texas local counsel for the
Company, the form of which is attached as Exhibit A-3 hereto.