Representations and Warranties of the Initial Purchaser. The Initial Purchaser represents and warrants to, and agrees with, the Company that: (a) The Initial Purchaser is either a QIB or an Accredited Institution with such knowledge and experience in financial and business matters as are necessary in order to evaluate the merits and risks of an investment in the Series A Notes. (b) The Initial Purchaser (i) is not acquiring the Series A Notes with a view to any distribution thereof or with any present intention of offering or selling any of the Series A Notes in a transaction that would violate the Act or the securities laws of any State of the United States or any other applicable jurisdiction and (ii) will be reoffering and reselling the Series A Notes only to QIBs in reliance on the exemption from the registration requirements of the Act provided by Rule 144A and to a limited number of Accredited Institutions that execute and deliver a letter containing certain representations and agreements in the form attached as Annex A to the Offering Circular. (c) The Initial Purchaser agrees that no form of general solicitation or general advertising (within the meaning of Regulation D under the Act) has been or will be used by the Initial Purchaser or any of its representatives in connection with the offer and sale of any of the Series A Notes pursuant hereto, including, but not limited to, articles, notices or other communications published in any newspaper, magazine or similar medium, or broadcast over television or radio, or transmitted over the internet, or communicated in any seminar or meeting whose attendees have been invited by any general solicitation or general advertising. (d) The Initial Purchaser agrees that, in connection with Exempt Resales, it will solicit offers to buy the Series A Notes only from, and will offer to sell the Series A Notes only to, Eligible Purchasers. The Initial Purchaser further agrees that it will offer to sell the Series A Notes only to, and will solicit offers to buy the Series A Notes only from (i) Eligible Purchasers that the Initial Purchaser reasonably believes are QIBs and (ii) Accredited Institutions who make the representations contained in, and execute and return to the Initial Purchaser, a certificate in the form of Annex A attached to the Offering Circular, in each case, that agree that (A) the Series A Notes purchased by them may be resold, pledged or otherwise transferred within the time period referred to under Rule 144(k) (taking into account the provisions of Rule 144(d) under the Act, if applicable) under the Act, as in effect on the date of the transfer of such Series A Notes, only (1) to the Company, (2) to a person whom the seller reasonably believes is a QIB purchasing for its own account or for the account of a QIB in a transaction meeting the requirements of Rule 144A under the Act, (3) in an offshore transaction (as defined in Rule 902 under the Act) meeting the requirements of Rule 904 of the Act, (4) in a transaction meeting the requirements of Rule 144 under the Act, (5) to an Accredited Institution that, prior to such transfer, furnishes the Trustee a signed letter containing certain representations and agreements relating to the registration of transfer of such Series A Note (the form of which is substantially the same as Annex A to the Offering Circular) and, if such transfer is in respect of an aggregate principal amount of Series A Notes less than $250,000, an opinion of counsel acceptable to the Company that such transfer is in compliance with the Act, (6) in accordance with another exemption from the registration requirements of the Act (and based upon an opinion of counsel acceptable to the Company) or (7) pursuant to an effective registration statement and, in each case, in accordance with the applicable securities laws of any state of the United States or any other applicable jurisdiction and (B) they will deliver to each person to whom such Series A Notes or an interest therein is transferred a notice substantially to the effect of the foregoing. (e) None of such Initial Purchaser nor any of its affiliates or any person acting on its or their behalf has engaged or will engage in any directed selling efforts within the meaning of Regulation S with respect to the Series A Notes. The Initial Purchaser acknowledges that the Company and, for purposes of the opinions to be delivered to the Initial Purchaser pursuant to Section 10 hereof, counsel to the Company and counsel to the Initial Purchaser will rely upon the accuracy and truth of the foregoing representations and the Initial Purchaser hereby consents to such reliance.
Appears in 2 contracts
Sources: Purchase Agreement (Riviera Black Hawk Inc), Purchase Agreement (Riviera Holdings Corp)
Representations and Warranties of the Initial Purchaser. The Initial Purchaser represents and warrants to, and agrees with, the Company thatIssuers:
(a) The Such Initial Purchaser is either a QIB or an Accredited Institution with such knowledge and experience in financial and business matters as are necessary in order to evaluate the merits and risks of an investment in the Series A Notes.
(b) The Such Initial Purchaser (i) is not acquiring the Series A Notes with a view to any distribution thereof or with any present intention of offering or selling any of the Series A Notes in a transaction that would violate the Act or the securities laws of any State of the United States or any other applicable jurisdiction and (ii) will be reoffering and reselling the Series A Notes only to QIBs in reliance on the exemption from the registration requirements of the Act provided by Rule 144A and to a limited number of Accredited Institutions that execute and deliver a letter to the Issuers and the Initial Purchaser containing certain representations and agreements in the form attached as Annex ----- A to the Offering Circular.. -
(c) The Initial Purchaser agrees that no No form of general solicitation or general advertising (within the meaning of Regulation D under the Act) has been or will be used by the such Initial Purchaser or any of its representatives in connection with the offer and sale of any of the Series A Notes pursuant hereto, including, but not limited to, articles, notices or other communications published in any newspaper, magazine or similar medium, or broadcast over television or radio, or transmitted over the internetInternet, or communicated in any seminar or meeting whose attendees have been invited by any general solicitation or general advertising.
(d) The Such Initial Purchaser agrees that, in connection with Exempt Resales, it such Initial Purchaser will solicit offers to buy the Series A Notes only from, and will offer to sell the Series A Notes only to, Eligible Purchasers. The Initial Purchaser further agrees that it will offer to sell the Series A Notes only to, and will solicit offers to buy the Series A Notes only from (i) Eligible Purchasers that the Initial Purchaser reasonably believes are QIBs and (ii) Accredited Institutions who make the representations contained in, and execute and return to the Initial Purchaser, a certificate in the form of Annex ----- A attached to the Offering Circular, in each case, that agree that (A) the - Series A Notes purchased by them may be resold, pledged or otherwise transferred within the time period referred to under Rule 144(k) (taking into account the provisions of Rule 144(d) under the Act, if applicable) under the Act, as in effect on the date of the transfer of such Series A Notes, only (1) to the CompanyIssuers, (2) to a person whom the seller reasonably believes is a QIB purchasing for its own account or for the account of a QIB in a transaction meeting the requirements of Rule 144A under the Act, (3) in an offshore transaction (as defined in Rule 902 under the Act) meeting the requirements of Rule 904 of the Act, (4) in a transaction meeting the requirements of Rule 144 under the Act, (5) to an Accredited Institution that, prior to such transfer, furnishes the Trustee a signed letter containing certain representations and agreements relating to the registration of transfer of such Series A Note (the form of which is substantially the same as Annex A to the Offering Circular) and, if such ------- transfer is in respect of an aggregate principal amount of Series A Notes less than $250,000, an opinion of counsel acceptable to the Company Issuers that such transfer is in compliance with the Act, (6) in accordance with another exemption from the registration requirements of the Act (and based upon an opinion of counsel acceptable to the CompanyIssuers) or (7) pursuant to an effective registration statement and, in each case, in accordance with the applicable securities laws of any state of the United States or any other applicable jurisdiction and (B) they will deliver to each person to whom such Series A Notes or an interest therein is transferred a notice substantially to the effect of the foregoing.
(e) None of such the Initial Purchaser nor any of its affiliates or any person acting on its or their behalf has engaged or will engage in any directed selling efforts within the meaning of Regulation S with respect to the Series A Notes. The Initial Purchaser acknowledges that the Company Issuers and, for purposes of the opinions to be delivered to the Initial Purchaser pursuant to Section 10 11 hereof, counsel to the Company Issuers and counsel to the Initial Purchaser will rely upon the accuracy and truth of the foregoing representations and the Initial Purchaser hereby consents to such reliance.
Appears in 1 contract
Sources: Purchase Agreement (Isle of Capri Black Hawk Capital Corp)
Representations and Warranties of the Initial Purchaser. The Initial Purchaser represents and warrants to, and agrees with, the Company Issuer that:
(a) The Initial Purchaser is either a QIB or an Accredited Institution with such knowledge and experience in financial and business matters as are necessary in order to evaluate the merits and risks of an investment in the Series A Notes.
(b) The Initial Purchaser (i) is not acquiring the Series A Notes with a view to any distribution thereof or with any present intention of offering or selling any of the Series A Notes in a transaction that would violate the Act or the securities laws of any State of the United States or any other applicable jurisdiction and (ii) will be reoffering and reselling the Series A Notes only to QIBs in reliance on the exemption from the registration requirements of the Act provided by Rule 144A and under the Act or to a limited number of Accredited Institutions that execute and deliver a letter containing certain representations and agreements non-U.S. persons in reliance upon Regulation S under the form attached as Annex A to the Offering CircularAct.
(c) The Initial Purchaser agrees that no form of general solicitation or general advertising (within the meaning of Regulation D under the Act) has been or will be used by the Initial Purchaser or any of its representatives in connection with the offer and sale of any of the Series A Notes pursuant hereto, including, but not limited to, articles, notices or other communications published in any newspaper, magazine or similar medium, or broadcast over television or radio, or transmitted over the internet, or communicated communications in any seminar or meeting whose attendees have been invited by any general solicitation or general advertising.
(d) The Initial Purchaser agrees that, in connection with Exempt Resales, it will solicit offers to buy the Series A Notes only from, and will offer to sell the Series A Notes only to, to Eligible Purchasers. The Initial Purchaser further agrees that it will offer to sell the Series A Notes only to, and will solicit offers to buy the Series A Notes only from (i) Eligible Purchasers that the Initial Purchaser reasonably believes are QIBs and (ii) Accredited Institutions who make the representations contained in, and execute and return to the Initial Purchaser, a certificate in the form of Annex A attached to the Offering Circular, in each case, or non-U.S. persons that agree that (Ai) the Series A Notes purchased by them may be resold, pledged or otherwise transferred within the time period referred to under Rule 144(k) (taking into account the provisions of Rule 144(d) under the Act, if applicable) under the Act, as in effect on the date of the transfer of such Series A Notes, only (1A) to the CompanyIssuer, (2B) to a person whom the seller reasonably believes is a QIB purchasing for its own account or for the account of a QIB in a transaction meeting the requirements of Rule 144A under the Act, (3C) in an offshore transaction (as defined in Rule 902 under the Act) meeting the requirements of Rule 904 of the Act, (4D) in a transaction meeting the requirements of Rule 144 under the Act, (5E) to an Accredited Institution “accredited investor,” as defined in Rule 501(a)(1), (2), (3) and (7) under the Act, that, prior to such transfer, furnishes the Trustee a signed letter containing certain representations and agreements relating to the registration of transfer of such Series A Note (the form of which is substantially the same as Annex A to the Offering Circular) and, if such transfer is in respect of an aggregate principal amount of Series A Notes less than $250,000, an opinion of counsel acceptable to the Company Issuer that such transfer is in compliance with the Act, (6F) in accordance with another exemption from the registration requirements of the Act (and based upon an opinion of counsel acceptable to the CompanyIssuer) or (7G) pursuant to an effective registration statement and, in each case, in accordance with the applicable securities laws of any state of the United States or any other applicable jurisdiction and (Bii) they will deliver to each person to whom such Series A Notes or an interest therein is transferred a notice substantially to the effect of the foregoing.
(e) None of such Initial Purchaser nor any of its affiliates or any person acting on its or their behalf has engaged or will engage in any directed selling efforts within the meaning of Regulation S with respect to the Series A Notes. The Initial Purchaser acknowledges that the Company Issuer and, for purposes of the opinions to be delivered to the Initial Purchaser pursuant to Section 10 9 hereof, counsel to the Company Issuer and counsel to the Initial Purchaser will rely upon the accuracy and truth of the foregoing representations and the Initial Purchaser hereby consents to such reliance.
Appears in 1 contract
Representations and Warranties of the Initial Purchaser. The Initial Purchaser represents and warrants to, and agrees withto the Issuer, the Company thatand the Guarantors that as of the date hereof and as of the Closing Date:
(a) The Initial Purchaser It is either a QIB or an Accredited Institution as defined in Rule 144A under the Act, with such knowledge and experience in financial and business matters as are necessary in order to evaluate the merits and risks of an investment in the Series A NotesNotes and the Initial Purchaser acknowledges that it is purchasing the Notes pursuant to a private sale exempt from registration under the Act and that the Notes have not been registered under the Act. It will offer the Notes for resale only upon the terms and conditions set forth in this Agreement and in the Final Offering Circular.
(b) The Initial Purchaser (i) It is not acquiring the Series A Notes with a view to any distribution thereof or with any present intention of offering or selling any of the Series A Notes in a transaction that would violate the Act or the securities laws of any State state of the United States States, the United Kingdom or any other applicable jurisdiction and (ii) jurisdiction. It will be reoffering and reselling solicit offers to buy the Series A Notes only from, and will offer and sell the Notes only to, (A) persons reasonably believed by the Initial Purchaser to be QIBs or (B) persons reasonably believed by the Initial Purchaser to be Accredited Investors or (C) non-U.S. persons reasonably believed by the Initial Purchaser to be a purchaser referred to in reliance on Regulation S under the exemption from Act; provided, however, that in purchasing such Notes, such persons are deemed to have represented and agreed as provided under the registration requirements of the Act provided by Rule 144A and caption “Notice to a limited number of Accredited Institutions that execute and deliver a letter containing certain representations and agreements Investors” contained in the form attached as Annex A to the Final Offering Circular.
(c) The Initial Purchaser agrees that no No form of general solicitation or general advertising (within in violation of the meaning of Regulation D under the Act) Act has been or will be used by nor will any offers in any manner involving a public offering within the Initial Purchaser or any meaning of its representatives in connection with the offer and sale of any Section 4(2) of the Series A Notes pursuant hereto, including, but not limited to, articles, notices or other communications published in any newspaper, magazine or similar medium, or broadcast over television or radio, or transmitted over the internet, or communicated in any seminar or meeting whose attendees have been invited by any general solicitation or general advertisingAct.
(d) The Initial Purchaser agrees that, in connection with Exempt ResalesWith respect to offers and sales outside the United States, it will solicit offers to buy has offered the Series A Notes only from, and will offer to and sell the Series A Notes only to, Eligible Purchasers. The Initial Purchaser further agrees that it will offer to sell the Series A Notes only to, and will solicit offers to buy the Series A Notes only from (i) Eligible Purchasers that the Initial Purchaser reasonably believes are QIBs and (ii) Accredited Institutions who make the representations contained in, and execute and return to the Initial Purchaser, a certificate in the form of Annex A attached to the Offering Circular, in each case, that agree that (A) the Series A Notes purchased by them may be resold, pledged or otherwise transferred within the time period referred to under Rule 144(k) (taking into account the provisions of Rule 144(d) under the Act, if applicable) under the Act, as in effect on the date of the transfer of such Series A Notes, only (1) to the Company, as part of its distribution at any time and (2) to a person whom otherwise until 40 days after the seller reasonably believes is a QIB purchasing for its own account or for the account of a QIB in a transaction meeting the requirements of Rule 144A under the Act, (3) in an offshore transaction (as defined in Rule 902 under the Act) meeting the requirements of Rule 904 later of the Actcommencement of the offering of the Notes and the Closing Date, (4) in a transaction meeting the requirements of Rule 144 under the Act, (5) to an Accredited Institution that, prior to such transfer, furnishes the Trustee a signed letter containing certain representations and agreements relating to the registration of transfer of such Series A Note (the form of which is substantially the same as Annex A to the Offering Circular) and, if such transfer is in respect of an aggregate principal amount of Series A Notes less than $250,000, an opinion of counsel acceptable to the Company that such transfer is in compliance with the Act, (6) only in accordance with Rule 903 of Regulation S or another exemption from the registration requirements of the Act (and based upon an opinion of counsel acceptable to the Company) or (7) pursuant to an effective registration statement andAct. Accordingly, in each case, in accordance with the applicable securities laws of any state of the United States or any other applicable jurisdiction and (B) they will deliver to each person to whom such Series A Notes or an interest therein is transferred a notice substantially to the effect of the foregoing.
(e) None of such Initial Purchaser neither it nor any of its affiliates or any person acting on its or their behalf has engaged or will engage in any directed selling efforts (within the meaning of Regulation S S) with respect to the Series A Notes. Terms used in this Section 6(e) and Section 6(f) have the meanings given to them by Regulation S.
(e) The Initial Purchaser acknowledges that the Company andagrees that, for purposes at or prior to confirmation of a sale of the opinions Notes pursuant to Regulation S it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Notes from it or through it during the restricted period a confirmation or notice to substantially the following effect: “The Securities covered hereby have not been registered under the United States Securities Act of 1933, as amended (the “Securities Act”), and may not be offered or sold within the United States or to or for the account or benefit of, U.S. persons (i) as part of their distribution at any time and (ii) otherwise until forty days after the later of the date upon which the offering of the Securities commenced and the date of closing, except in either case in accordance with Regulation S or Rule 144A under the Securities Act. Terms used above have the meaning given to them by Regulation S.”
(f) The Initial Purchaser will deliver to each Subsequent Purchaser of the Notes, in connection with its original distribution of the Notes, a copy of the Final Offering Circular, as amended and supplemented at the date of such delivery.
(g) The initial purchaser has:
(1) only communicated or caused to be delivered communicated and will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the Financial Services and Markets Act 2000 (the “FSMA”)) received by it in connection with the issue or sale of any Notes in circumstances in which section 21(1) of the FSMA does not apply to the Issuer; and
(2) complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the notes included in this Offering in, from or otherwise involving the United Kingdom.
(h) In relation to each Member State of the European Economic Area that has implemented the Prospectus Directive (each, a “Relevant Member State”), the Initial Purchaser has represented and agreed that with effect from and including the date on which the Prospectus Directive (defined below) is implemented in that Relevant Member State (the “Relevant Implementation Date”) it has not made and will not make an offer of Notes to the public in that Relevant Member State prior to the publication of an offering circular in relation to the Notes which has been approved by the competent authority in that Relevant Member State or, where appropriate, approved in another Relevant Member State and notified to the competent authority in that Relevant Member State, all in accordance with the Prospectus Directive, except that it may, with effect from and including the Relevant Implementation Date, make an offer of Notes to the public in that Relevant Member State at any time:
(i) to legal entities which are authorized or registered to operate in the financial markets or, if not so authorized or regulated, whose corporate purpose is solely to invest in securities;
(ii) to any legal entity which has two or more of (1) an average of at least 250 employees during the last financial year; (2) a total balance sheet of more than €43,000,000 and (3) an annual net turnover of more than €50,000,000, as shown in its last annual or consolidated accounts; or
(iii) in any other circumstances which do not require the publication by the Issuer of an offering circular pursuant to Section 10 hereofArticle 3 of the Prospectus Directive. For the purposes of this provision, counsel the expression an “offer of notes to the Company public” in relation to any offered notes in any Relevant Member State means the communication in any form and counsel to by any means of sufficient information on the Initial Purchaser will rely upon the accuracy and truth terms of the foregoing representations offer and the Initial Purchaser hereby consents notes to such reliancebe offered so as to enable an investor to decide to purchase or subscribe the notes, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State and the expression “Prospectus Directive” means Directive 2003/71/BC and includes any relevant implementing measure in each Relevant Member State.
Appears in 1 contract
Representations and Warranties of the Initial Purchaser. The Initial Purchaser represents and warrants to, and agrees with, the Company and the Guarantors that:
(a) The Initial Purchaser is either a QIB or an Accredited Institution with such knowledge and experience in financial and business matters as are necessary in order to evaluate the merits and risks of an investment in the Series A Notes.
(b) The Initial Purchaser (i) is not acquiring the Series A Notes with a view to any distribution thereof or with any present intention of offering or selling any of the Series A Notes in a transaction that would violate the Act or the securities laws of any State of the United States or any other applicable jurisdiction and (ii) will be reoffering and reselling the Series A Notes only to QIBs in reliance on the exemption from the registration requirements of the Act provided by Rule 144A and 144A, to a limited number of Accredited Institutions that execute and deliver a letter containing certain representations and agreements in the form attached as Annex A to the Offering Circular.Circular and in offshore transactions meeting the requirements of Regulation S.
(c) The Initial Purchaser agrees that no form of general solicitation or general advertising (within the meaning of Regulation D under the Act) has been or will be used by the Initial Purchaser or any of its representatives in connection with the offer and sale of any of the Series A Notes pursuant hereto, including, but not limited to, articles, notices or other communications published in any newspaper, magazine or similar medium, or broadcast over television or radio, or transmitted over the internet, or communicated in any seminar or meeting whose attendees have been invited by any general solicitation or general advertising.
(d) The Initial Purchaser agrees that, in connection with Exempt Resales, it will solicit offers to buy the Series A Notes only from, and will offer to sell the Series A Notes only to, Eligible Purchasers. The Initial Purchaser further agrees that it will offer to sell the Series A Notes only to, and will solicit offers to buy the Series A Notes only from (i) Eligible Purchasers that the Initial Purchaser reasonably believes are QIBs and (ii) Accredited Institutions who make the representations contained in, and execute and return to the Initial Purchaser, a certificate in the form of Annex A attached to the Offering CircularCircular and (iii) persons outside the United States in offshore transactions meeting the requirements of Regulation S, in each case, that agree that (A) the Series A Notes purchased by them may be resold, pledged or otherwise transferred within the time period referred to under Rule 144(k) (taking into account the provisions of Rule 144(d) under the Act, if applicable) under the Act, as in effect on the date of the transfer of such Series A Notes, only (1) to the Company, (2) to a person whom the seller reasonably believes is a QIB purchasing for its own account or for the account of a QIB in a transaction meeting the requirements of Rule 144A under the Act, (3) in an offshore transaction (as defined in Rule 902 under the Act) meeting the requirements of Rule 904 of the Act, (4) in a transaction meeting the requirements of Rule 144 under the Act, (54) to an Accredited Institution that, prior to such transfer, furnishes the Trustee a signed letter containing certain representations and agreements relating to the registration of transfer of such Series A Note (the form of which is substantially the same as Annex A to the Offering Circular) and, if such transfer is in respect of an aggregate principal amount of Series A Notes less than $250,000, based upon an opinion of counsel acceptable to the Company that such transfer is and the Trustee, (5) outside the United States to a Non-U.S. Person in compliance with a transaction meeting the Act, requirements of Rule 904 under the Securities Act (6) in accordance with another exemption from the registration requirements of the Act (and based upon an opinion of counsel acceptable to the Company) Company and the Trustee or (7) pursuant to an effective registration statement and, in each case, in accordance with the applicable securities laws of any state of the United States or any other applicable jurisdiction and (B) they will deliver to each person to whom such Series A Notes or an interest therein is transferred a notice substantially to the effect of the foregoing.
(e) None of such Initial Purchaser nor any of its affiliates or any person acting on its or their behalf has engaged or will engage in any directed selling efforts within the meaning of Regulation S with respect to the Series A Notes.
(f) The sale of the Series A Notes offered and sold by such Initial Purchaser pursuant hereto in reliance on Regulation S is not part of a plan or scheme to evade the registration provisions of the Act.
(g) The Initial Purchaser agrees that the Series A Notes have not been registered under the Act and that neither it nor its affiliates has offered or sold and will not offer or sell the Series A Notes in the United States or to, or for the benefit or account of, a U.S. Person (other than a distributor) (a) as part of its distribution at any time and (b) otherwise until 40 days after the later of the commencement of the offering of the Series A Notes pursuant hereto and the Closing Date (the "distribution compliance period"), other than in accordance with Regulation S or another exemption from the registration requirements of the Act. The Initial Purchaser agrees that, during such 40-day distribution compliance period, it will not cause any advertisement with respect to the Series A Notes (including any "tombstone" advertisement) to be published in any newspaper or periodical or posted in any public place and will not issue any circular relating to the Series A Notes, except such advertisements as permitted by and include the statements required by Regulation S. The Initial Purchaser also agrees that, at or prior to confirmation of a sale of Series A Notes offered and sold pursuant to Regulation S, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration in respect of the Series A Notes from it during the restricted period a confirmation or notice substantially to the following effect: "The Notes covered hereby have not been registered under the U.S. Securities Act of 1933, as amended (the "Securities Act"), and may not be offered or sold within the United States or to, or for the account or benefit of, United States persons (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering and the closing date, except in either case in accordance with Regulation S or Rule 144A under the Securities Act. Terms used in this paragraph shall have the meanings given to them by Regulation S under the Securities Act." The Initial Purchaser acknowledges that the Company and, for purposes of the opinions to be delivered to the Initial Purchaser pursuant to Section 10 9 hereof, counsel to the Company and counsel to the Initial Purchaser will rely upon the accuracy and truth of the foregoing representations and the Initial Purchaser hereby consents to such reliance.
Appears in 1 contract
Representations and Warranties of the Initial Purchaser. The Initial Purchaser represents and warrants to, and agrees with, the Company Issuer that:
(a) The Initial Purchaser is either a QIB or an Accredited Institution with such knowledge and experience in financial and business matters as are necessary in order to evaluate the merits and risks of an investment in the Series A Notes.
(b) The Initial Purchaser (i) is not acquiring the Series A Notes with a view to any distribution thereof or with any present intention of offering or selling any of the Series A Notes in a transaction that would violate the Act or the securities laws of any State of the United States or any other applicable jurisdiction and (ii) will be reoffering and reselling the Series A Notes only to QIBs in reliance on the exemption from the registration requirements of the Act provided by Rule 144A and under the Act or to a limited number of Accredited Institutions that execute and deliver a letter containing certain representations and agreements non-U.S. persons in reliance upon Regulation S under the form attached as Annex A to the Offering CircularAct.
(c) The Initial Purchaser agrees that no form of general solicitation or general advertising (within the meaning of Regulation D under the Act) has been or will be used by the Initial Purchaser or any of its representatives in connection with the offer and sale of any of the Series A Notes pursuant hereto, including, but not limited to, articles, notices or other communications published in any newspaper, magazine or similar medium, or broadcast over television or radio, or transmitted over the internet, or communicated communications in any seminar or meeting whose attendees have been invited by any general solicitation or general advertising.
(d) The Initial Purchaser agrees that, in connection with Exempt Resales, it will solicit offers to buy the Series A Notes only from, and will offer to sell the Series A Notes only to, Eligible Purchasers. The Initial Purchaser further agrees that it will offer to sell the Series A Notes only to, and will solicit offers to buy the Series A Notes only from (i) Eligible Purchasers that the Initial Purchaser reasonably believes are QIBs and (ii) Accredited Institutions who make the representations contained in, and execute and return to the Initial Purchaser, a certificate in the form of Annex A attached to the Offering Circular, in each case, or non-U.S. persons that agree that (Ai) the Series A Notes purchased by them may be resold, pledged or otherwise transferred within the time period referred to under Rule 144(k) (taking into account the provisions of Rule 144(d) under the Act, if applicable) under the Act, as in effect on the date of the transfer of such Series A Notes, only (1A) to the CompanyIssuer, (2B) to a person whom who the seller reasonably believes is a QIB purchasing for its own account or for the account of a QIB in a transaction meeting the requirements of Rule 144A under the Act, (3C) in an offshore transaction (as defined in Rule 902 under the Act) meeting the requirements of Rule 904 of the Act, (4D) in a transaction meeting the requirements of Rule 144 under the Act, (5) to an Accredited Institution that, prior to such transfer, furnishes the Trustee a signed letter containing certain representations and agreements relating to the registration of transfer of such Series A Note (the form of which is substantially the same as Annex A to the Offering Circular) and, if such transfer is in respect of an aggregate principal amount of Series A Notes less than $250,000, an opinion of counsel acceptable to the Company that such transfer is in compliance with the Act, (6E) in accordance with another exemption from the registration requirements of the Act (and based upon an opinion of counsel acceptable to the CompanyIssuer) or (7F) pursuant to an effective registration statement and, in each case, in accordance with the applicable securities laws of any state of the United States or any other applicable jurisdiction and (Bii) they will deliver to each person to whom such Series A Notes or an interest therein is transferred a notice substantially to the effect of the foregoing.
. In connection with sales of the Notes by the Initial Purchaser to non-U.S. persons outside the United States to whom the Initial Purchaser reasonably believes offers and sales of the Notes may be made in reliance upon Regulation S, the Initial Purchaser agrees (ei) None to comply with the offering restrictions requirement of Regulation S, (ii) at or prior to confirmation of the sale of such Initial Purchaser nor any Notes made in reliance on Regulation S, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration to which it sells Notes a confirmation or other notice as required by Rule 903 of its affiliates or any person acting on its or their behalf has engaged or will Regulation S, and (iii) not to engage in any directed selling efforts within the meaning of Regulation S hedging transactions with respect to the Series A NotesNotes prior to the date one year following the Closing Date except in compliance with the Securities Act. The Initial Purchaser acknowledges that the Company Issuer and, for purposes of the opinions to be delivered to the Initial Purchaser pursuant to Section 10 9 hereof, counsel to the Company Issuer and counsel to the Initial Purchaser will rely upon the accuracy and truth of the foregoing representations and the Initial Purchaser hereby consents to such reliance.
Appears in 1 contract
Representations and Warranties of the Initial Purchaser. The Initial Purchaser represents and warrants to, and agrees with, the Company Issuer that:
(a) The Initial Purchaser is either a QIB or an Accredited Institution with such knowledge and experience in financial and business matters as are necessary in order to evaluate the merits and risks of an investment in the Series A NotesDebentures.
(b) The Initial Purchaser (i) is not acquiring the Series A Notes Debentures with a view to any distribution thereof or with any present intention of offering or selling any of the Series A Notes Debentures in a transaction that would violate the Act or the securities laws of any State of the United States or any other applicable jurisdiction and (ii) will be reoffering and reselling the Series A Notes Debentures only to QIBs in reliance on the exemption from the registration requirements of the Act provided by Rule 144A and under the Act or to a limited number of Accredited Institutions that execute and deliver a letter containing certain representations and agreements non-U.S. persons in reliance upon Regulation S under the form attached as Annex A to the Offering CircularAct.
(c) The Initial Purchaser agrees that no form of general solicitation or general advertising (within the meaning of Regulation D under the Act) has been or will be used by the Initial Purchaser or any of its representatives in connection with the offer and sale of any of the Series A Notes Debentures pursuant hereto, including, but not limited to, articles, notices or other communications published in any newspaper, magazine or similar medium, or broadcast over television or radio, or transmitted over the internet, or communicated communications in any seminar or meeting whose attendees have been invited by any general solicitation or general advertising.
(d) The Initial Purchaser agrees that, in connection with Exempt Resales, it will solicit offers to buy the Series A Notes Debentures only from, and will offer to sell the Series A Notes Debentures only to, to Eligible Purchasers. The Initial Purchaser further agrees that it will offer to sell the Series A Notes Debentures only to, and will solicit offers to buy the Series A Notes Debentures only from (i) Eligible Purchasers that the Initial Purchaser reasonably believes are QIBs and (ii) Accredited Institutions who make the representations contained in, and execute and return to the Initial Purchaser, a certificate in the form of Annex A attached to the Offering Circular, in each case, or non-U.S. persons that agree that (Ai) the Series A Notes Debentures purchased by them may be resold, pledged or otherwise transferred within the time period referred to under Rule 144(k) (taking into account the provisions of Rule 144(d) under the Act, if applicable) under the Act, as in effect on the date of the transfer of such Series A NotesDebentures, only (1A) to the CompanyIssuer, (2B) to a person whom the seller reasonably believes is a QIB purchasing for its own account or for the account of a QIB in a transaction meeting the requirements of Rule 144A under the Act, (3C) in an offshore transaction (as defined in Rule 902 under the Act) meeting the requirements of Rule 904 of the Act, (4D) in a transaction meeting the requirements of Rule 144 under the Act, (5) to an Accredited Institution that, prior to such transfer, furnishes the Trustee a signed letter containing certain representations and agreements relating to the registration of transfer of such Series A Note (the form of which is substantially the same as Annex A to the Offering Circular) and, if such transfer is in respect of an aggregate principal amount of Series A Notes less than $250,000, an opinion of counsel acceptable to the Company that such transfer is in compliance with the Act, (6E) in accordance with another exemption from the registration requirements of the Act (and based upon an opinion of counsel acceptable to the CompanyIssuer) or (7F) pursuant to an effective registration statement and, in each case, in accordance with the applicable securities laws of any state of the United States or any other applicable jurisdiction and (Bii) they will deliver to each person to whom such Series A Notes Debentures or an interest therein is transferred a notice substantially to the effect of the foregoing.
. In connection with sales of the Debentures by the Initial Purchaser to non-U.S. persons outside the United States to whom the Initial Purchaser reasonably believes offers and sales of the Debentures may be made in reliance upon Regulation S, the Initial Purchaser agrees (ei) None to comply with the offering restrictions requirement of Regulation S, (ii) at or prior to confirmation of the sale of such Initial Purchaser nor any Debentures made in reliance on Regulation S, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration to which it sells Debentures a confirmation or other notice as required by Rule 903 of its affiliates or any person acting on its or their behalf has engaged or will Regulation S, and (iii) not to engage in any directed selling efforts within the meaning of Regulation S hedging transactions with respect to the Series A NotesDebentures and the Common Stock prior to the date one year following the Closing Date except in compliance with the Securities Act. The Initial Purchaser acknowledges that the Company Issuer and, for purposes of the opinions to be delivered to the Initial Purchaser pursuant to Section 10 9 hereof, counsel to the Company Issuer and counsel to the Initial Purchaser will rely upon the accuracy and truth of the foregoing representations and the Initial Purchaser hereby consents to such reliance.
Appears in 1 contract
Representations and Warranties of the Initial Purchaser. The Initial Purchaser proposes to offer the Notes for sale upon the terms and conditions set forth in this Agreement, and the Initial Purchaser hereby represents and warrants to, to and agrees with, with the Company that:
(a) The Initial Purchaser is either a QIB or an Accredited Institution with such knowledge other than pursuant to the Exchange, it will offer and experience in financial and business matters as are necessary in order sell the Notes only to evaluate the merits and risks of an investment persons in the Series A United States and to U.S. persons (as described in Rule 902 of Regulation S) whom it, or its agents, reasonably believe are QIBs in transactions meeting the requirements of Rule 144A and that, in purchasing such Notes., are deemed to have represented and agreed as provided in the Final Memorandum under the caption “Transfer restrictions”;
(b) The Initial Purchaser (i) it is not acquiring a QIB within the Series A Notes with a view to any distribution thereof or with any present intention meaning of offering or selling any of the Series A Notes in a transaction that would violate the Act or the securities laws of any State of the United States or any other applicable jurisdiction and (ii) will be reoffering and reselling the Series A Notes only to QIBs in reliance on the exemption from the registration requirements of the Act provided by Rule 144A and to a limited number of Accredited Institutions that execute and deliver a letter containing certain representations and agreements in the form attached as Annex A to the Offering Circular.144A;
(c) The Initial Purchaser agrees that no it has not and will not, directly or indirectly, solicit offers for, or offer or sell, the Notes by any form of “general solicitation solicitation” or “general advertising advertising” (within the meaning of as such terms are used in Regulation D under the Act) has been or will be used by in any manner involving a public offering within the Initial Purchaser or any meaning of its representatives in connection with the offer and sale of any Section 4(a)(2) of the Series A Notes pursuant hereto, including, but not limited to, articles, notices or other communications published in any newspaper, magazine or similar medium, or broadcast over television or radio, or transmitted over the internet, or communicated in any seminar or meeting whose attendees have been invited by any general solicitation or general advertising.Act;
(d) The Initial Purchaser agrees that, in connection with Exempt Resales, it will solicit offers to buy the Series A Notes only from, and will offer to sell the Series A Notes only to, Eligible Purchasers. The Initial Purchaser further agrees that it will offer to and sell the Series A Notes only to, and will solicit offers to buy persons outside the Series A Notes only from (i) Eligible Purchasers United States that the Initial Purchaser reasonably believes are QIBs and (ii) Accredited Institutions who make the representations contained in, and execute and return to the Initial Purchaser, a certificate in the form of Annex A attached to the Offering Circular, in each case, that agree that (A) the Series A Notes purchased by them may be resold, pledged or otherwise transferred within the time period referred to under Rule 144(k) (taking into account the provisions of Rule 144(d) under the Act, if applicable) under the Act, as in effect on the date of the transfer of such Series A Notes, only (1) to the Company, (2) to a person whom the seller reasonably believes is a QIB purchasing for its own account or for the account of a QIB in a transaction meeting the requirements of Rule 144A under the Act, (3) in an offshore transaction not U.S. persons (as defined in Rule 902 of Regulation S) in accordance with Regulation S under the Act;
(e) meeting it has not made and will not make, directly or indirectly, any “directed selling efforts” (as defined in Rule 902 of Regulation S) with respect to the Notes or the Shares; and it has complied and will comply with the offering restrictions requirements of Rule 904 903 of Regulation S;
(f) in connection with offers and sales of the Notes by it other than pursuant to Rule 144A, it will send to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Notes from it during the 40-day distribution compliance period set forth in Rule 903 of Regulation S a confirmation or notice to substantially the following effect: “The Securities covered hereby have not been registered under the U.S. Securities Act of 1933, as amended (the “Securities Act”), and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons (4i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering and the closing date, except in a transaction meeting either case in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have the meaning given to them by Regulation S”;
(g) to the extent it makes any offers or sales of Notes in Canada, it will offer and sell such Notes in Canada, and to residents of Canada, only in transactions that are exempt from the prospectus requirements of Rule 144 applicable Canadian Securities Laws;
(h) it and/or its affiliates have the requisite registrations or licenses, or are exempt therefrom, under applicable Canadian Securities Laws in each Canadian jurisdiction where it will offer or sell the ActNotes;
(i) it will offer and sell the Notes only to persons that are either (i) resident in Canada who are “accredited investors”, within the meaning of National Instrument 45-106 — Prospectus Exemptions (5“NI 45-106”) to an Accredited Institution that, prior to such transfer, furnishes the Trustee a signed letter containing certain representations and agreements relating to the registration of transfer of such Series A Note (the form of which is substantially the same as Annex A to the Offering Circular) and, if such transfer is in respect of an aggregate principal amount of Series A Notes less than $250,000, an opinion of counsel acceptable to the Company that such transfer is in compliance with the Actrequirements of Canadian Securities Laws or (ii) not resident in Canada, and in each case who are deemed to acknowledge in a subscription agreement that: (6A) in accordance no securities commission or similar regulatory authority has reviewed or passed on the merits of the Notes or the Shares issuable upon conversion of the Notes; (B) there is no government or other insurance covering the Notes or the Shares issuable upon conversion of the Notes; (C) there are risks associated with another the purchase of the Notes and the Shares issuable upon conversion of the Notes; (D) there are restrictions on such person’s ability to resell the Notes and the Shares issuable upon conversion of the Notes and it is the responsibility of such person to find out what those restrictions are and to comply with them before selling the Notes or the Shares issuable upon conversion of the Notes; and (E) the Company has advised such purchaser that the Company is relying on an exemption from the registration requirements to provide the purchaser with a prospectus and to sell the Notes and Shares issuable upon conversion of the Notes through a person registered to sell securities under the Securities Act (Ontario) and, as a consequence of acquiring the Notes and based any Shares issuable upon an opinion conversion of counsel acceptable the Notes pursuant to this exemption, certain protections, rights and remedies provided by the Securities Act (Ontario), including statutory rights of rescission or damages, will not be available to the purchaser, and in (i) such persons who purchase the Notes are deemed to have made such representations and agreements provided in the Canadian final offering memorandum prepared for delivery with the Final Memorandum to prospective purchasers in Canada under the caption “Representations of Investors” and in (ii) such persons who purchase the Notes are deemed to have made such representations and agreements as provided in the Final Memorandum under the caption “Transfer Restrictions”;
(j) it will deliver to the Company) , as soon as practicable, and in any event in sufficient time to allow the Company to comply with all Canadian Securities Laws in any jurisdiction in which the Notes are offered or (7) pursuant sold, all necessary information to an effective registration statement andallow the Company to file all required forms, in each caseincluding those required under NI 45-106, in accordance with the applicable securities laws of relevant Securities Authorities;
(k) it acknowledges that (i) the Notes have not been registered or qualified for distribution in any state of Canadian province, and are not eligible for resale in Canada for a period ending four months plus one day from the United States or any Closing Date other applicable jurisdiction than through an exemption from the prospectus requirement under Canadian Securities Laws, and (Bii) they any certificate representing the Notes sold in Canada will deliver to each person to whom bear, or if the Notes are entered into a direct registration or other electronic book-entry system then the Initial Purchaser acknowledges notice of such Series A Notes or an interest therein is transferred a notice substantially to sold in Canada being subject to, the effect of legend set forth below: “UNLESS PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF THIS SECURITY MUST NOT TRADE THE SECURITY BEFORE [insert four months plus 1 day from the foregoing.Closing Date]; and
(el) None of such Initial Purchaser nor any of its affiliates or any person acting on its or their behalf has engaged or will engage in any directed selling efforts it is an “accredited investor”, within the meaning of Regulation S with respect NI 45-106, entitled to purchase the Notes in reliance on exemptions from the prospectus requirements of applicable Canadian Securities Laws and, unless it has provided written advice to the Series A Notes. The Initial Purchaser acknowledges that contrary to the Company, it is not an “insider” of the Company and, for purposes (within the meaning of the opinions to be delivered to the Initial Purchaser pursuant to Section 10 hereof, counsel to the Company and counsel to the Initial Purchaser will rely upon the accuracy and truth of the foregoing representations and the Initial Purchaser hereby consents to such relianceCanadian Securities Laws).
Appears in 1 contract
Representations and Warranties of the Initial Purchaser. The Initial Purchaser represents and warrants to, and agrees with, the Company thatto Holdings as follows:
(a) The Initial Purchaser is either a QIB or an Accredited Institution with such knowledge and experience in financial and business matters as are necessary in order to evaluate the merits and risks of an investment in the Series A NotesUnits.
(b) The Initial Purchaser (i) is not acquiring the Series A Notes Units with a view to any distribution thereof or with any present intention of offering or selling any of the Series A Notes Units in a transaction that would violate the Act or the securities laws of any State of the United States or any other applicable jurisdiction and jurisdiction, (ii) will be reoffering and reselling the Series A Notes Units only to QIBs in reliance on the exemption from the registration requirements of the Act provided by Rule 144A and to non-U.S. persons outside the United States in reliance on the exemption from the registration requirements of the Act provided by Regulation S and (iii) has not solicited and, unless and until the Units are registered under the Act, will not solicit any offer to buy or offer to sell the Units by means of any form of general solicitation or general advertising (as such terms are defined in Regulation D under the Act) or in any manner involving a limited number public offering within the meaning of Accredited Institutions that execute and deliver a letter containing certain representations and agreements in the form attached as Annex A to the Offering CircularAct.
(c) The Initial Purchaser agrees also understands that no form of general solicitation or general advertising (within the meaning of Regulation D under the Act) has been or will be used by the Initial Purchaser or any of its representatives in connection with the offer and sale of any of the Series A Notes pursuant hereto, including, but not limited to, articles, notices or other communications published in any newspaper, magazine or similar medium, or broadcast over television or radio, or transmitted over the internet, or communicated in any seminar or meeting whose attendees have been invited by any general solicitation or general advertising.
(d) The Initial Purchaser agrees that, in connection with Exempt Resales, it will solicit offers to buy the Series A Notes only from, and will offer to sell the Series A Notes only to, Eligible Purchasers. The Initial Purchaser further agrees that it will offer to sell the Series A Notes only to, and will solicit offers to buy the Series A Notes only from (i) Eligible Purchasers that the Initial Purchaser reasonably believes are QIBs and (ii) Accredited Institutions who make the representations contained in, and execute and return to the Initial Purchaser, a certificate in the form of Annex A attached to the Offering Circular, in each case, that agree that (A) the Series A Notes purchased by them may be resold, pledged or otherwise transferred within the time period referred to under Rule 144(k) (taking into account the provisions of Rule 144(d) under the Act, if applicable) under the Act, as in effect on the date of the transfer of such Series A Notes, only (1) to the Company, (2) to a person whom the seller reasonably believes is a QIB purchasing for its own account or for the account of a QIB in a transaction meeting the requirements of Rule 144A under the Act, (3) in an offshore transaction (as defined in Rule 902 under the Act) meeting the requirements of Rule 904 of the Act, (4) in a transaction meeting the requirements of Rule 144 under the Act, (5) to an Accredited Institution that, prior to such transfer, furnishes the Trustee a signed letter containing certain representations and agreements relating to the registration of transfer of such Series A Note (the form of which is substantially the same as Annex A to the Offering Circular) and, if such transfer is in respect of an aggregate principal amount of Series A Notes less than $250,000, an opinion of counsel acceptable to the Company that such transfer is in compliance with the Act, (6) in accordance with another exemption from the registration requirements of the Act (and based upon an opinion of counsel acceptable to the Company) or (7) pursuant to an effective registration statement and, in each case, in accordance with the applicable securities laws of any state of the United States or any other applicable jurisdiction and (B) they will deliver to each person to whom such Series A Notes or an interest therein is transferred a notice substantially to the effect of the foregoing.
(e) None of such Initial Purchaser nor any of its affiliates or any person acting on its or their behalf has engaged or will engage in any directed selling efforts within the meaning of Regulation S with respect to the Series A Notes. The Initial Purchaser acknowledges that the Company Holdings and, for purposes of the opinions to be delivered to the Initial Purchaser pursuant to Section 10 hereofhereto, counsel to the Company Holdings and counsel to the Initial Purchaser will rely upon the accuracy and truth of the foregoing representations and the Initial Purchaser hereby consents to such reliance.
(d) The Initial Purchaser further agrees that, in connection with the Exempt Resales, it will solicit offers to buy the Units only from, and will offer to sell the Units only to, the Eligible Purchasers. The Initial Purchaser further agrees that it will offer to sell the Units only to, and will solicit offers to buy the Units only from, persons who in purchasing such Units will be deemed to have represented and agreed (1) if such Eligible Purchaser is a QIB, that it is purchasing the Units for its own account or an account with respect to which it exercises sole investment discretion and that its or such accounts are QIBs, (2) that such Units will not have been registered under the Act and may be resold, pledged or otherwise transferred, only (A) (I) inside the United States to a person who the seller reasonably believes is a "qualified institutional buyer" within the meaning of Rule 144A under the Act in a transaction meeting the requirements of Rule 144A, (II) in a transaction meeting the requirements of Rule 144 under the Act, (III) outside the United States to a foreign person in a transaction meeting the requirements of Rule 904 under the Act or (IV) in accordance with another exemption from the registration requirements of the Act (and based upon an opinion of counsel if Holdings so requests), (B) to Holdings or (C) pursuant to an effective registration statement under the Act, in each case, in accordance with any applicable securities laws of any State of the United States or any other applicable jurisdiction, and (3) that the holder will, and each subsequent holder is required to, notify any purchaser from it of the security evidenced thereby of the resale restrictions set forth in (2) above. Accordingly, the Initial Purchaser represents and agrees that neither it, its affiliates nor any persons acting on its or their behalf has engaged or will engage in any directed selling efforts within the meaning of Rule 901(b) of Regulation S with respect to the Units, and it, its affiliates and all persons acting on its or their behalf have complied and will comply with the offering restrictions requirements of Regulation S.
(e) The Initial Purchaser represents and agrees that the Units offered and sold in reliance on Regulation S have been and will be offered and sold only in offshore transactions and that such securities have been and will be represented upon issuance by a global security that may not be exchanged for definitive securities until the expiration of the restricted period (as defined in Regulation S) (except to the extent of any beneficial owners thereof who acquired an interest therein pursuant to another exemption from registration under the Act and who will take delivery of a beneficial ownership interest in a Rule 144A Global Note (as defined in the Indenture), as contemplated by the Indenture) and only upon certification of beneficial ownership of the securities by a non-U.S. person or a U.S. person who purchased such securities in a transaction that was exempt from the registration requirements of the Act.
(f) The Initial Purchaser agrees that, at or prior to confirmation of a sale of Units (other than a sale pursuant to Rule 144A or pursuant to Paragraph (i) of this Section 8), it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Units from it during the Restricted Period a confirmation or notice to substantially the following effect: "The Securities covered hereby have not been registered under the Act and may not be offered and sold within the United States or to, or for the account or benefit of, U.S. persons (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering and the closing date, except in either case in accordance with Regulation S (or Rule 144A if available) under the Act. Terms used above have the meaning given to them by Regulation S."
(g) The Initial Purchaser further agrees that it has not entered and will not enter into any contractual arrangement with respect to the distribution or delivery of the Units, except with its affiliates or with the prior written consent of Holdings.
(h) Notwithstanding the foregoing, Units in registered form may be offered, sold and delivered by the Initial Purchaser in the United States and to U.S. persons pursuant to Section 3 of this Agreement without delivery of the written statement required by paragraph (f) of this Section 8.
(i) The Initial Purchaser further represents and agrees that (i) it has not offered or sold and will not offer or sell any Units to persons in the United Kingdom prior to the expiry of the period of six months from the issue date of the Units, except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995, (ii) it has complied and will comply with all applicable provisions of the Financial Services ▇▇▇ ▇▇▇▇ with respect to anything done by it in relation to the Units in, from or otherwise involving the United Kingdom, and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issuance of the Units to a person who is of a kind described in Article 11(3) of the Financial Services ▇▇▇ ▇▇▇▇ (Investment Advertisements) (Exemptions) Order 1996 or is a person to whom the document may otherwise lawfully be issued or passed on.
(j) The Initial Purchaser agrees that it will not offer, sell or deliver any of the Units in any jurisdiction outside the United States except under circumstances that will result in compliance with the applicable laws thereof, and that it will take at its own expense whatever action is required to permit its purchase and resale of the Units in such jurisdictions. The Initial Purchaser understands that no action has been taken to permit a public offering in any jurisdiction outside the United States where action would be required for such purpose.
(k) The Initial Purchaser agrees not to cause any advertisement of the Units to be published in any newspaper or periodical or posted in any public place and not to issue any circular relating to the Units, except such advertisements that include the statements required by Regulation S.
(l) The sale of the Units in offshore transactions pursuant to Regulation S is not part of a plan or scheme to evade the registration provisions of the Act. Terms used in this Section 8 that have meanings assigned to them in Regulation S are used herein as so defined.
Appears in 1 contract
Representations and Warranties of the Initial Purchaser. The Initial Purchaser represents and warrants to, and agrees withto the Issuer, the Company thatand the Guarantors that as of the date hereof and as of the Closing Date:
(a) The Initial Purchaser It is either a QIB or an Accredited Institution as defined in Rule 144A under the Act, with such knowledge and experience in financial and business matters as are necessary in order to evaluate the merits and risks of an investment in the Series A NotesNotes and the Initial Purchaser acknowledges that it is purchasing the Notes pursuant to a private sale exempt from registration under the Act and that the Notes have not been registered under the Act. It will offer the Notes for resale only upon the terms and conditions set forth in this Agreement and in the Final Offering Circular.
(b) The Initial Purchaser (i) It is not acquiring the Series A Notes with a view to any distribution thereof or with any present intention of offering or selling any of the Series A Notes in a transaction that would violate the Act or the securities laws of any State of the United States or any other applicable jurisdiction and (ii) will be reoffering and reselling the Series A Notes only to QIBs in reliance on the exemption from the registration requirements of the Act provided by Rule 144A and to a limited number of Accredited Institutions that execute and deliver a letter containing certain representations and agreements in the form attached as Annex A to the Offering Circular.
(c) The Initial Purchaser agrees that no form of general solicitation or general advertising (within the meaning of Regulation D under the Act) has been or will be used by the Initial Purchaser or any of its representatives in connection with the offer and sale of any of the Series A Notes pursuant hereto, including, but not limited to, articles, notices or other communications published in any newspaper, magazine or similar medium, or broadcast over television or radio, or transmitted over the internet, or communicated in any seminar or meeting whose attendees have been invited by any general solicitation or general advertising.
(d) The Initial Purchaser agrees that, in connection with Exempt Resales, it will solicit offers to buy the Series A Notes only from, and will offer to sell the Series A Notes only to, Eligible Purchasers. The Initial Purchaser further agrees that it will offer to sell the Series A Notes only to, and will solicit offers to buy the Series A Notes only from (i) Eligible Purchasers that the Initial Purchaser reasonably believes are QIBs and (ii) Accredited Institutions who make the representations contained in, and execute and return to the Initial Purchaser, a certificate in the form of Annex A attached to the Offering Circular, in each case, that agree that (A) the Series A Notes purchased by them may be resold, pledged or otherwise transferred within the time period referred to under Rule 144(k) (taking into account the provisions of Rule 144(d) under the Act, if applicable) under the Act, as in effect on the date of the transfer of such Series A Notes, only (1) to the Company, (2) to a person whom the seller reasonably believes is a QIB purchasing for its own account or for the account of a QIB in a transaction meeting the requirements of Rule 144A under the Act, (3) in an offshore transaction (as defined in Rule 902 under the Act) meeting the requirements of Rule 904 of the Act, (4) in a transaction meeting the requirements of Rule 144 under the Act, (5) to an Accredited Institution that, prior to such transfer, furnishes the Trustee a signed letter containing certain representations and agreements relating to the registration of transfer of such Series A Note (the form of which is substantially the same as Annex A to the Offering Circular) and, if such transfer is in respect of an aggregate principal amount of Series A Notes less than $250,000, an opinion of counsel acceptable to the Company that such transfer is in compliance with the Act, (6) in accordance with another exemption from the registration requirements of the Act (and based upon an opinion of counsel acceptable to the Company) or (7) pursuant to an effective registration statement and, in each case, in accordance with the applicable securities laws of any state of the United States or any other applicable jurisdiction jurisdiction. It will solicit offers to buy the Notes only from, and will offer and sell the Notes only to, (A) persons reasonably believed by the Initial Purchaser to be QIBs or (B) they will deliver persons reasonably believed by the Initial Purchaser to each person be Accredited Investors or (C) non-U.S. persons reasonably believed by the Initial Purchaser to whom be a purchaser referred to in Regulation S under the Act; provided, however, that in purchasing such Series A Notes or an interest therein is transferred a notice substantially Notes, such persons are deemed to have represented and agreed as provided under the effect of caption “Notice to Investors” contained in the foregoingFinal Offering Circular.
(ec) None No form of such Initial Purchaser general solicitation or general advertising in violation of the Act has been or will be used nor will any offers in any manner involving a public offering within the meaning of Section 4(2) of the Act.
(d) With respect to offers and sales outside the United States, it has offered the Notes and will offer and sell the Notes (1) as part of its affiliates distribution at any time and (2) otherwise until 40 days after the later of the commencement of the offering of the Notes and the Closing Date, only in accordance with Rule 903 of Regulation S or another exemption from the registration requirements of the Act. Accordingly, neither it nor any person acting on its or their behalf has engaged or will engage in any directed selling efforts (within the meaning of Regulation S S) with respect to the Series A Notes. , and any such persons have complied and will comply with the offering restrictions requirements of Regulation S. Terms used in this Section 6(e) and Section 6(f) have the meanings given to them by Regulation S.
(e) The Initial Purchaser acknowledges that the Company andagrees that, for purposes at or prior to confirmation of a sale of the opinions to be delivered to the Initial Purchaser Notes pursuant to Section 10 hereofRegulation S it will have sent to each distributor, counsel dealer or person receiving a selling concession, fee or other remuneration that purchases Notes from it or through it during the restricted period a confirmation or notice to substantially the Company following effect: “The Securities covered hereby have not been registered under the United States Securities Act of 1933, as amended (the “Securities Act”), and counsel may not be offered or sold within the United States or to or for the account or benefit of, U.S. persons (i) as part of their distribution at any time and (ii) otherwise until forty days after the later of the date upon which the offering of the Securities commenced and the date of closing, except in either case in accordance with Regulation S or Rule 144A under the Securities Act. Terms used above have the meaning given to them by Regulation S.”
(f) The Initial Purchaser will rely upon the accuracy and truth deliver to each Subsequent Purchaser of the foregoing representations Notes, in connection with its original distribution of the Notes, a copy of the Final Offering Circular, as amended and supplemented at the Initial Purchaser hereby consents to date of such reliancedelivery.
Appears in 1 contract
Representations and Warranties of the Initial Purchaser. The Initial Purchaser represents and warrants to, and agrees with, the Company that:
(a) The Initial Purchaser It is either a QIB or an Accredited Institution with such knowledge and experience in financial and business matters as are necessary in order to evaluate the merits and risks of an investment in the Series A NotesQIB.
(b) The Initial Purchaser It (i) is not acquiring the Series A Notes with a view to any distribution thereof or with any present intention of offering or selling any of the Series A Notes in a transaction that would violate the Act or the securities laws of any State state of the United States or any other applicable jurisdiction jurisdiction, and (ii) will be soliciting offers for the Series A Notes only from, and will be reoffering and reselling the Series A Notes only to (A) persons in the United States whom it reasonably believes to be QIBs in reliance on the exemption from the registration requirements of the Act provided by Rule 144A and to or (B) a limited number of Accredited Institutions Investors that execute and deliver to each of the Issuers and the Initial Purchaser a letter containing certain representations and agreements in the form attached as Annex A to the Offering Circular.
(c) The Initial Purchaser agrees that no No form of general solicitation or general advertising (within in violation of the meaning of Regulation D under the Act) Act has been or will be used by the Initial Purchaser or any of its representatives in connection with the offer and sale of any of the Series A Notes pursuant hereto, including, but not limited to, articles, notices or other communications published in any newspaper, magazine or similar medium, or broadcast over television or radio, or transmitted over the internet, or communicated in any seminar or meeting whose attendees have been invited by any general solicitation or general advertisingNotes.
(d) The Initial Purchaser agrees that, in In connection with the Exempt Resales, it will solicit offers to buy the Series A Notes only from, and will offer to and sell the Series A Notes only to, Eligible Purchasers. The Initial Purchaser further agrees Purchasers who, in purchasing such Series A Notes, will be deemed to have represented and agreed (i) if such Eligible Initial Purchasers are QIBs, that it will offer to sell they are purchasing the Series A Notes only tofor their own accounts or accounts with respect to which they exercise sole investment discretion and that they or such accounts are QIBs, and will solicit offers to buy the (ii) that such Series A Notes only from (i) Eligible Purchasers that will not have been registered under the Initial Purchaser reasonably believes are QIBs Act and (ii) Accredited Institutions who make the representations contained in, and execute and return to the Initial Purchaser, a certificate in the form of Annex A attached to the Offering Circular, in each case, that agree that (A) the Series A Notes purchased by them may be resold, pledged or otherwise transferred within transferred, prior to the time date that is two years (or such other period referred to that may hereafter be provided under Rule 144(k) as permitting resales of restricted securities by non- affiliates without restriction) after the later of the original issue date of the Series A Notes and the last date on which either of the Issuers or any of their respective affiliates was the owner of the Series A Notes only (taking into account A) to the provisions of Rule 144(dIssuers, (B) pursuant to a registration statement which has been declared effective under the Act, if applicable(C) for so long as the Series A Notes are eligible for resale pursuant to Rule 144A under the Act, as in effect on the date of the transfer of such Series A Notes, only (1) to the Company, (2) to a person whom who the seller reasonably believes is a QIB purchasing that purchases for its own account or for the account of a QIB to whom notice is given that the transfer is being made in a transaction meeting reliance on Rule 144A, (D) to an institutional "accredited investor" within the requirements meaning of Rule 144A under the ActSubparagraph (a)(1), (2), (3) in an offshore transaction or (as defined in 7) of Rule 902 501 under the Act) meeting Act that is acquiring the requirements of Rule 904 of the Act, (4) in a transaction meeting the requirements of Rule 144 under the Act, (5) to an Accredited Institution that, prior to such transfer, furnishes the Trustee a signed letter containing certain representations and agreements relating to the registration of transfer of such Series A Note (the form of which is substantially the same as Annex A to the Offering Circular) and, if such transfer is in respect of an aggregate principal amount of Series A Notes less than $250,000for its own account or the account of such an institutional "accredited investor," for investment purposes and not with a view to, an opinion or for offer or sale in connection with, any distribution in violation of counsel acceptable the Act or (E) pursuant to the Company that such transfer is in compliance with the Act, (6) in accordance with another available exemption from the registration requirements of the Act Act, and (iii) that the holder will, and based upon an opinion of counsel acceptable to the Company) or (7) pursuant to an effective registration statement andeach subsequent holder is required to, in each case, in accordance with the applicable securities laws of notify any state purchaser from it of the United States or any other applicable jurisdiction and (B) they will deliver to each person to whom such Series A Notes or an interest therein is transferred a notice substantially to the effect security evidenced thereby of the foregoingresale restrictions set forth in (ii) above.
(e) None of such Initial Purchaser nor any of It has all requisite power and authority to enter into, deliver and perform its affiliates or any person acting on its or their behalf has engaged or will engage in any directed selling efforts within the meaning of Regulation S with respect to the Series A Notes. The Initial Purchaser acknowledges that the Company and, for purposes of the opinions to be delivered to the Initial Purchaser pursuant to Section 10 hereof, counsel to the Company and counsel to the Initial Purchaser will rely upon the accuracy and truth of the foregoing representations obligations under this Agreement and the Initial Purchaser hereby consents to such relianceRegistration Rights Agreement and each of this Agreement and the Registration Rights Agreement has been duly and validly authorized by it.
Appears in 1 contract
Representations and Warranties of the Initial Purchaser. The Initial Purchaser represents and warrants to, and agrees with, the Company that:
(a) The Initial Purchaser It is either a QIB or an Accredited Institution with such knowledge as defined in Rule 144A under the Act and experience it will offer the Units for resale only upon the terms and conditions set forth in financial this Agreement and business matters as are necessary in order to evaluate the merits and risks of an investment in the Series A NotesFinal Offering Circular.
(b) The Initial Purchaser (i) It is not acquiring the Series A Notes Units with a view to any distribution thereof or with any present intention of offering or selling any of the Series A Notes in a transaction that would violate the Act or the securities laws of any State state of the United States or any other applicable jurisdiction jurisdiction. In connection with the Exempt Resales, it will solicit offers to buy the Units only from, and will offer and sell the Units only to, (iiA) persons reasonably believed by the Initial Purchaser to be QIBs or (B) persons reasonably believed by the Initial Purchaser to be Accredited Investors or (C) non-U.S. persons reasonably believed by the Initial Purchaser to be a purchaser referred to in the Final Canadian Offering Memorandum under the caption "Representation and Agreement by Purchasers" and in the manner and in compliance with the conditions therein set forth, and, in connection with each such sale, it will be reoffering and reselling take reasonable steps to ensure that the Series A Notes only to QIBs purchaser of such Units is aware that such sale is being made in reliance on the exemption from the registration requirements of the Act provided by Rule 144A or Regulation S or, in Canada, on a private placement basis and acknowledge that the Units may be subject to a limited number of Accredited Institutions resale restrictions under Canadian securities laws; PROVIDED, HOWEVER, that execute in purchasing such Units, such persons are deemed to have represented and deliver a letter containing certain representations and agreements agreed as provided under the caption "Notice to Investors" contained in the form attached as Annex A to Final Offering Circular and under the caption "Representation and Agreement by Purchasers" in the Final Canadian Offering CircularMemorandum.
(c) The Initial Purchaser agrees that no No form of general solicitation or general advertising (within in violation of the meaning of Regulation D under the Act) Act or Canadian securities laws has been or will be used nor will any offers in any manner involving a public offering within the meaning of Section 4(2) of the Act or, with respect to Units to be sold in reliance on Regulation S, by the means of any directed selling efforts be made by such Initial Purchaser or any of its representatives in connection with the offer and sale of any of the Series A Notes pursuant hereto, including, but not limited to, articles, notices or other communications published in any newspaper, magazine or similar medium, or broadcast over television or radio, or transmitted over the internet, or communicated in any seminar or meeting whose attendees have been invited by any general solicitation or general advertisingUnits.
(d) The Initial Purchaser agrees thatwill deliver to each Subsequent Purchaser of the Units, in connection with Exempt Resales, it will solicit offers to buy its original distribution of the Series A Notes only from, and will offer to sell the Series A Notes only to, Eligible Purchasers. The Initial Purchaser further agrees that it will offer to sell the Series A Notes only to, and will solicit offers to buy the Series A Notes only from (i) Eligible Purchasers that the Initial Purchaser reasonably believes are QIBs and (ii) Accredited Institutions who make the representations contained in, and execute and return to the Initial PurchaserUnits, a certificate copy of the Final Offering Circular (and in Canada, the form of Annex A attached to the Final Canadian Offering Circular, in each case, that agree that (A) the Series A Notes purchased by them may be resold, pledged or otherwise transferred within the time period referred to under Rule 144(k) (taking into account the provisions of Rule 144(d) under the Act, if applicable) under the ActMemorandum), as in effect on amended and supplemented at the date of the transfer of such Series A Notes, only (1) to the Company, (2) to a person whom the seller reasonably believes is a QIB purchasing for its own account or for the account of a QIB in a transaction meeting the requirements of Rule 144A under the Act, (3) in an offshore transaction (as defined in Rule 902 under the Act) meeting the requirements of Rule 904 of the Act, (4) in a transaction meeting the requirements of Rule 144 under the Act, (5) to an Accredited Institution that, prior to such transfer, furnishes the Trustee a signed letter containing certain representations and agreements relating to the registration of transfer of such Series A Note (the form of which is substantially the same as Annex A to the Offering Circular) and, if such transfer is in respect of an aggregate principal amount of Series A Notes less than $250,000, an opinion of counsel acceptable to the Company that such transfer is in compliance with the Act, (6) in accordance with another exemption from the registration requirements of the Act (and based upon an opinion of counsel acceptable to the Company) or (7) pursuant to an effective registration statement and, in each case, in accordance with the applicable securities laws of any state of the United States or any other applicable jurisdiction and (B) they will deliver to each person to whom such Series A Notes or an interest therein is transferred a notice substantially to the effect of the foregoingdelivery.
(e) None of such Initial Purchaser nor any of its affiliates or any person acting on its or their behalf has engaged or will engage in any directed selling efforts within the meaning of Regulation S with respect to the Series A Notes. The Initial Purchaser acknowledges that the Company and, for purposes of the opinions to be delivered to the Initial Purchaser pursuant to Section 10 hereof, counsel to the Company and counsel to the Initial Purchaser will rely upon the accuracy and truth of the foregoing representations and the Initial Purchaser hereby consents to such reliance.
Appears in 1 contract
Sources: Purchase Agreement (Hockey Co)
Representations and Warranties of the Initial Purchaser. The Initial Purchaser hereby represents and warrants to, and agrees with, with the Company that:
(a) The that the Initial Purchaser (i) is either a QIB or an Accredited Institution institutional "accredited investor" (as defined in Regulation D) with such knowledge and experience in financial and business matters as are necessary in order to evaluate the merits and risks of an investment in the Series A Notes.
Securities; (b) The Initial Purchaser (iii) is not acquiring the Series A Notes Securities with a view to any distribution thereof or with any present intention of offering or selling any of the Series A Notes in a transaction that would violate the Securities Act or the securities or blue sky laws of any State state or country, (iii) has received all information it considers necessary to evaluate the merits and risks of the United States or any other applicable jurisdiction and (ii) will be reoffering and reselling the Series A Notes only to QIBs in reliance on the exemption from the registration requirements of the Act provided by Rule 144A and to a limited number of Accredited Institutions that execute and deliver a letter containing certain representations and agreements an investment in the form attached as Annex A Securities, (iv) has not and will not solicit offers for, or offer to sell, the Offering Circular.
(c) The Initial Purchaser agrees that no Securities by means of any form of general solicitation or general advertising (within the meaning of Regulation D Rule 502(c) under the Securities Act, or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act; and (v) has been or will be used by the Initial Purchaser or any of its representatives in connection with the offer and sale of any of the Series A Notes pursuant hereto, including, but not limited to, articles, notices or other communications published in any newspaper, magazine or similar medium, or broadcast over television or radio, or transmitted over the internet, or communicated in any seminar or meeting whose attendees have been invited by any general solicitation or general advertising.
(d) The Initial Purchaser agrees that, in connection with Exempt Resales, it will solicit offers to buy for the Series A Notes Securities only from, and will offer offer, sell or deliver the Securities, as part of their initial offering, only to sell persons in the Series A Notes United States it reasonably believes to be QIBs to whom notice has been given that such sale or delivery is being made in reliance on Rule 144A or, if any such person is buying for one or more institutional accounts for which such person is acting as fiduciary or agent, only to, Eligible Purchasers. when such person has represented to the Initial Purchaser that each such account
is a QIB to whom notice has been given that such sale or delivery is being made in reliance on Rule 144A. The Initial Purchaser further agrees that it will offer to sell the Series A Notes only to, and will solicit offers to buy the Series A Notes only from (i) Eligible Purchasers that the Initial Purchaser reasonably believes are QIBs and (ii) Accredited Institutions who make the representations contained in, and execute and return to the Initial Purchaser, a certificate in the form of Annex A attached to the Offering Circular, in each case, that agree that (A) the Series A Notes purchased by them may be resold, pledged or otherwise transferred within the time period referred to under Rule 144(k) (taking into account the provisions of Rule 144(d) under the Act, if applicable) under the Act, as in effect on the date of the transfer of such Series A Notes, only (1) to the Company, (2) to a person whom the seller reasonably believes is a QIB purchasing for its own account or for the account of a QIB in a transaction meeting the requirements of Rule 144A under the Act, (3) in an offshore transaction (as defined in Rule 902 under the Act) meeting the requirements of Rule 904 of the Act, (4) in a transaction meeting the requirements of Rule 144 under the Act, (5) to an Accredited Institution that, prior to such transfer, furnishes the Trustee a signed letter containing certain representations and agreements relating to the registration of transfer of such Series A Note (the form of which is substantially the same as Annex A to the Offering Circular) and, if such transfer is in respect of an aggregate principal amount of Series A Notes less than $250,000, an opinion of counsel acceptable to the Company that such transfer is in compliance with the Act, (6) in accordance with another exemption from the registration requirements of the Act (and based upon an opinion of counsel acceptable to the Company) or (7) pursuant to an effective registration statement and, in each case, in accordance with the applicable securities laws of any state of the United States or any other applicable jurisdiction and (B) they will deliver to each person to whom such Series A Notes or an interest therein is transferred a notice substantially to the effect of the foregoing.
(e) None of such Initial Purchaser nor any of its affiliates or any person acting on its or their behalf has engaged or will engage in any directed selling efforts within the meaning of Regulation S with respect to the Series A Notes. The Initial Purchaser acknowledges that the Company and, for purposes of the opinions to be delivered to the Initial Purchaser pursuant to Section 10 hereofhereto, counsel to the Company and counsel to the Initial Purchaser will rely upon the accuracy and truth of the foregoing representations and the Initial Purchaser (ii) hereby consents to such reliance.
Appears in 1 contract
Representations and Warranties of the Initial Purchaser. The Initial Purchaser represents and warrants to, and agrees with, the Company that:
(a) The Initial Purchaser It is either a QIB or an Accredited Institution with such knowledge and experience in financial and business matters as are necessary in order to evaluate the merits and risks of an investment in the Series A NotesQIB.
(b) The Initial Purchaser It (i) is not acquiring the Series A Notes Units with a view to any distribution thereof or with any present intention of offering or selling any of the Series A Notes in a transaction that would violate the Act or the securities laws of any State state of the United States or any other applicable jurisdiction jurisdiction, and (ii) will be soliciting offers for the Units only from, and will be reoffering and reselling the Series A Notes Units only to (A) persons in the United States whom it reasonably believes to be QIBs in reliance on the exemption from the registration requirements of the Act provided by Rule 144A and to or (B) a limited number of Accredited Institutions Investors that execute and deliver to each of the Issuers and the Initial Purchaser a letter containing certain representations and agreements in the form attached as Annex A to the Offering Circular.
(c) The Initial Purchaser agrees that no No form of general solicitation or general advertising (within in violation of the meaning of Regulation D under the Act) Act has been or will be used by the such Initial Purchaser or any of its representatives in connection with the offer and sale of any of the Series A Notes pursuant hereto, including, but not limited to, articles, notices or other communications published in any newspaper, magazine or similar medium, or broadcast over television or radio, or transmitted over the internet, or communicated in any seminar or meeting whose attendees have been invited by any general solicitation or general advertisingUnits.
(d) The Initial Purchaser agrees that, in In connection with the Exempt Resales, it will solicit offers to buy the Series A Notes Units only from, and will offer and sell the Units only to, Eligible Initial Purchasers who, in purchasing such Units, will be deemed to sell have represented and agreed (i) if such Eligible Initial Purchasers are QIBs, that they are purchasing the Units for their own accounts or accounts with respect to which they exercise sole investment discretion and that they or such accounts are QIBs, (ii) that the Units, the Series A Notes only to, Eligible Purchasers. The Initial Purchaser further agrees that it and the Convertible Preferred Membership Interests will offer to sell not have been registered under the Series A Notes only to, Act and will solicit offers to buy the Series A Notes only from (i) Eligible Purchasers that the Initial Purchaser reasonably believes are QIBs and (ii) Accredited Institutions who make the representations contained in, and execute and return to the Initial Purchaser, a certificate in the form of Annex A attached to the Offering Circular, in each case, that agree that (A) the Series A Notes purchased by them may be resold, pledged or otherwise transferred within transferred, prior to the time date that is two years (or such other period referred to that may hereafter be provided under Rule 144(k) as permitting resales of restricted securities by non-affiliates without restriction) after the later of the original issue date of the Units and the last date on which any of the Issuers or any of their respective affiliates was the owner of the Units, the Series A Notes and the Convertible Preferred Membership Interests only (taking into account A) to the provisions of Rule 144(dIssuers, (B) pursuant to a registration statement which has been declared effective under the Act, if applicable(C) for so long as the Units, the Series A Notes and the Convertible Preferred Membership Interests are eligible for resale pursuant to Rule 144A under the Act, as in effect on the date of the transfer of such Series A Notes, only (1) to the Company, (2) to a person whom who the seller reasonably believes is a QIB purchasing that purchases for its own account or for the account of a QIB to whom notice is given that the transfer is being made in a transaction meeting reliance on Rule 144A, (D) to an institutional "accredited investor" within the requirements meaning of Rule 144A under the Actsubparagraph (a)( 1), (2), (3) in an offshore transaction or (as defined in 7) of Rule 902 501 under the Act) meeting Act that is acquiring the requirements Units for its own account or the account of Rule 904 such an institutional "accredited investor," for investment purposes and not with a view to, or for offer or sale in connection with, any distribution in violation of the Act, Act or (4E) in a transaction meeting the requirements of Rule 144 under the Act, (5) pursuant to an Accredited Institution that, prior to such transfer, furnishes the Trustee a signed letter containing certain representations and agreements relating to the registration of transfer of such Series A Note (the form of which is substantially the same as Annex A to the Offering Circular) and, if such transfer is in respect of an aggregate principal amount of Series A Notes less than $250,000, an opinion of counsel acceptable to the Company that such transfer is in compliance with the Act, (6) in accordance with another available exemption from the registration requirements of the Act Act, and (iii) that the holder will, and based upon an opinion of counsel acceptable to the Company) or (7) pursuant to an effective registration statement andeach subsequent holder is required to, in each case, in accordance with the applicable securities laws of notify any state purchaser from it of the United States or any other applicable jurisdiction and (B) they will deliver to each person to whom such Series A Notes or an interest therein is transferred a notice substantially to the effect security evidenced thereby of the foregoingresale restrictions set forth in (ii) above.
(e) None of such Initial Purchaser nor any of It has all requisite power and authority to enter into, deliver and perform its affiliates or any person acting on its or their behalf has engaged or will engage in any directed selling efforts within the meaning of Regulation S with respect to the Series A Notes. The Initial Purchaser acknowledges that the Company and, for purposes of the opinions to be delivered to the Initial Purchaser pursuant to Section 10 hereof, counsel to the Company and counsel to the Initial Purchaser will rely upon the accuracy and truth of the foregoing representations obligations under this Agreement and the Initial Purchaser hereby consents to such relianceRegistration Rights Agreement and each of this Agreement and the Registration Rights Agreement has been duly authorized by it.
Appears in 1 contract
Representations and Warranties of the Initial Purchaser. The Initial Purchaser individually represents and warrants to, and agrees with, the Company that:
(a) The Initial Purchaser It is either a QIB or an Accredited Institution with such knowledge and experience as defined in financial and business matters as are necessary in order to evaluate Rule 144A under the merits and risks of an investment in the Series A NotesAct.
(b) The Initial Purchaser (i) It is not acquiring the Series A Notes Units with a view to any distribution thereof or with any present intention of offering or selling any of the Series A Notes in a transaction that would violate the Act or the securities laws of any State of the United States or any other applicable jurisdiction and (ii) will be reoffering and reselling the Series A Notes only to QIBs in reliance on the exemption from the registration requirements of the Act provided by Rule 144A and to a limited number of Accredited Institutions that execute and deliver a letter containing certain representations and agreements in the form attached as Annex A to the Offering Circular.
(c) The Initial Purchaser agrees that no form of general solicitation or general advertising (within the meaning of Regulation D under the Act) has been or will be used by the Initial Purchaser or any of its representatives in connection with the offer and sale of any of the Series A Notes pursuant hereto, including, but not limited to, articles, notices or other communications published in any newspaper, magazine or similar medium, or broadcast over television or radio, or transmitted over the internet, or communicated in any seminar or meeting whose attendees have been invited by any general solicitation or general advertising.
(d) The Initial Purchaser agrees that, in connection with Exempt Resales, it will solicit offers to buy the Series A Notes only from, and will offer to sell the Series A Notes only to, Eligible Purchasers. The Initial Purchaser further agrees that it will offer to sell the Series A Notes only to, and will solicit offers to buy the Series A Notes only from (i) Eligible Purchasers that the Initial Purchaser reasonably believes are QIBs and (ii) Accredited Institutions who make the representations contained in, and execute and return to the Initial Purchaser, a certificate in the form of Annex A attached to the Offering Circular, in each case, that agree that (A) the Series A Notes purchased by them may be resold, pledged or otherwise transferred within the time period referred to under Rule 144(k) (taking into account the provisions of Rule 144(d) under the Act, if applicable) under the Act, as in effect on the date of the transfer of such Series A Notes, only (1) to the Company, (2) to a person whom the seller reasonably believes is a QIB purchasing for its own account or for the account of a QIB in a transaction meeting the requirements of Rule 144A under the Act, (3) in an offshore transaction (as defined in Rule 902 under the Act) meeting the requirements of Rule 904 of the Act, (4) in a transaction meeting the requirements of Rule 144 under the Act, (5) to an Accredited Institution that, prior to such transfer, furnishes the Trustee a signed letter containing certain representations and agreements relating to the registration of transfer of such Series A Note (the form of which is substantially the same as Annex A to the Offering Circular) and, if such transfer is in respect of an aggregate principal amount of Series A Notes less than $250,000, an opinion of counsel acceptable to the Company that such transfer is in compliance with the Act, (6) in accordance with another exemption from the registration requirements of the Act (and based upon an opinion of counsel acceptable to the Company) or (7) pursuant to an effective registration statement and, in each case, in accordance with the applicable securities laws of any state of the United States or any other applicable jurisdiction jurisdiction.
(c) In connection with any resale of the Units (other than pursuant to an effective registration statement under the Act) it will solicit offers to buy the Units only from, and will offer and sell the Units only to, QIBs who, in purchasing such Units, will be deemed to have represented and agreed:
(i) it is purchasing the Units for its own accounts or accounts,
(ii) that the Units, the Series A Notes and the Warrants will not have been registered under the Act and may be resold, pledged or otherwise transferred, prior to the date that is two years (or such other period that may hereafter be provided under Rule 144(k) as permitting resales of restricted securities by nonaffiliates without restriction) after the later of the original issue date of the Units and the last date on which either of the Issuers or any of their respective Affiliates was the owner of the Units, Series A Notes and the Warrants only (A) to either of the Issuers, (B) they will deliver pursuant to each person to whom such a registration statement which has been declared effective under the Act, (C) for so long as the Units, the Series A Notes and the Warrants are eligible for resale pursuant to an exemption under the Act, to a person who the seller reasonably believes is a QIB that purchases for its own account or the account of a QIB to whom notice is given that the transfer is being made in reliance on an interest therein is transferred a notice substantially exemption under the Act, or (D) pursuant to another available exemption from the effect registration requirements of the foregoingAct, and
(iii) that the holder will, and each subsequent holder is required to, notify any purchaser from it of the security evidenced thereby of the resale restrictions set forth in (ii) above.
(ed) None of such Initial Purchaser nor any of It has all requisite power and authority to enter into, deliver and perform its affiliates or any person acting on its or their behalf has engaged or will engage in any directed selling efforts within obligations under this Agreement, the meaning of Regulation S with respect to the Series A Notes. The Initial Purchaser acknowledges that the Company and, for purposes of the opinions to be delivered to the Initial Purchaser pursuant to Section 10 hereof, counsel to the Company and counsel to the Initial Purchaser will rely upon the accuracy and truth of the foregoing representations Note Registration Rights Agreement and the Initial Purchaser hereby consents to such relianceWarrant Registration Rights Agreement and each of this Agreement, the Note Registration Rights Agreement and the Warrant Registration Rights Agreement has been duly authorized by it.
Appears in 1 contract
Representations and Warranties of the Initial Purchaser. The Initial Purchaser represents and warrants to, and agrees with, the Company Issuers and Parent that:
(a) The Initial Purchaser is either a QIB or an Accredited Institution with such knowledge and experience in financial and business matters as are necessary in order to evaluate the merits and risks of an investment in the Series A Notes.
(b) The Initial Purchaser (i) is not acquiring the Series A Notes with a view to any distribution thereof or with any present intention of offering or selling any of the Series A Notes in a transaction that would violate the Act or the securities laws of any State of the United States or any other applicable jurisdiction and (ii) will be reoffering and reselling the Series A Notes only to QIBs in reliance on the exemption from the registration requirements of the Act provided by Rule 144A and under the Act, to a limited number of Accredited Institutions that execute and deliver a letter containing certain representations and agreements in the form attached as Annex A to the Offering Circular.Circular and/or in offshore transactions meeting the requirements of Regulation S.
(c) The Initial Purchaser agrees that no form of general solicitation or general advertising (within the meaning of Regulation D under the Act) has been or will be used by the Initial Purchaser or any of its representatives in connection with the offer and sale of any of the Series A Notes pursuant hereto, including, but not limited to, articles, notices or other communications published in any newspaper, magazine or similar medium, or broadcast over television or radio, or transmitted over the internet, or communicated in any seminar or meeting whose attendees have been invited by any general solicitation or general advertising.
(d) The Initial Purchaser agrees that, in connection with Exempt Resales, it they will solicit offers to buy the Series A Notes only from, and will offer to sell the Series A Notes only to, Eligible Purchasers. The Initial Purchaser further agrees that it they will offer to sell the Series A Notes only to, and will solicit offers to buy the Series A Notes only from (i) Eligible Purchasers that the Initial Purchaser reasonably believes are (i) QIBs and (ii) Accredited Institutions who make the representations contained in, and execute and return to the Initial Purchaser, a certificate in the form of Annex A attached to the Offering CircularCircular and (iii) persons outside the United States in offshore transactions meeting the requirements of Regulation S, in each case, that agree that (A) the Series A Notes purchased by them may be resold, pledged or otherwise transferred within the time period referred to under Rule 144(k) (taking into account the provisions of Rule 144(d) under the Act, if applicable) under the Act, as in effect on the date of the transfer of such Series A Notes, only (1) to the CompanyIssuers, (2) to a person whom the seller reasonably believes is a QIB purchasing for its own account or for the account of a QIB in a transaction meeting the requirements of Rule 144A under the Act, (3) in an offshore transaction (as defined in Rule 902 under the Act) meeting the requirements of Rule 904 of the Act, (4) in a transaction meeting the requirements of Rule 144 under the Act, (54) to an Accredited Institution that, prior to such transfer, furnishes the Trustee a signed letter containing certain representations and agreements relating to the registration of transfer of such Series A Note (the form of which is substantially the same as Annex A to the Offering Circular) and, if such transfer is in respect of an aggregate principal amount of Series A Notes less than $250,000, based upon an opinion of counsel acceptable to Service, (5) outside the Company that such transfer is United States to a Non-U.S. Person in compliance with a transaction meeting the Act, requirements of Rule 904 under the Securities Act (6) in accordance with another exemption from the registration requirements of the Act (and based upon an opinion of counsel acceptable to the Company) Service or (7) pursuant to an effective registration statement and, in each case, in accordance with the applicable securities laws of any state of the United States or any other applicable jurisdiction and (B) they will deliver to each person to whom such Series A Notes or an interest therein is transferred a notice substantially to the effect of the foregoing.
(e) None of such Neither the Initial Purchaser nor any of its affiliates or any person acting on its or their behalf has engaged or will engage in any directed selling efforts within the meaning of Regulation S with respect to the Series A Notes to be sold in reliance on Regulation S.
(f) The sale of the Series A Notes offered and sold by the Initial Purchaser pursuant hereto in reliance on Regulation S is not part of a plan or scheme to evade the registration provisions of the Act.
(g) The Initial Purchaser agrees that the Series A Notes have not been registered under the Act or any state securities laws and that neither the Initial Purchaser nor its affiliates have offered or sold and will not offer or sell the Series A Notes in the United States or to, or for the benefit or account of, a U.S. Person (other than a distributor) (a) as part of its distribution at any time and (b) otherwise until 40 days after the later of the commencement of the offering of the Series A Notes pursuant hereto and the Closing Date (the "distribution compliance period"), other than in accordance with Regulation S or another exemption from the registration requirements of the Act. The Initial Purchaser agrees that, during such 40-day distribution compliance period, they will not cause any advertisement with respect to the Series A Notes (including any "tombstone" advertisement) to be published in any newspaper or periodical or posted in any public place and will not issue any circular relating to the Series A Notes, except such advertisements as permitted by and including the statements required by Regulation S. The Initial Purchaser also agrees that, at or prior to confirmation of a sale of Series A Notes offered and sold pursuant to Regulation S, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration in respect of the Series A Notes from it during the restricted period a confirmation or notice substantially to the following effect: "PRIOR TO EXPIRATION OF THE 40-DAY DISTRIBUTION COMPLIANCE PERIOD (AS DEFINED IN REGULATION S ("REGULATION S") UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT")), THIS SECURITY MAY NOT BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES (AS DEFINED IN REGULATION S) OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, A U.S. PERSON (AS DEFINED IN REGULATION S), EXCEPT TO A PERSON REASONABLY BELIEVED TO BE A "QUALIFIED INSTITUTIONAL BUYER" (AD DEFINED IN RULE 144A ("RULE 144A") UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A AND THE INDENTURE REFERRED TO HEREIN OR TO AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2), (3) or (7) OF REGULATION D UNDER THE SECURITIES ACT). The Initial Purchaser acknowledges that the Company Issuers and Parent and, for purposes of the opinions to be delivered to the Initial Purchaser pursuant to Section 10 hereof9, counsel to the Company Issuers and Parent and counsel to the Initial Purchaser will rely upon the accuracy and truth of the foregoing representations and the Initial Purchaser hereby consents to such reliance.
Appears in 1 contract
Sources: Purchase Agreement (Interdent Inc)
Representations and Warranties of the Initial Purchaser. The Initial ------------------------------------------------------- Purchaser represents and warrants to, and agrees with, to the Company that:
(a) The Initial Purchaser It is either a QIB or an Accredited Institution Qualified Institutional Buyer with such knowledge and experience in financial and business matters as are necessary in order to evaluate the merits and risks of an investment in the Series A Notes. It is acquiring its interest in the Notes for its own account as principal for the purpose of investment and not with a view to the distribution or resale thereof, except resales in compliance with the registration requirements or exemption provisions of the Act and that neither it, nor anyone acting on its behalf, will offer the Notes so as to bring the issuance and sale of the Notes within the provisions of Section 5 of the Act.
(b) The Initial Purchaser (i1) is not acquiring the Series A Notes with a view to any distribution thereof or with any present intention of offering or selling any of the Series A Notes in a transaction that would violate the Act or the securities laws of any State state of the United States or any other applicable jurisdiction and jurisdiction, (ii2) will be reoffering re-offering and reselling the Series A Notes only to QIBs Qualified Institutional Buyers in reliance on the exemption from the registration requirements of the Act provided by Rule 144A under the Act and to a limited number outside the United States in reliance on Regulation S of Accredited Institutions that execute the Act, and deliver a letter containing certain representations and agreements in the form attached as Annex A to the Offering Circular.
(c3) The Initial Purchaser agrees that has used no form of general solicitation or general advertising (within the meaning of Regulation D under the Act) has been or will be used by the Initial Purchaser or any of its representatives in connection with the offer and sale of any of the Series A Notes pursuant hereto, including, but not limited to, articles, notices or other communications published in any newspaper, magazine or similar medium, or broadcast over television or radio, or transmitted over the internet, or communicated in any seminar or meeting whose attendees have been invited by any general solicitation or general advertisingNotes.
(dc) The Initial Purchaser agrees that, in In connection with the Exempt Resales, it the Initial Purchaser will solicit offers to buy the Series A Notes only from, and will offer to sell the Series A Notes only to, the Eligible Purchasers. The Initial Purchaser further agrees that it will offer to sell the Series A Notes only to, and will solicit offers to buy the Series A Notes only from from, persons who in purchasing such Notes will be deemed to have represented and agreed that (i1) if such Eligible Purchasers Purchaser is a Qualified Institutional Buyer, it is purchasing the Notes for its own account or an account with respect to which it exercises sole investment discretion and it or such accounts are Qualified Institutional Buyers, (2) such Notes have not been registered under the Act or any securities laws of any jurisdiction and that the Initial Purchaser reasonably believes are QIBs and (ii) Accredited Institutions who make the representations contained in, and execute and return to the Initial Purchaser, a certificate in the form of Annex A attached to the Offering Circular, in each case, that agree that (A) the Series A Notes purchased by them may be offered, resold, pledged or otherwise transferred within the time period referred to under Rule 144(k) (taking into account the provisions of Rule 144(d) under the Act, if applicable) under the Act, as in effect on the date of the transfer of such Series A Notes, only (1) to the Company, (2i) to a person whom who the seller reasonably believes is a QIB purchasing for its own account or for the account of a QIB Qualified Institutional Buyer in a transaction meeting the requirements of Rule 144A under the Act144A, (3) in an offshore transaction (as defined in Rule 902 under the Act) meeting the requirements of Rule 904 of the Act, (4) in a transaction meeting the requirements of Rule 144 144, outside the United States to a non-U.S. person in a transaction meeting the requirements of Rule 904 under the Act, (5) to an Accredited Institution institutional "accredited investor" (as defined in Rule 501(a)(1), (2), (3) or (7) of the Act), that, prior to such transfer, furnishes the Trustee a signed letter containing certain representations and agreements relating to the registration of transfer of such Series A Note (the form of which is substantially the same as Annex A to the Offering Circular) and, if such transfer is in respect of an aggregate principal amount of Series A Notes less than $250,000100,000, an opinion of counsel acceptable to the Company that such transfer is in compliance with the Act, (6) or in accordance with another exemption from the registration requirements of the Act (and based upon an opinion of counsel acceptable if the Company so requests), (ii) to the Company) or , (7iii) pursuant to an effective registration statement and, in each case, in accordance with the any applicable securities laws of any state of the United States or any other applicable jurisdiction jurisdiction, (3) such Eligible Purchaser will, and each subsequent holder will be required to, notify any purchaser of any security from it of the resale restrictions set forth in (2) above, and (B4) they the Notes acquired by such Eligible Purchasers in certificated form will deliver to each person to whom such Series A Notes or an interest therein is transferred a notice substantially to bear the effect legends set forth in the preamble of the foregoing.
(e) None of such Initial Purchaser nor any of its affiliates or any person acting on its or their behalf has engaged or will engage in any directed selling efforts within the meaning of Regulation S with respect to the Series A Notesthis Agreement. The Initial Purchaser acknowledges also understands that the Company and, for purposes of the opinions to be delivered to the Initial Purchaser pursuant to Section 10 Sections -------- 6(d) and 6(e) hereof, counsel to the Company and counsel to the Initial Purchaser ------------- Purchaser, will rely upon the accuracy and truth of the foregoing representations and agreements and the Initial Purchaser hereby consents to such reliance.
Appears in 1 contract
Representations and Warranties of the Initial Purchaser. The Initial Purchaser represents and warrants to, and agrees with, to the Company thatand the Guarantors that as of the date hereof and as of the Closing Date:
(a) The Initial Purchaser It is either a QIB or an Accredited Institution QIB, with such knowledge and experience in financial and business matters as are necessary in order to evaluate the merits and risks of an investment in the Series A NotesNotes and the Initial Purchaser acknowledges that it is purchasing the Notes pursuant to a private sale exempt from registration under the Act and that the Notes have not been registered under the Act. It will offer the Notes for resale only upon the terms and conditions set forth in this Agreement and in the Final Offering Circular.
(b) The Initial Purchaser (i) It is not acquiring the Series A Notes with a view to any distribution thereof or with any present intention of offering or selling any of the Series A Notes in a transaction that would violate the Act or the securities laws of any State of the United States or any other applicable jurisdiction and (ii) will be reoffering and reselling the Series A Notes only to QIBs in reliance on the exemption from the registration requirements of the Act provided by Rule 144A and to a limited number of Accredited Institutions that execute and deliver a letter containing certain representations and agreements in the form attached as Annex A to the Offering Circular.
(c) The Initial Purchaser agrees that no form of general solicitation or general advertising (within the meaning of Regulation D under the Act) has been or will be used by the Initial Purchaser or any of its representatives in connection with the offer and sale of any of the Series A Notes pursuant hereto, including, but not limited to, articles, notices or other communications published in any newspaper, magazine or similar medium, or broadcast over television or radio, or transmitted over the internet, or communicated in any seminar or meeting whose attendees have been invited by any general solicitation or general advertising.
(d) The Initial Purchaser agrees that, in connection with Exempt Resales, it will solicit offers to buy the Series A Notes only from, and will offer to sell the Series A Notes only to, Eligible Purchasers. The Initial Purchaser further agrees that it will offer to sell the Series A Notes only to, and will solicit offers to buy the Series A Notes only from (i) Eligible Purchasers that the Initial Purchaser reasonably believes are QIBs and (ii) Accredited Institutions who make the representations contained in, and execute and return to the Initial Purchaser, a certificate in the form of Annex A attached to the Offering Circular, in each case, that agree that (A) the Series A Notes purchased by them may be resold, pledged or otherwise transferred within the time period referred to under Rule 144(k) (taking into account the provisions of Rule 144(d) under the Act, if applicable) under the Act, as in effect on the date of the transfer of such Series A Notes, only (1) to the Company, (2) to a person whom the seller reasonably believes is a QIB purchasing for its own account or for the account of a QIB in a transaction meeting the requirements of Rule 144A under the Act, (3) in an offshore transaction (as defined in Rule 902 under the Act) meeting the requirements of Rule 904 of the Act, (4) in a transaction meeting the requirements of Rule 144 under the Act, (5) to an Accredited Institution that, prior to such transfer, furnishes the Trustee a signed letter containing certain representations and agreements relating to the registration of transfer of such Series A Note (the form of which is substantially the same as Annex A to the Offering Circular) and, if such transfer is in respect of an aggregate principal amount of Series A Notes less than $250,000, an opinion of counsel acceptable to the Company that such transfer is in compliance with the Act, (6) in accordance with another exemption from the registration requirements of the Act (and based upon an opinion of counsel acceptable to the Company) or (7) pursuant to an effective registration statement and, in each case, in accordance with the applicable securities laws of any state of the United States or any other applicable jurisdiction jurisdiction. It will solicit offers to buy the Notes only from, and will offer and sell the Notes only to, (A) persons reasonably believed by the Initial Purchaser to be QIBs or (B) they will deliver persons reasonably believed by the Initial Purchaser to each person be Accredited Investors or (C) non-U.S. persons reasonably believed by the Initial Purchaser to whom be a purchaser referred to in Regulation S under the Act ("Regulation S"); provided, however, that in purchasing such Series A Notes or an interest therein is transferred a notice substantially Notes, such persons are deemed to have represented and agreed as provided under the effect of caption "Notice to Investors" contained in the foregoingFinal Offering Circular.
(ec) None No form of such Initial Purchaser general solicitation or general advertising in violation of the Act has been or will be used nor will any offers in any manner involving a public offering within the meaning of Section 4(2) of the Act.
(d) With respect to offers and sales outside the United States, it has offered the Notes and will offer and sell the Notes (1) as part of its affiliates distribution at any time and (2) otherwise until 40 days after the later of the commencement of the offering of the Notes and the Closing Date, only in accordance with Rule 903 of Regulation S or another exemption from the registration requirements of the Act. Accordingly, neither it nor any person acting on its or their behalf has engaged or will engage in any "directed selling efforts within the meaning of efforts" (as defined in Regulation S S) with respect to the Series A Notes. , and any such persons have complied and will comply with the offering restrictions requirements of Regulation S.
(e) The Initial Purchaser acknowledges that the Company andagrees that, for purposes at or prior to confirmation of a sale of the opinions to be delivered to the Initial Purchaser Notes pursuant to Section 10 hereofRegulation S, counsel it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Notes from it or through it during the Company restricted period a confirmation or notice to substantially the following effect: "The Securities covered hereby have not been registered under the United States Securities Act of 1933, as amended (the "Securities Act"), and counsel may not be offered or sold within the United States or to or for the account or benefit of, U.S. persons (i) as part of their distribution at any time and (ii) otherwise until forty days after the later of the date upon which the offering of the Securities commenced and the date of closing, except in either case in accordance with Regulation S or Rule 144A under the Securities Act. Terms used above have the meaning given to them by such Regulation S." (f) The Initial Purchaser will rely upon the accuracy and truth deliver to each Subsequent Purchaser of the foregoing representations Notes the form of the Investor Letter and, in connection with its original distribution of the Notes, a copy of the Final Offering Circular, as amended and supplemented at the Initial Purchaser hereby consents to date of such reliancedelivery.
Appears in 1 contract
Sources: Purchase Agreement (Edgen Corp)
Representations and Warranties of the Initial Purchaser. The Initial Purchaser represents and warrants to, and agrees with, the Company that:
(a) The Neither the Initial Purchaser is either a QIB nor any affiliate (as defined in Regulation D) of the Initial Purchaser nor anyone acting on their behalf has, directly or an Accredited Institution with such knowledge indirectly, sold or offered, or attempted to offer or sell, or solicited any offers to buy, or otherwise approached or negotiated in respect of, any of the Purchased Notes and experience in financial and business matters as are necessary in order to evaluate neither the merits and risks Initial Purchaser nor any of an investment in its affiliates will do any of the Series A Notesforegoing.
(b) The Initial Purchaser hereby represents and warrants to and agrees with the Trust, that (i) it is not acquiring a QIB, (ii) it will offer the Series A Purchased Notes only (A) to persons who it reasonably believes are QIBs in transactions meeting the requirements of Rule 144A, (B) to institutional investors who it reasonably believes are Institutional Accredited Investors or (C) in offshore transactions in accordance with a view Regulation S. The Initial Purchaser further agrees that it will (i) deliver to any distribution thereof or with any present intention of offering or selling any each purchaser of the Series A Notes in Purchased Notes, at or prior to the Time of Sale, a transaction that would violate the Act or the securities laws of any State copy of the United States Time of Sale Information, as then amended or any other applicable jurisdiction supplemented, which Time of Sale Information will include a Notice to Investors in the form attached hereto as Exhibit A, and (ii) will be reoffering and reselling the Series A Notes only prior to QIBs in reliance on the exemption from the registration requirements any sale of the Act provided by Rule 144A and Purchased Notes to an Institutional Accredited Investor that it does not reasonably believe is a limited number of QIB, it will receive from such Institutional Accredited Institutions that execute and deliver Investor a letter containing certain representations and agreements written certification in substantially the form attached as Annex A Exhibit D-1 to the Offering CircularIndenture.
(c) The Initial Purchaser agrees hereby represents that no form of general solicitation or general advertising (within it is duly authorized and possesses the meaning of Regulation D under the Act) has been or will be used by the Initial Purchaser or any of its representatives in connection with the offer and sale of any of the Series A Notes pursuant hereto, including, but not limited to, articles, notices or other communications published in any newspaper, magazine or similar medium, or broadcast over television or radio, or transmitted over the internet, or communicated in any seminar or meeting whose attendees have been invited by any general solicitation or general advertisingrequisite corporate power to enter into this Agreement.
(d) The Initial Purchaser agrees thathereby represents there is no action, in connection with Exempt Resalessuit or proceeding pending against or, it will solicit offers to buy the Series A Notes only from, and will offer to sell the Series A Notes only to, Eligible Purchasers. The Initial Purchaser further agrees that it will offer to sell the Series A Notes only to, and will solicit offers to buy the Series A Notes only from (i) Eligible Purchasers that the Initial Purchaser reasonably believes are QIBs and (ii) Accredited Institutions who make the representations contained in, and execute and return to the knowledge of such Initial Purchaser, a certificate in threatened against or affecting, such Initial Purchaser before any court or arbitrator or any government body, agency, or official which could materially adversely affect the form of Annex A attached to the Offering Circular, in each case, that agree that (A) the Series A Notes purchased by them may be resold, pledged or otherwise transferred within the time period referred to under Rule 144(k) (taking into account the provisions of Rule 144(d) under the Act, if applicable) under the Act, as in effect on the date of the transfer ability of such Series A Notes, only (1) Initial Purchaser to the Company, (2) to a person whom the seller reasonably believes is a QIB purchasing for perform its own account or for the account of a QIB in a transaction meeting the requirements of Rule 144A obligations under the Act, (3) in an offshore transaction (as defined in Rule 902 under the Act) meeting the requirements of Rule 904 of the Act, (4) in a transaction meeting the requirements of Rule 144 under the Act, (5) to an Accredited Institution that, prior to such transfer, furnishes the Trustee a signed letter containing certain representations and agreements relating to the registration of transfer of such Series A Note (the form of which is substantially the same as Annex A to the Offering Circular) and, if such transfer is in respect of an aggregate principal amount of Series A Notes less than $250,000, an opinion of counsel acceptable to the Company that such transfer is in compliance with the Act, (6) in accordance with another exemption from the registration requirements of the Act (and based upon an opinion of counsel acceptable to the Company) or (7) pursuant to an effective registration statement and, in each case, in accordance with the applicable securities laws of any state of the United States or any other applicable jurisdiction and (B) they will deliver to each person to whom such Series A Notes or an interest therein is transferred a notice substantially to the effect of the foregoingthis Agreement.
(e) None of such Initial Purchaser nor any of its affiliates or any person acting on its or their behalf has engaged or will engage in any directed selling efforts within the meaning of Regulation S with respect to the Series A Notes. The Initial Purchaser acknowledges hereby represents and agrees that the Company and, for purposes all offers and sales of the opinions Purchased Notes to be delivered non—United States persons, prior to the Initial Purchaser pursuant to Section 10 hereof, counsel to the Company and counsel to the Initial Purchaser will rely upon the accuracy and truth expiration of the foregoing representations and the Initial Purchaser hereby consents to such reliance.Distribution
Appears in 1 contract
Representations and Warranties of the Initial Purchaser. The Initial Purchaser proposes to offer the Securities for sale upon the terms and conditions set forth in this Agreement and the Final Memorandum, and the Initial Purchaser hereby represents and warrants to, to and agrees with, with the Company that:
(a) The Initial Purchaser is either a QIB or an Accredited Institution with such knowledge It will offer and experience in financial and business matters as are necessary in order sell the Securities only to evaluate the merits and risks of an investment in the Series A Notes.
(b) The Initial Purchaser (i) is not acquiring the Series A Notes with a view to any distribution thereof or with any present intention of offering or selling any of the Series A Notes in a transaction that would violate the Act or the securities laws of any State of the United States or any other applicable jurisdiction and persons whom it reasonably believes are “qualified institutional buyers” (ii“QIBs”) will be reoffering and reselling the Series A Notes only to QIBs in reliance on the exemption from the registration requirements of the Act provided by Rule 144A and to a limited number of Accredited Institutions that execute and deliver a letter containing certain representations and agreements in the form attached as Annex A to the Offering Circular.
(c) The Initial Purchaser agrees that no form of general solicitation or general advertising (within the meaning of Regulation D under the Act) has been or will be used by the Initial Purchaser or any of its representatives Rule 144A in connection with the offer and sale of any of the Series A Notes pursuant hereto, including, but not limited to, articles, notices or other communications published in any newspaper, magazine or similar medium, or broadcast over television or radio, or transmitted over the internet, or communicated in any seminar or meeting whose attendees have been invited by any general solicitation or general advertising.
(d) The Initial Purchaser agrees that, in connection with Exempt Resales, it will solicit offers to buy the Series A Notes only from, and will offer to sell the Series A Notes only to, Eligible Purchasers. The Initial Purchaser further agrees that it will offer to sell the Series A Notes only to, and will solicit offers to buy the Series A Notes only from (i) Eligible Purchasers that the Initial Purchaser reasonably believes are QIBs and (ii) Accredited Institutions who make the representations contained in, and execute and return to the Initial Purchaser, a certificate in the form of Annex A attached to the Offering Circular, in each case, that agree that (A) the Series A Notes purchased by them may be resold, pledged or otherwise transferred within the time period referred to under Rule 144(k) (taking into account the provisions of Rule 144(d) under the Act, if applicable) under the Act, as in effect on the date of the transfer of such Series A Notes, only (1) to the Company, (2) to a person whom the seller reasonably believes is a QIB purchasing for its own account or for the account of a QIB in a transaction transactions meeting the requirements of Rule 144A and (ii) other eligible persons pursuant to offers and sales that occur outside the United States within the meaning of Regulation S in accordance with Regulations S, which persons, in purchasing such Securities, are deemed to have represented and agreed as provided in the Final Memorandum under the Actcaption “Notice to investors”;
(b) It is a QIB within the meaning of Rule 144A;
(c) It has not and will not directly or indirectly, (3) solicit offers in an offshore transaction the United States for, or offer or sell, the Securities by any form of general solicitation, general advertising (as defined such terms are used in Rule 902 under Regulation D) or in any manner involving a public offering within the Actmeaning of Section 4(2) meeting the requirements of Rule 904 of the Securities Act; and
(d) With respect to offers and sales outside the United States:
(i) It understands that no action has been or will be taken in any jurisdiction by the Company that would permit a public offering of the Securities, (4) in a transaction meeting the requirements or possession or distribution of Rule 144 under the Act, (5) to an Accredited Institution that, prior to such transfer, furnishes the Trustee a signed letter containing certain representations and agreements either Memorandum or any other offering or publicity material relating to the registration of transfer of such Series A Note Securities, in any country or jurisdiction where action for that purpose is required;
(ii) The Securities have not been registered under the form of which is substantially Securities Act and may not be offered or sold within the same as Annex A to United States or to, or for the Offering Circular) andaccount or benefit of, if such transfer is in respect of an aggregate principal amount of Series A Notes less than $250,000, an opinion of counsel acceptable to the Company that such transfer is in compliance with the Act, (6) U.S. persons except in accordance with Rule 144A or pursuant to another exemption from the registration requirements of the Act Securities Act; and
(A) It has not offered or sold, and based upon an opinion of counsel acceptable prior to the Companyexpiry of a period of six (6) months from the time of purchase, will not offer or (7) pursuant sell, any Securities to an effective registration statement and, persons in each case, in accordance with the applicable securities laws of any state of the United States Kingdom, except to persons whose ordinary activities involve them in acquiring, holding, managing or any other applicable jurisdiction disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances that have not resulted and (B) they will deliver to each person to whom such Series A Notes or not result in an interest therein is transferred a notice substantially offer to the effect of public in the foregoing.
(e) None of such Initial Purchaser nor any of its affiliates or any person acting on its or their behalf has engaged or will engage in any directed selling efforts United Kingdom within the meaning of Regulation S the Public Offers of Securities Regulations 1995; (B) it has only communicated or caused to be communicated and will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the Financial Services and Markets ▇▇▇ ▇▇▇▇ (the “FSMA”)) received by it in connection with the issue or sale of any Securities in circumstances in which section 21(1) of the FSMA does not apply to the Company; and (C) it has complied and will comply with all applicable provisions of the FSMA with respect to the Series A Notes. The Initial Purchaser acknowledges that the Company and, for purposes of the opinions to be delivered anything done by it in relation to the Initial Purchaser pursuant to Section 10 hereofSecurities in, counsel to from or otherwise involving the Company and counsel to the Initial Purchaser will rely upon the accuracy and truth of the foregoing representations and the Initial Purchaser hereby consents to such relianceUnited Kingdom.
Appears in 1 contract
Representations and Warranties of the Initial Purchaser. (a) The Initial Purchaser represents and warrants to, and agrees with, to the Company that:
: (a1) The the Notes sold to the Initial Purchaser is either a QIB to be acquired by it hereunder are being acquired for its own account or an Accredited Institution account with respect to which it exercises sole investment discretion and it or any such knowledge account is a "qualified institutional buyer" as defined in Rule 144A of the Act ("QIB") and experience in financial and business matters as are necessary in order to evaluate the merits and risks of an investment in the Series A Notes.
(b) The Initial Purchaser (i) is not acquiring the Series A Notes with a view to any distribution thereof or with any present has no intention of offering distributing or selling reselling such Notes or any part thereof in any transaction which would be in violation of the Series A Notes in a transaction that would violate the Act or the securities laws of any State of the United States of America or any other applicable jurisdiction state; (2) it has not solicited offers for, or offered or sold, and (ii) will be reoffering and reselling not solicit offers for, or offer or sell, the Series A Notes only to QIBs in reliance on the exemption from the registration requirements by means of the Act provided by Rule 144A and to a limited number of Accredited Institutions that execute and deliver a letter containing certain representations and agreements in the form attached as Annex A to the Offering Circular.
(c) The Initial Purchaser agrees that no any form of general solicitation or general advertising (or in any manner involving a public offering within the meaning of Section 4(2) of the Act, or with respect to any such securities sold in reliance on Regulation D S of the Act, by means of any directed selling efforts within the meaning of Rule 903 under the ActAct and the Commission's Release No. 33-6863; (3) has it acknowledges that the Notes have not been or will not be used by registered under the Initial Purchaser Act and that none of the Notes may be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except as set forth below; (4) it shall not resell or otherwise transfer any of such Securities except (A) to the Company or any of its representatives Subsidiaries, (B) inside the United States to a QIB in connection compliance with the offer and sale of Rule 144A or, if any of the Series A Notes pursuant heretosuch Person is buying for one or more institutional accounts for which such person is acting as fiduciary or agent, including, but not limited to, articles, notices or other communications published in any newspaper, magazine or similar medium, or broadcast over television or radio, or transmitted over the internet, or communicated in any seminar or meeting whose attendees have been invited by any general solicitation or general advertising.
(d) The Initial Purchaser agrees that, in connection with Exempt Resales, it will solicit offers only when such Person has represented to buy the Series A Notes only from, and will offer to sell the Series A Notes only to, Eligible Purchasers. The Initial Purchaser further agrees that it will offer to sell the Series A Notes only to, and will solicit offers to buy the Series A Notes only from (i) Eligible Purchasers that the Initial Purchaser reasonably believes are QIBs and (ii) Accredited Institutions who make the representations contained inthat each such account is a QIB, and execute and return to the Initial Purchaserwhom notice has been given that such sale or delivery is being made in reliance on Rule 144A, a certificate in the form of Annex A attached to the Offering Circularand, in each case, that agree that (A) the Series A Notes purchased by them may be resold, pledged or otherwise transferred within the time period referred to in transactions under Rule 144(k) (taking into account the provisions of Rule 144(d) under the Act, if applicable) under the Act, as in effect on the date of the transfer of such Series A Notes, only (1) to the Company144A, (2C) inside the United States to a person whom limited number of other institutional investors reasonably believed by the seller reasonably believes is a QIB purchasing for its own account or for the account of a QIB in a transaction meeting the requirements of Rule 144A under the Act, (3) in an offshore transaction Initial Purchaser to be "Accredited Investors" (as defined in Rule 902 under 501(a)(1), (2), (3) or (7) of the Act) meeting the requirements each of Rule 904 of the Act, (4) in a transaction meeting the requirements of Rule 144 under the Act, (5) to an Accredited Institution thatwhich, prior to such transfer, furnishes (or has furnished on its behalf by a U.S. broker-dealer) to the Trustee Initial Purchaser and the Company a signed letter containing certain representations and agreements relating to the registration of restrictions on transfer of such Series A Note (the form of which is substantially the same as Annex Notes set forth in Appendix A to the Offering Circular) and, if such transfer is Final Memorandum in respect of an aggregate principal amount of Series A Notes less than $250,000, an opinion of counsel acceptable to the Company that such transfer is in compliance with private sales exempt from registration under the Act, (6D) outside the Unites States in accordance compliance with another Rule 904 under the Act, (E) pursuant to any other exemption from the registration requirements of provided under the Act (and based upon an opinion of counsel acceptable to the Companyif available) including Rule 144 thereunder or (7F) pursuant to an effective registration statement and, in each case, in accordance with under the applicable securities laws of any state of the United States or any other applicable jurisdiction Act; and (B5) they it will deliver give to each person to whom it transfers the Notes notice of any restrictions on transfer of such Series A Notes or an interest therein is transferred a notice substantially and subject to the effect Company's right prior to any such offer, sale or transfer pursuant to clause (E) to require the delivery of an opinion of counsel, certification and/or other information satisfactory to it; and subject, nevertheless, to the disposition of the foregoing.
(e) None of such Initial Purchaser nor any of Purchaser's property being at all times within its affiliates or any person acting on its or their behalf has engaged or will engage in any directed selling efforts within the meaning of Regulation S control and provided that with respect to the Series A Notes. The Initial Purchaser acknowledges that the Company andclause (C) and (D) above, for purposes of the opinions to be delivered to the Initial Purchaser pursuant to Section 10 hereof, counsel to the Company and counsel to the Initial Purchaser will rely upon the accuracy and truth of the foregoing representations and the Initial Purchaser hereby consents each such transfer is effected by delivery to such reliance.purchaser of securities in definitive form and registered in its name (or its nominee's name) on the books maintained by the registrar of the
Appears in 1 contract
Sources: Securities Purchase Agreement (Renaissance Cosmetics Inc /De/)
Representations and Warranties of the Initial Purchaser. The Initial Purchaser represents and warrants to, and agrees with, the Company that:
(a) The Initial Purchaser It is either a QIB or an Accredited Institution with such knowledge as defined in Rule 144A under the Act and experience it will offer the Notes for resale only upon the terms and conditions set forth in financial this Agreement and business matters as are necessary in order to evaluate the merits and risks of an investment in the Series A NotesPricing Disclosure Package and the Final Offering Circular.
(b) The Initial Purchaser (i) It is not acquiring the Series A Notes with a view to any distribution thereof or with any present intention of offering or selling any of the Series A Notes in a transaction that would violate the Act or the securities laws of any State state of the United States or any other applicable jurisdiction and (ii) jurisdiction. In connection with the Exempt Resales, it will be reoffering and reselling solicit offers to buy the Series A Notes only from, and will offer and sell the Notes only to, (A) persons reasonably believed by the Initial Purchaser to be QIBs or (B) persons reasonably believed by the Initial Purchaser to be Institutional Accredited Investors or (C) non-U.S. persons reasonably believed by the Initial Purchaser to be a purchaser referred to in reliance on Regulation S under the exemption from Act; provided, however, that in purchasing such Notes, such persons are deemed to have represented and agreed as provided under the registration requirements of the Act provided by Rule 144A and caption "Notice to a limited number of Accredited Institutions that execute and deliver a letter containing certain representations and agreements Investors" contained in the form attached as Annex A to Pricing Disclosure Package and the Final Offering Circular.
(c) The Initial Purchaser agrees that no No form of general solicitation or general advertising (within in violation of the meaning of Regulation D under the Act) Act has been or will be used nor will any offers in any manner involving a public offering within the meaning of Section 4(2) of the Act or, with respect to Notes to be sold in reliance on Regulation S, by the means of any directed selling efforts be made by such Initial Purchaser or any of its representatives in connection with the offer and sale of any of the Series A Notes pursuant hereto, including, but not limited to, articles, notices or other communications published in any newspaper, magazine or similar medium, or broadcast over television or radio, or transmitted over the internet, or communicated in any seminar or meeting whose attendees have been invited by any general solicitation or general advertisingNotes.
(d) The Initial Purchaser agrees thatwill deliver to each Subsequent Purchaser of the Notes, in connection with Exempt Resalesits original distribution of the Notes, it will solicit offers to buy a copy of the Series A Notes only fromPricing Disclosure Package and the Final Offering Circular, as amended and will offer to sell supplemented at the Series A Notes only to, Eligible Purchasers. The Initial Purchaser further agrees that it will offer to sell the Series A Notes only to, and will solicit offers to buy the Series A Notes only from date of such delivery.
(i) Eligible Purchasers that It has only communicated or caused to be communicated and will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the Initial Purchaser reasonably believes are QIBs meaning of Section 21 of the FSMA) received by it in connection with the issue or sale of any of the Notes in circumstances in which Section 21(1) of the FSMA does not apply to the Issuer and (ii) Accredited Institutions who make the representations contained in, it has complied and execute and return to the Initial Purchaser, a certificate in the form of Annex A attached to the Offering Circular, in each case, that agree that (A) the Series A Notes purchased by them may be resold, pledged or otherwise transferred within the time period referred to under Rule 144(k) (taking into account the will comply with all applicable provisions of Rule 144(d) under the ActFSMA, if applicable) under the Act, as in effect on the date of the transfer of such Series A Notes, only (1) to the Company, (2) to a person whom the seller reasonably believes is a QIB purchasing for its own account or for the account of a QIB in a transaction meeting the requirements of Rule 144A under the Act, (3) in an offshore transaction (as defined in Rule 902 under the Act) meeting the requirements of Rule 904 of the Act, (4) in a transaction meeting the requirements of Rule 144 under the Act, (5) to an Accredited Institution that, prior to such transfer, furnishes the Trustee a signed letter containing certain representations and agreements relating to the registration of transfer of such Series A Note (the form of which is substantially the same as Annex A to the Offering Circular) and, if such transfer is in respect of an aggregate principal amount of Series A Notes less than $250,000, an opinion of counsel acceptable to the Company that such transfer is in compliance with the Act, (6) in accordance with another exemption from the registration requirements of the Act (and based upon an opinion of counsel acceptable to the Company) or (7) pursuant to an effective registration statement and, in each case, in accordance with the applicable securities laws of any state of the United States or any other applicable jurisdiction and (B) they will deliver to each person to whom such Series A Notes or an interest therein is transferred a notice substantially to the effect of the foregoing.
(e) None of such Initial Purchaser nor any of its affiliates or any person acting on its or their behalf has engaged or will engage in any directed selling efforts within the meaning of Regulation S with respect to the Series A Notes. The Initial Purchaser acknowledges that the Company and, for purposes of the opinions to be delivered anything done by it in relation to the Initial Purchaser pursuant to Section 10 hereofNotes in, counsel to from or otherwise involving the Company and counsel to the Initial Purchaser will rely upon the accuracy and truth of the foregoing representations and the Initial Purchaser hereby consents to such reliance.United Kingdom
Appears in 1 contract
Sources: Purchase Agreement (TB Wood's INC)
Representations and Warranties of the Initial Purchaser. The Initial Purchaser represents represents, warrants and warrants to, covenants to the Company and the Guarantors and agrees with, the Company that:
(a) The Such Initial Purchaser is either a QIB and an “accredited investor” (as defined in Rule 501(a)(1), (2), (3) or an Accredited Institution (7) under the Securities Act), with such knowledge and experience in financial and business matters as are necessary in order to evaluate the merits and risks of an investment in the Series A Additional Notes.
(b) The Such Initial Purchaser (i) is not acquiring the Series A Additional Notes with a view to any distribution thereof or with any present intention of offering or selling any of the Series A Notes in a transaction that would violate the Securities Act or the securities laws of any State state of the United States or any other applicable jurisdiction and (ii) will be reoffering and reselling the Series A Additional Notes only to QIBs in reliance on the exemption from the registration requirements of the Securities Act provided by Rule 144A and to a limited number of Accredited Institutions that execute and deliver a letter containing certain representations and agreements in offshore transactions in reliance upon Regulation S under the form attached as Annex A to the Offering CircularSecurities Act.
(c) The Initial Purchaser agrees that no No form of general solicitation or general advertising (within the meaning of Regulation D under the Securities Act) has been or will be used by the such Initial Purchaser or any of its representatives in connection with the offer and sale of any of the Series A Notes pursuant heretoAdditional Notes, including, but not limited to, articles, notices or other communications published in any newspaper, magazine magazine, or similar medium, medium or broadcast over television or radio, or transmitted over the internet, or communicated in any seminar or meeting whose attendees have been invited by any general solicitation or general advertising.
(d) The Such Initial Purchaser agrees that, in connection with the Exempt Resales, it will solicit offers to buy the Series A Additional Notes only from, and will offer to sell the Series A Additional Notes only to, Eligible Purchasers. The Such Initial Purchaser further (i) agrees that it will offer to sell the Series A Additional Notes only to, and will solicit offers to buy the Series A Additional Notes only from (iA) Eligible Purchasers that the Initial Purchaser reasonably believes are QIBs QIBs, and (B) Reg S Investors, (ii) Accredited Institutions who make the representations contained inacknowledges and agrees that, and execute and return to the Initial Purchaser, a certificate in the form case of Annex A attached to the Offering Circular, in each casesuch QIBs and such Reg S Investors, that agree that (A) such Additional Notes will not have been registered under the Series A Notes purchased by them Securities Act and may be resold, pledged or otherwise transferred within the time period referred to under Rule 144(k) (taking into account the provisions of Rule 144(d) under the Act, if applicable) under the Act, as in effect on the date of the transfer of such Series A Notes, only (1) to the Company, (2A)(1) to a person whom the seller reasonably believes is a QIB purchasing for its own account or for the account of a QIB for which such person is acting as a fiduciary or agent, in a transaction meeting the requirements of Rule 144A under the Act144A, (32) in an offshore transaction (as defined in Rule 902 under the Securities Act) meeting the requirements of Rule 904 of under the Securities Act, (43) in a transaction meeting the requirements of Rule 144 under the Act144, or (5) to an Accredited Institution that, prior to such transfer, furnishes the Trustee a signed letter containing certain representations and agreements relating to the registration of transfer of such Series A Note (the form of which is substantially the same as Annex A to the Offering Circular) and, if such transfer is in respect of an aggregate principal amount of Series A Notes less than $250,000, an opinion of counsel acceptable to the Company that such transfer is in compliance with the Act, (64) in accordance with another exemption from the registration requirements of the Securities Act (and based upon an opinion of counsel acceptable counsel, if the Company and the Guarantors so request), (B) to the Company) Parent or any Subsidiary or (7C) pursuant to an effective registration statement under the Securities Act and, in each case, in accordance with the any applicable securities laws of any state of the United States or any other applicable jurisdiction and (Biii) they will deliver to acknowledges that it will, and each person to whom such Series A Notes or an interest therein subsequent holder is transferred a notice substantially to the effect required to, notify any purchaser of the foregoingsecurity evidenced thereby of the resale restrictions set forth in (ii) above.
(e) None of such Such Initial Purchaser nor any of and its affiliates or any person acting on its or their behalf has not engaged or will not engage in any directed selling efforts within the meaning of Regulation S with respect to the Series A Additional Notes or the Guarantees thereof.
(f) The Additional Notes offered and sold by such Initial Purchaser pursuant hereto in reliance on Regulation S have been and will be offered and sold only in offshore transactions.
(g) The sale of Additional Notes offered and sold by such Initial Purchaser pursuant hereto in reliance on Regulation S is not part of a plan or scheme to evade the registration provisions of the Securities Act.
(h) Such Initial Purchaser has not distributed nor, prior to the later to occur of (i) the Closing Date and (ii) completion of the distribution of the Additional Notes, will distribute any material in connection with the offering and sale of the Additional Notes other than the (w) Disclosure Package, (x) the Offering Memorandum, (y) one or more term sheets relating to the Securities containing customary information and conveyed to purchasers of securities or (z) other material, if any, not prohibited by the Securities Act and the FSMA (or regulations promulgated under the Securities Act or the FMSA), which material shall have been reviewed an approved by the Company.
(i) Such Initial Purchaser agrees that it has not offered or sold and will not offer or sell the Additional Notes in the United States or to, or for the benefit or account of, a U.S. Person (other than a distributor), in each case, as defined in Rule 902 under the Securities Act (i) as part of its distribution at any time and (ii) otherwise until 40 days after the later of the commencement of the offering of the Additional Notes pursuant hereto and the Closing Date, other than in accordance with Regulation S of the Securities Act or another exemption from the registration requirements of the Securities Act. Such Initial Purchaser agrees that, during such 40-day distribution compliance period, it will not cause any advertisement with respect to the Additional Notes (including any “tombstone” advertisement) to be published in any newspaper or periodical or posted in any public place and will not issue any circular relating to the Additional Notes, except such advertisements as permitted by and include the statements required by Regulation S.
(j) Such Initial Purchaser agrees that, at or prior to confirmation of a sale of Additional Notes by it to any distributor, dealer or person receiving a selling concession, fee or other remuneration during the 40-day distribution compliance period referred to in Rule 903(c)(3) under the Securities Act, it will send to such distributor, dealer or person receiving a selling concession, fee or other remuneration a confirmation or notice to substantially the following effect: “The Additional Notes covered hereby have not been registered under the U.S. Securities Act of 1933, as amended (the “Securities Act”), and may not be offered and sold within the United States or to, or for the account or benefit of, U.S. persons (i) as part of your distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the Offering and the Closing Date, except in either case in accordance with Regulation S under the Securities Act (or Rule 144A or to Accredited Institutions in transactions that are exempt from the registration requirements of the Securities Act), and in connection with any subsequent sale by you of the Additional Notes covered hereby in reliance on Regulation S during the period referred to above to any distributor, dealer or person receiving a selling concession, fee or other remuneration, you must deliver a notice to substantially the foregoing effect. Terms used above have the meanings assigned to them in Regulation S.”
(k) Such Initial Purchaser agrees that the Additional Notes offered and sold in reliance on Regulation S will be represented upon issuance by a global security that may not be exchanged for definitive securities until the expiration of the 40-day distribution compliance period referred to in Rule 903(c)(3) of the Securities Act and only upon certification of beneficial ownership of such Additional Notes by non-U.S. persons or U.S. persons who purchased such Additional Notes in transactions that were exempt from the registration requirements of the Securities Act. The Initial Purchaser acknowledges that the Company and the Guarantors and, for purposes of the opinions to be delivered to the Initial Purchaser pursuant to Section 10 hereof, counsel to for the Company and the Guarantors and counsel to for the Initial Purchaser will rely upon the accuracy and truth of the foregoing representations and the Initial Purchaser hereby consents consent to such reliance.
Appears in 1 contract
Representations and Warranties of the Initial Purchaser. The Initial Purchaser represents represents, warrants and warrants to, covenants to the Seller as of the Initial Closing Date and agrees with, the Company thateach subsequent Closing Date or as of such date specifically provided herein:
(a) The Initial Purchaser is either a QIB Delaware corporation. No licenses or an Accredited Institution with approvals obtained by the Initial Purchaser have been suspended or revoked by any court, administrative agency, arbitrator or governmental body and no proceedings are pending which might result in such knowledge and experience in financial and business matters as are necessary in order to evaluate the merits and risks of an investment in the Series A Notes.suspension or revocation;
(b) The Initial Purchaser (i) is not acquiring has the Series A Notes with full power and authority to execute, deliver and perform, and to enter into and consummate, all transactions contemplated by this Agreement. The Initial Purchaser has duly authorized the execution, delivery and performance of this Agreement, has duly executed and delivered this Agreement, and this Agreement, assuming due authorization, execution and delivery by the Seller, constitutes a view to any distribution thereof or with any present intention of offering or selling any legal, valid and binding obligation of the Series A Notes Initial Purchaser, enforceable against it in a transaction that would violate accordance with its terms except as the Act enforceability thereof may be limited by bankruptcy, insolvency or the securities laws of any State of the United States or any other applicable jurisdiction and (ii) will be reoffering and reselling the Series A Notes only to QIBs in reliance on the exemption from the registration requirements of the Act provided by Rule 144A and to a limited number of Accredited Institutions that execute and deliver a letter containing certain representations and agreements in the form attached as Annex A to the Offering Circular.reorganization;
(c) The Initial Purchaser agrees that no form execution and delivery of general solicitation or general advertising (within the meaning of Regulation D under the Act) has been or will be used this Agreement by the Initial Purchaser or any and the performance of its representatives in connection and compliance with the offer and sale terms of this Agreement will not violate the Initial Purchaser's articles of incorporation or constitute a default under or result in a breach or acceleration of, any of the Series A Notes pursuant heretomaterial contract, including, but not limited to, articles, notices agreement or other communications published in any newspaper, magazine instrument to which the Initial Purchaser is a party or similar medium, which may be applicable to the Initial Purchaser or broadcast over television or radio, or transmitted over the internet, or communicated in any seminar or meeting whose attendees have been invited by any general solicitation or general advertising.its assets;
(d) The Initial Purchaser agrees that, is not in connection with Exempt Resales, it will solicit offers to buy the Series A Notes only fromviolation of, and will offer to sell the Series A Notes only to, Eligible Purchasers. The Initial Purchaser further agrees that it will offer to sell the Series A Notes only to, execution and will solicit offers to buy the Series A Notes only from (i) Eligible Purchasers that delivery of this Agreement by the Initial Purchaser reasonably believes are QIBs and (ii) Accredited Institutions who make the representations contained in, its performance and execute and return to the Initial Purchaser, a certificate in the form of Annex A attached to the Offering Circular, in each case, that agree that (A) the Series A Notes purchased by them may be resold, pledged or otherwise transferred within the time period referred to under Rule 144(k) (taking into account the provisions of Rule 144(d) under the Act, if applicable) under the Act, as in effect on the date of the transfer of such Series A Notes, only (1) to the Company, (2) to a person whom the seller reasonably believes is a QIB purchasing for its own account or for the account of a QIB in a transaction meeting the requirements of Rule 144A under the Act, (3) in an offshore transaction (as defined in Rule 902 under the Act) meeting the requirements of Rule 904 of the Act, (4) in a transaction meeting the requirements of Rule 144 under the Act, (5) to an Accredited Institution that, prior to such transfer, furnishes the Trustee a signed letter containing certain representations and agreements relating to the registration of transfer of such Series A Note (the form of which is substantially the same as Annex A to the Offering Circular) and, if such transfer is in respect of an aggregate principal amount of Series A Notes less than $250,000, an opinion of counsel acceptable to the Company that such transfer is in compliance with the Actterms of this Agreement will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over the Initial Purchaser or its assets, which violation might have consequences that would materially and adversely affect the condition (6financial or otherwise) in accordance with another exemption from or the registration requirements operation of the Act (Initial Purchaser or its assets or might have consequences that would materially and based upon an opinion adversely affect the performance of counsel acceptable to the Company) or (7) pursuant to an effective registration statement and, in each case, in accordance with the applicable securities laws of any state of the United States or any other applicable jurisdiction its obligations and (B) they will deliver to each person to whom such Series A Notes or an interest therein is transferred a notice substantially to the effect of the foregoing.duties hereunder;
(e) None of such Initial Purchaser nor any of its affiliates or any person acting on its or their behalf has engaged or will engage in any directed selling efforts within the meaning of Regulation S with respect to the Series A Notes. The Initial Purchaser acknowledges does not believe, nor does it have any reason or cause to believe, that the Company andit cannot perform each and every covenant contained in this Agreement;
(f) There are no actions or proceedings against, for purposes of the opinions to be delivered to or investigations of, the Initial Purchaser pursuant before any court, administrative agency or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to Section 10 hereof, counsel to prevent the Company purchase of the Mortgage Loans or the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and counsel to adversely affect the performance by the Initial Purchaser will rely upon of its obligations under, or the accuracy validity or enforceability of, this Agreement;
(g) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and truth of the foregoing representations and performance by the Initial Purchaser hereby consents of, or compliance by the Initial Purchaser with, this Agreement or the consummation of the transactions contemplated by this Agreement, except for such consents, approvals, authorizations or orders, if any, that have been obtained prior to such reliancethe related Closing Date; and
(h) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Initial Purchaser.
Appears in 1 contract
Sources: Assignment, Assumption and Recognition Agreement (Sg Mortgage Securities Trust 2006-Fre2)