Representations of the Purchasers. (a) As an inducement to, and as part of the Company's consideration for the sale of the Original 1996 Senior Notes pursuant to the Original Agreement and for the issue of the Notes pursuant to this Agreement, each of you represents, respectively, and in entering into this Agreement the Company understands, that (i) you are an Institutional Holder, (ii) you are acquiring Notes for the purpose of investment and for your own account and not with a view to the distribution thereof; provided that the disposition of your Property shall at all times be and remain within your control, subject, however, to compliance with Federal securities laws. You acknowledge that the Notes have not been registered under the Securities Act or the laws of any state and you understand that the Notes must be held indefinitely unless they are subsequently registered under the Securities Act or an exemption from such registration is available. You have been advised that the Company does not contemplate registering, and is not legally required to register, the Notes under the Securities Act. (b) Each of you further represents that either: (i) no part of the funds used by you to purchase the Notes constituted assets allocated to any separate account maintained by you; or (ii) no part of the funds used by you to purchase the Notes constituted assets allocated to any separate account maintained by you such that the application of such funds will constitute a prohibited transaction under Section 406 of ERISA; or (iii) all or a part of such funds constituted assets of one or more separate accounts maintained by you, and you have disclosed to the Company the names of such employee benefit plans whose assets in such separate account or accounts exceed 10% of the total assets or are expected to exceed 10% of the total assets of such account or accounts as of the date of such purchase and the Company has advised you in writing that the Company is not a party-in-interest nor are the Notes employer securities with respect to the particular employee benefit plans disclosed to the Company by you as aforesaid (for the purpose of this clause (iii), all employee benefit plans maintained by the same employer or employee organization are deemed to be a single plan). As used herein, the terms "separate account," "party-in-interest," "employer securities," and "employee benefit plan" have the meanings assigned to them in ERISA.
Appears in 1 contract
Sources: Note Purchase Agreement (Oneida LTD)
Representations of the Purchasers. (a) As an inducement to, Each Purchaser represents and as part of the Company's consideration for the sale of the Original 1996 Senior Notes pursuant warrants to the Original Agreement and for Company that such Purchaser is acquiring the issue of the Notes pursuant to this Agreement, each of you represents, respectively, and in entering into this Agreement the Company understands, that (i) you are an Institutional Holder, (ii) you are acquiring Notes for the purpose of investment and for your own account and not with a view to the distribution thereof; provided , and that such Purchaser has no present intention of selling, negotiating or otherwise disposing of the Notes it being understood, however, that the disposition of your such Purchaser's Property shall at all times be and remain within your its control, subject, however, . Each Purchaser further represents and warrants to compliance with Federal securities laws. You acknowledge the Company that such Purchaser has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of investing in the Notes and is aware that the Notes have not been registered under the Securities Act or the securities laws of any state state, and you understand that the Notes must be held indefinitely unless they are subsequently registered sale of each Note is predicated upon such sale being exempt from registration as an exempt transaction under applicable federal and state securities laws, and that no state or federal governmental authorities have made any finding or determination relating to the Securities Act Notes, and that no state or an exemption from such registration is availablefederal governmental authority has or will recommend or endorse the Notes. You have been advised that Each Purchaser further represents and warrants to the Company does not contemplate registeringthat at least one of the following statements is an accurate representation as to the source of funds to be used by such Purchaser to pay the purchase price of the Notes purchased by it hereunder (respectively, the "SOURCE"):
(a) The Source is an "insurance company general account" within the meaning of Department of Labor Prohibited Transaction Exemption ("PTE") 95-60 (issued July 12, 1995), and there is not legally required no employee benefit plan (treating as a single plan, all employee benefit plans maintained by the same employer or employee organization) with respect to registerwhich the amount of the general account reserves and liabilities for all contracts held by or on behalf of such employee benefit plan exceed ten percent (10%) of the total reserves and liabilities of such general account (exclusive of separate account liabilities) plus surplus, as set forth in the Notes under the Securities Act.NAIC Annual Statement filed with such Purchaser's state of domicile;
(b) Each of you further represents that either: (i) no part of the funds used by you to purchase the Notes constituted assets allocated to any separate account maintained by you; or (ii) no part of the funds used by you to purchase the Notes constituted assets allocated to any separate account maintained by you such that the application of such funds will constitute a prohibited transaction under Section 406 of ERISA; or (iii) all or a part of such funds constituted assets of The Source is one or more separate accounts accounts, trusts or a commingled pension trust maintained by youthe Purchaser within the meaning of PTE 90-1 (issued January 29, 1990) and you have the Purchaser has disclosed to the Company the names of such employee benefit plans whose assets in such separate account or accounts or pension trusts exceed 10% of the total assets or are expected to exceed 10% of the total assets of such account or accounts or trusts as of the date of such purchase and the Company has advised you in writing that the Company is not a party-in-interest nor are the Notes employer securities with respect to the particular employee benefit plans disclosed to the Company by you as aforesaid (for the purpose of this clause (iiib), all employee benefit plans maintained by the same employer or employee organization are deemed to be a single plan). As used herein;
(c) The Source is a bank collective investment fund maintained by the Purchaser within the meaning of PTE 91-38 (issued July 12, 1991) and the Purchaser has disclosed to the Company the names of such employee benefit plans whose assets in such collective investment fund exceed 10% of the total assets or are expected to exceed 10% of the total assets of such fund as of the date of such purchase (for the purpose of this clause (c), all employee benefit plans maintained by the same employer or employee organization are deemed to be a single plan);
(d) The Source is one or more employee benefit plans, each of which has been identified to the Company in writing;
(e) The Source is one or more pension funds, trust funds or agency accounts, each of which is a "governmental plan" as defined in Section 3(32) of ERISA;
(f) The Source is an "investment fund" managed by a "qualified professional asset manager" or "QPAM" (as defined in Part V of PTE 84-14, issued March 13, 1984), provided that no other party to the transactions described in this Agreement and no "affiliate" of such other party (as defined in Section V(c) of PTE 84-14) has at this time, and during the immediately preceding one year has exercised the authority to appoint or terminate said QPAM as manager of the assets of any plan identified in writing pursuant to this clause (f) or to negotiate the terms of said QPAM's management agreement on behalf of any such identified plans; or
(g) The Source consists of funds which do not constitute "separate account," plan assets"party-in-interest," "employer securities," and "employee benefit plan" have the meanings assigned to them in ERISA.
Appears in 1 contract
Sources: Note Purchase Agreement (Crown Pacific Partners L P)
Representations of the Purchasers. (a) As an inducement to, and as part of the Company's consideration for the sale of the Original 1996 Senior Notes pursuant to the Original Agreement and for the issue of the Notes pursuant to this Agreement, each of you represents, respectivelyYou represent, and in entering into this Agreement the Company understands, that (i) you are an Institutional Holder, (ii) you are acquiring Notes for the purpose of investment and for your own account and not with a view to the any distribution thereof; provided that the disposition of your Property property shall at all times be and remain within your control, subject, however, to compliance with Federal securities laws. You acknowledge that the Notes have not been registered under the Securities Act or the laws of any state and you understand that the Notes must be held indefinitely unless they are subsequently registered under the Securities Act or an exemption from such registration is available. You have been advised that the Company does not contemplate registering, and is not legally required to register, the Notes under the Securities Act.
(b) Each of you . You further represents represent that either: (i) no part of the funds to be used by you to purchase the Notes constituted will constitute assets allocated to any separate account maintained by you; or (ii) no part of the funds to be used by you to purchase the Notes constituted will constitute assets allocated to any separate account maintained by you such that the application of such funds will constitute a prohibited transaction under Section 406 of ERISA; or (iii) all or a part of such funds constituted will constitute assets of one or more separate accounts maintained by you, and you have disclosed to the Company the names of such employee benefit plans whose assets in such separate account or accounts exceed 10% of the total assets or are expected to exceed 10% of the total assets of such account or accounts as of the date of such purchase and the Company has advised you in writing that the Company is not a party-in-interest nor are the Notes employer securities with respect to the particular employee benefit plans disclosed to the Company by you as aforesaid (for the purpose of this clause (iii), all employee benefit plans maintained by the same employer or employee organization are deemed to be a single plan). As used herein, the terms "separate account," "party-in-interest," "employer securities," and "employee benefit plan" have the meanings assigned to them in ERISA.
Appears in 1 contract
Sources: Note Agreement (Danaher Corp /De/)
Representations of the Purchasers. (a) As an inducement to, and as part of the Company's consideration for the sale of the Original 1996 Senior Notes pursuant to the Original Agreement and for the issue of the Notes pursuant to this Agreement, each of you Each Purchaser represents, respectively, and in entering into making this Agreement sale to such Purchaser it is expressly understood and agreed between the Company understandsand such Purchaser, that (i) you are an Institutional Holder, (ii) you are such Purchaser is not acquiring the Notes for the purpose of investment and for your own account and not hereunder with a view to or for sale in connection with any distribution thereof within the distribution thereof; meaning of the Securities Act, provided that the disposition of your Property its property shall at all times be and remain within your its control, subject, however, to compliance with Federal securities laws. You acknowledge Each Purchaser understands that the Notes have not been registered under the Securities Act and may be resold only if registered pursuant to the provisions of the Securities Act or the laws of any state if an exemption from registration is available, except under circumstances where neither such registration nor such an exemption is required by law, and you understand that the Notes must be held indefinitely unless they are subsequently registered Company is not required to register the Notes. Each Purchaser also represents that it is an "accredited investor" by reason of the provisions of clause (1), (3) or (7) of the definition of that term in Regulation D under the Securities Act and that at least one of the following statements is an accurate representation as to each source of funds to be used by it to pay the purchase price of the Notes purchased by it hereunder:
(a) such Purchaser is an insurance company subject to state regulation and the source of the funds being used by such Purchaser to pay the purchase price of the Notes being purchased by it hereunder is an "insurance company general account" within the meaning of Department of Labor Prohibited Transaction Exemption ("PTE") 95-60 (issued July 12, 1995), and there is no employee benefit plan (treating as a single plan, all employee benefit plans maintained by the same employer or an exemption from affiliate (as defined in section V(a)(1) of such registration is available. You have been advised that PTE) of such employer or by the Company does not contemplate registeringsame employee organization) with respect to which the amount of the general account reserves and liabilities for all contracts held by or on behalf of such employee benefit plan exceeds ten percent (10%) of the total reserves and liabilities of such general account (exclusive of separate account liabilities) plus surplus, and is not legally required to register, as set forth in the Notes under the Securities Act.NAIC Annual Statement filed with such Purchaser's state of domicile; or
(b) Each of you further represents such Purchaser is an insurance company subject to state regulation and to the extent that either: (i) no any part of the funds being used by you it to pay the purchase price of the Notes constituted being purchased by it hereunder constitutes assets allocated to any separate account maintained by you; or it, (iii) no part of the funds used by you to purchase the Notes constituted assets allocated to any such separate account maintained by you is an "insurance company pooled separate account" within the meaning of PTE 90-1, in which case such that the application of such funds will constitute a prohibited transaction under Section 406 of ERISA; or (iii) all or a part of such funds constituted assets of one or more separate accounts maintained by you, and you have Purchaser has disclosed to the Company the names name of such each employee benefit plans plan whose assets in such separate account or accounts exceed 10% of the total assets or are expected to exceed 10% of the total assets of such account or accounts as of the date of such purchase (and the Company has advised you in writing that the Company is not a party-in-interest nor are the Notes employer securities with respect to the particular employee benefit plans disclosed to the Company by you as aforesaid (for the purpose purposes of this clause subparagraph (iiib), all employee benefit plans maintained by the same employer or employee organization are deemed to be a single plan), or (ii) such separate account contains only the assets of a specific employee benefit plan, complete and accurate information as to the identity of which such Purchaser has delivered to the Company; or
(c) all of the funds being used by such Purchaser to pay the purchase price of the Notes being purchased by it hereunder constitute assets of an "investment fund" (within the meaning of Part V of the QPAM Exemption) managed by a "qualified professional asset manager" or QPAM (within the meaning of Part V of the QPAM Exemption), no employee benefit plan's assets which are included in such investment fund, when combined with the assets of all other employee benefit plans established or maintained by the same employer or by an affiliate (within the meaning of section V(c)(1) of the QPAM Exemption) of such employer or by the same employee organization and managed by such QPAM, exceed 20% of the total client assets managed by such QPAM, the conditions of Part I(g) of the QPAM Exemption are satisfied and the identity of such QPAM and the names of each employee benefit plan whose assets are included in such investment fund have been disclosed to the Company; or
(d) such Purchaser is not an insurance company and all or a portion of the funds to be used by it to pay the purchase price of the Notes being purchased by it hereunder does not constitute assets of any employee benefit plan (other than a governmental plan exempt from the coverage of ERISA) and the remaining portion, if any, of such funds consists of funds which may be deemed to constitute assets of one or more specific employee benefit plans, complete and accurate information as to the identity of each of which such Purchaser has delivered to the Company. As used hereinin this paragraph 9, the terms "separate account," employee benefit plan"party-in-, "party in interest," "employer securities," and "employee benefit planseparate account" shall have the respective meanings assigned to them such terms in section 3 of ERISA.
Appears in 1 contract
Representations of the Purchasers. (a) As an inducement to, and as part of the Company's consideration for the sale of the Original 1996 Senior Notes pursuant to the Original Agreement and for the issue of the Notes pursuant to this Agreement, each of you represents, respectively, and in entering into this Agreement the Company understands, that (i) you are an Institutional Holder, (ii) you are acquiring Notes for the purpose of investment and for your own account and not with a view to the distribution thereof; provided that the disposition of your Property property shall at all times be and remain within your control, subject, however, to compliance with Federal securities laws. You acknowledge that the Notes have not been registered under the Securities Act or the laws of any state and you understand that the Notes must be held indefinitely unless they are subsequently registered under the Securities Act or an exemption from such registration is available. You have been advised that the Company does not contemplate registering, and is not legally required to register, the Notes under the Securities Act.
(b) . Each of you further represents that either: (i) no part of the funds to be used by you to purchase the Notes constituted will constitute assets allocated to any separate account maintained by you; or (ii) no part of the funds to be used by you to purchase the Notes constituted will constitute assets allocated to any separate account maintained by you such that the application of such funds will constitute a prohibited transaction under Section 406 of ERISA; or (iii) all or a part of such funds constituted will constitute assets of one or more separate accounts maintained by you, and you have disclosed to the Company the names of such employee benefit plans whose assets in such separate account or accounts exceed 10% of the total assets or are expected to exceed 10% of the total assets of such account or accounts as of the date of such purchase and the Company has advised you in writing that the Company is not a party-in-interest nor are the Notes employer securities with respect to the particular employee benefit plans disclosed to the Company by you as aforesaid (for the purpose of this clause (iii), all employee benefit plans maintained by the same employer or employee organization are deemed to be a single plan). As used herein, the terms "separate account," "party-in-interest," "employer securities," and "employee benefit plan" have the meanings assigned to them in ERISA.are
Appears in 1 contract
Sources: Note Agreement (Oneida LTD)
Representations of the Purchasers. (a) As an inducement to, Each Purchaser represents and as part of the Company's consideration for the sale of the Original 1996 Senior Notes pursuant warrants to the Original Agreement and for Company that such Purchaser is acquiring the issue of the Notes pursuant to this Agreement, each of you represents, respectively, and in entering into this Agreement the Company understands, that (i) you are an Institutional Holder, (ii) you are acquiring Notes for the purpose of investment and for your own account and not with a view to the distribution thereof, and that such Purchaser has no present intention of selling, negotiating or otherwise disposing of the Notes; provided it being understood, however, that the disposition of your such Purchaser's Property shall at all times be and remain within your its control, subject, however, . Each Purchaser further represents and warrants to compliance with Federal securities laws. You acknowledge the Company that such Purchaser has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of investing in the Notes and is aware that the Notes have not been registered under the Securities Act or the securities laws of any state state, and you understand that the Notes must be held indefinitely unless they are subsequently registered sale of each Note is predicated upon such sale being exempt from registration as an exempt transaction under applicable federal and state securities laws, and that no state or federal governmental authorities have made any finding or determination relating to the Securities Act Notes, and that no state or an exemption from such registration is availablefederal governmental authority has or will recommend or endorse the Notes. You have been advised that Each Purchaser further represents and warrants to the Company does not contemplate registeringthat at least one of the following statements is an accurate representation as to the source of funds to be used by such Purchaser to pay the purchase price of the Notes purchased by it hereunder (respectively, the "SOURCE"):
(a) The Source is an "insurance company general account" within the meaning of Department of Labor Prohibited Transaction Exemption ("PTE") 95-60 (issued July 12, 1995), and there is not legally required no employee benefit plan (treating as a single plan, all employee benefit plans maintained by the same employer or employee organization) with respect to registerwhich the amount of the general account reserves and liabilities for all contracts held by or on behalf of such employee benefit plan exceed ten percent (10%) of the total reserves and liabilities of such general account (exclusive of separate account liabilities) plus surplus, as set forth in the Notes under the Securities Act.NAIC Annual Statement filed with such Purchaser's state of domicile;
(b) Each of you further represents that either: (i) no part of the funds used by you to purchase the Notes constituted assets allocated to any separate account maintained by you; or (ii) no part of the funds used by you to purchase the Notes constituted assets allocated to any separate account maintained by you such that the application of such funds will constitute a prohibited transaction under Section 406 of ERISA; or (iii) all or a part of such funds constituted assets of The Source is one or more separate accounts accounts, trusts or a commingled pension trust maintained by youthe Purchaser within the meaning of PTE 90-1 (issued January 29, 1990) and you have the Purchaser has disclosed to the Company the names of such employee benefit plans whose assets in such separate account or accounts or pension trusts exceed 10% of the total assets or are expected to exceed 10% of the total assets of such account or accounts or trusts as of the date of such purchase and the Company has advised you in writing that the Company is not a party-in-interest nor are the Notes employer securities with respect to the particular employee benefit plans disclosed to the Company by you as aforesaid (for the purpose of this clause (iiib), all employee benefit plans maintained by the same employer or employee organization are deemed to be a single plan). As used herein;
(c) The Source is a bank collective investment fund maintained by the Purchaser within the meaning of PTE 91-38 (issued July 12, 1991) and the Purchaser has disclosed to the Company the names of such employee benefit plans whose assets in such collective investment fund exceed 10% of the total assets or are expected to exceed 10% of the total assets of such fund as of the date of such purchase (for the purpose of this clause (c), all employee benefit plans maintained by the same employer or employee organization are deemed to be a single plan);
(d) The Source is one or more employee benefit plans, each of which has been identified to the Company in writing;
(e) The Source is one or more pension funds, trust funds or agency accounts, each of which is a "governmental plan" as defined in Section 3(32) of ERISA;
(f) The Source is an "investment fund" managed by a "qualified professional asset manager" or "QPAM" (as defined in Part V of PTE 84-14, issued March 13, 1984), provided that no other party to the transactions described in this Agreement and no "affiliate" of such other party (as defined in Section V(c) of PTE 84-14) has at this time, and during the immediately preceding one year has exercised the authority to appoint or terminate said QPAM as manager of the assets of any plan identified in writing pursuant to this clause (f) or to negotiate the terms of said QPAM's management agreement on behalf of any such identified plans; or
(g) The Source consists of funds which do not constitute "separate account," plan assets"party-in-interest," "employer securities," and "employee benefit plan" have the meanings assigned to them in ERISA.
Appears in 1 contract
Sources: Note Purchase Agreement (Crown Pacific Partners L P)
Representations of the Purchasers. (a) As an inducement to, and as part of the Company's consideration for the sale of the Original 1996 Senior Notes pursuant Each Purchaser severally represents to the Original Agreement and for the issue of the Notes pursuant to this Agreement, each of you represents, respectively, and in entering into this Agreement the Company understands, that it is (i) you are an a Qualified Institutional Holder, Buyer or (ii) you an Accredited Investor and is purchasing the Notes in the ordinary course of its business solely for its own account or for accounts of investors who are acquiring Notes Accredited Investors for whom such Purchaser acts as a duly authorized fiduciary or agent and as to which account such Purchaser exercises sole investment discretion, in each case for the purpose of investment and for your own account and not with investment, without a view to the distribution thereof; provided that or resale of such Notes, but subject, in any event, to the disposition of your Property shall the Notes being at all times be within such Purchaser’s control.
(b) Each Purchaser severally represents to the Company that it has such knowledge and remain within your control, subject, howeverexperience in financial and business matters that it is capable of evaluating the merits and risks of a purchase of the Note for itself or, to compliance with Federal securities lawsthe extent such Purchaser is purchasing the Note other than from its own account, for each person for whose account such Purchaser is acquiring any Notes, and each Purchaser has determined that the Note is a suitable investment for itself or, to the extent such Purchaser is purchasing the Note other than from its own account, for each person for whose account such Purchaser is acquiring any Notes, both in the nature and the principal amount of the Note being acquired. You acknowledge Each Purchaser acknowledges that it has received the information described in Section 5.3 concerning the Company and the Note and has been given the opportunity to ask questions of and receive answers from representatives of the Company.
(c) Each Purchaser acknowledges that the Company is entering into this Note in reliance upon the representations, warranties and acknowledgements of the Purchasers and agrees that its representations, warranties and acknowledgements shall survive the execution and delivery of this Note and the date of the Closing.
(d) Each Purchaser understands that the Notes have not been registered under the Securities Act or and may be resold only if registered pursuant to the laws provisions of any state and you understand that the Notes must be held indefinitely unless they are subsequently registered under the Securities Act or if an exemption from such registration is available. You have been advised that the Company does not contemplate registering, except under circumstances where neither such registration nor such an exemption is required by law, and is not legally required to register, the Notes under the Securities Act.
(b) Each of you further represents that either: (i) no part of the funds used by you to purchase the Notes constituted assets allocated to any separate account maintained by you; or (ii) no part of the funds used by you to purchase the Notes constituted assets allocated to any separate account maintained by you such that the application of such funds will constitute a prohibited transaction under Section 406 of ERISA; or (iii) all or a part of such funds constituted assets of one or more separate accounts maintained by you, and you have disclosed to the Company the names of such employee benefit plans whose assets in such separate account or accounts exceed 10% of the total assets or are expected to exceed 10% of the total assets of such account or accounts as of the date of such purchase and the Company has advised you in writing that the Company is not a party-in-interest nor are required to register the Notes employer securities with respect to the particular employee benefit plans disclosed to the Company by you as aforesaid (for the purpose of this clause (iii), all employee benefit plans maintained by the same employer or employee organization are deemed to be a single plan). As used herein, the terms "separate account," "party-in-interest," "employer securities," and "employee benefit plan" have the meanings assigned to them in ERISANotes.
Appears in 1 contract
Sources: Note Purchase Agreement (Turning Point Brands, Inc.)
Representations of the Purchasers. Each Purchaser (ai) As represents ---------------------------------------------- that it is an inducement toinsurance company regulated as an insurer under the laws of a jurisdiction within the United States of America, and as part of the Company's consideration for the sale of the Original 1996 Senior Notes pursuant to the Original Agreement and for the issue of the Notes pursuant to this Agreement, each of you represents, respectively, (ii) represents and in entering into this Agreement the Company understands, that (i) you are an Institutional Holder, (ii) you are such Purchaser is acquiring the Notes for the purpose of investment and for your own account and not with a view to the distribution thereof, and that such Purchaser has no present intention of selling, negotiating or otherwise disposing of the Notes and (iii) acknowledges that this Note has not been registered under the Securities Act of 1933, as amended, or any state securities law, and may not be sold, assigned, transferred or otherwise disposed of in the absence of an effective registration statement under the Securities Act of 1933, as amended, and applicable state securities laws, or an exemption from such registration; provided it being understood, however, that the disposition of your Property such Purchaser's property shall at all times be and remain within your its control, subject, however, to compliance with Federal securities laws. You acknowledge that the Notes have not been registered under the Securities Act or the laws of any state and you understand that the Notes must be held indefinitely unless they are subsequently registered under the Securities Act or an exemption from such registration is available. You have been advised that the Company does not contemplate registering, and is not legally required to register, the Notes under the Securities Act.
(b) Each of you Such Purchaser further represents that either: (i) no part of the funds used Original Notes to be surrendered by you to purchase it for cancellation are held in, and the Notes constituted assets allocated to any separate account maintained being acquired by you; or it are being acquired for, an "insurance company general account" within the meaning of Department of Labor Prohibited Transaction Exemption 95-60 (iiissued July 12, 1995) and there is no part of the funds used by you to purchase the Notes constituted assets allocated to any separate account maintained by you such that the application of such funds will constitute a prohibited transaction under Section 406 of ERISA; or (iii) all or a part of such funds constituted assets of one or more separate accounts maintained by you, and you have disclosed to the Company the names of such employee benefit plans whose assets in such separate account or accounts exceed 10% of the total assets or are expected to exceed 10% of the total assets of such account or accounts plan, treating as of the date of such purchase and the Company has advised you in writing that the Company is not a party-in-interest nor are the Notes employer securities with respect to the particular employee benefit plans disclosed to the Company by you as aforesaid (for the purpose of this clause (iii)single plan, all employee benefit plans maintained by the same employer or employee organization are deemed organization, with respect to be a single which the amount of the general account reserves and liabilities for all contracts held by or on behalf of such plan), exceeds ten percent (10%) of the total reserves and liabilities of such general account (exclusive of separate account liabilities) plus surplus, as set forth in the NAIC Annual Statement filed with such Purchaser's state of domicile. As used hereinin this (S)3.2, the terms "separate account," "party-in-interest," "employer securities," and "employee benefit plan" and "separate account" shall have the respective meanings assigned to them such terms in Section 3 of ERISA.. BEI Technologies, Inc. Assumption Agreement
Appears in 1 contract
Representations of the Purchasers. (a) As an inducement to, and as part of the Company's consideration for the sale of the Original 1996 Senior Notes pursuant to the Original Agreement and for the issue of the Notes pursuant to this Agreement, each of you represents, respectivelyYou represent, and in entering into this Agreement the Company understands, that (i) you are an Institutional Holder, "accredited investor" within the meaning of Regulation D promulgated by the Securities and Exchange Commission and (ii) you are acquiring the Notes for the purpose of investment and for your own account and not with a view to the distribution thereof, and that you have no present intention of selling, negotiating or otherwise disposing of the Notes; provided that the disposition of your Property shall at all times be and remain within your control, subject, however, to compliance with Federal securities laws. You acknowledge that the Notes have not been registered under the Securities Act or the laws of any state and you understand that the Notes must be held indefinitely unless they are subsequently registered under the Securities Act or an exemption from such registration is available. You have been advised that the Company does not contemplate registering, and is not legally required to register, the Notes under the Securities Act.
(b) Each of you You further represents represent that either: (i) no part at least one of the following statements concerning each source of funds to be used by you to purchase the Notes constituted assets allocated to any separate account maintained by you; or (ii) no part is accurate as of the Closing Date:
(i) the source of funds to be used by you to pay the purchase price of the Notes constituted assets allocated to any separate account maintained is an "insurance company general account" within the meaning of Department of Labor Prohibited Transaction Exemption 95-60 ("PTE") (issued July 12, 1995) and the purchase of the Notes by you such that is eligible for and satisfies the application requirements of such funds will constitute a prohibited transaction under Section 406 of ERISA; or PTE 95-60;
(iiiii) all or a part of such funds constituted constitute assets of one or more separate accounts accounts, trusts or a commingled pension trust maintained by you, and you have disclosed to the Company the names of such employee benefit plans whose assets in such separate account or accounts or pension trusts exceed 10% of the total assets or are expected to exceed 10% of the total assets of such account or accounts or trusts as of the date of such purchase and (for the Company has advised you in writing that the Company is not a party-in-interest nor are the Notes employer securities with respect to the particular purpose of this clause (ii), all employee benefit plans maintained by the same employer or employee organization are deemed to be a single plan);
(iii) all or part of such funds constitute assets of a bank collective investment fund maintained by you, and you have disclosed to the Company by you names of such employee benefit plans whose assets in such collective investment fund exceed 10% of the total assets or are expected to exceed 10% of the total assets of such fund as aforesaid of the date of such purchase (for the purpose of this clause (iii), all employee benefit plans maintained by the same employer or employee organization are deemed to be a single plan);
(iv) all or part of such funds constitute assets of one or more employee benefit plans, each of which has been identified to the Company in writing;
(v) you are acquiring the Notes for the account of one or more pension funds, trust funds or agency accounts, each of which is a "governmental plan" as defined in Section 3(32) of ERISA;
(vi) the source of funds is an "investment fund" managed by a "qualified professional asset manager" or "QPAM" (as defined in Part V of PTE 84-14, issued March 13, 1984), provided that no other party to the transactions described in this Agreement and no "affiliate" of such other party (as defined in Section V(c) of PTE 84-14) has at this time, and during the immediately preceding one year has exercised the authority to appoint or terminate said QPAM as manager of the assets of any plan identified in writing pursuant to this clause (vi) or to negotiate the terms of said QPAM's management agreement on behalf of any such identified plans; or
(vii) if you are other than an insurance company, all or a portion of such funds consists of funds which do not constitute "plan assets". The Company shall deliver a certificate on the Closing Date which certificate shall either state that (A) it is neither a "party in interest" (as defined in Title I, Section 3(14) of ERISA) nor a "disqualified person" (as defined in Section 4975(e)(2) of the Internal Revenue Code of 1986, as amended), with respect to any plan identified pursuant to paragraphs (ii), (iii) or (iv) above, or (B) with respect to any plan identified pursuant to paragraph (vi) above, neither it nor any "affiliate" (as defined in Section V(c) of PTE 84-14) is described in the proviso to said paragraph (vi). As used hereinin this ss.3.2(b), the terms "separate account," "party-in-interest," "employer securities," and "employee benefit plan" shall have the respective meanings assigned to them in ERISAERISA and the term "plan assets" shall have the meaning assigned to it in Department of Labor Regulation 29 C.F.R. ss.2510.3-101.
(c) You acknowledge that the Company and First Union National Bank of North Carolina, as Collateral Agent, are entering into the Security Agreement for your benefit and that you shall be bound by the terms thereof.
Appears in 1 contract
Representations of the Purchasers. (a) As an inducement to, and as part of the Company's consideration for the sale of the Original 1996 Senior Notes pursuant to the Original Agreement and for the issue of the Notes pursuant to this Agreement, each of you represents, respectivelyYou represent, and in entering into this Agreement the Company understands, that (i) you are an Institutional Holder, (ii) you are acquiring the Notes for the purpose of investment and for your own account and not with a view to the any distribution thereof; , provided that the disposition of your Property property shall at all times be and remain within your control, subject, however, to compliance with Federal securities laws. You acknowledge that the Notes have not been registered under the Securities Act or the laws of any state and you understand that the Notes must be held indefinitely unless they are subsequently registered under the Securities Act or an exemption from such registration is available. You have been advised that the Company does not contemplate registering, and is not legally required to register, the Notes under the Securities Act.
(b) Each of you . You further represents represent that either: (i) no part of the funds to be used by you to purchase the Notes constituted will constitute assets allocated to any separate account maintained by you; or (ii) no part of the funds to be used by you to purchase the Notes constituted will constitute assets allocated to any separate account maintained by you such that the application of such funds will constitute a prohibited transaction under Section 406 of ERISA; or (iii) all or a part of such funds constituted will constitute assets of one or more separate accounts maintained by you, and you have disclosed to the Company the names of such employee benefit plans whose assets in such separate account or accounts exceed 10% of the total assets or are expected to exceed 10% of the total assets of such account or accounts as of the date of such purchase purchase, and the Company has advised you in writing that the Company is not a party-in-interest nor are the Notes employer securities with respect to the particular employee benefit plans disclosed to the Company by you as aforesaid aforesaid. (for For the purpose of this clause (iii), all employee benefit plans maintained by the same employer or employee organization are deemed to be a single plan). .) As used herein, the terms "separate account," "party-in-interest," "employer securities," and "employee benefit plan" have the meanings assigned to them in ERISA.
Appears in 1 contract
Representations of the Purchasers. (a) As an inducement to, Each Purchaser represents and as part warrants that at least one of the Company's consideration for following statements concerning each source of funds to be used by it to pay the sale Purchase Price is accurate as of the Original 1996 Senior Notes pursuant Closing Date:
(i) the source of funds to be used by it to pay the Original Agreement and for the issue purchase price of the Notes pursuant is an "insurance company general account" within the meaning of Department of Labor Prohibited Transaction Exemption ("PTE") 95-60 (issued July 12, 1995) and there is no employee benefit plan, treating as a single plan, all plans maintained by the same employer or employee organization, with respect to this Agreementwhich the amount of the general account reserves and liabilities for all contracts held by or on behalf of such plan, each exceed ten percent (10%) of you representsthe total reserves and liabilities of such general account (exclusive of separate account liabilities) plus surplus, respectively, and as set forth in entering into this Agreement the Company understands, that (i) you are an Institutional Holder, NAIC Annual Statement filed with its state of domicile;
(ii) you are acquiring Notes for the purpose of investment and for your own account and not with a view to the distribution thereof; provided that the disposition of your Property shall at all times be and remain within your control, subject, however, to compliance with Federal securities laws. You acknowledge that the Notes have not been registered under the Securities Act or the laws of any state and you understand that the Notes must be held indefinitely unless they are subsequently registered under the Securities Act or an exemption from such registration is available. You have been advised that the Company does not contemplate registering, and is not legally required to register, the Notes under the Securities Act.
(b) Each of you further represents that either: (i) no part of the funds used by you to purchase the Notes constituted assets allocated to any separate account maintained by you; or (ii) no part of the funds used by you to purchase the Notes constituted assets allocated to any separate account maintained by you such that the application of such funds will constitute a prohibited transaction under Section 406 of ERISA; or (iii) all or a part of such funds constituted constitute assets of one or more separate accounts accounts, trusts or a commingled pension trust maintained by youit, and you have it has disclosed to each of the Company Collateral Trustee, the Issuer, the Owner Beneficiary and each Project Borrower, the names of such employee benefit plans whose assets in such separate account or accounts or pension trusts exceed 10% of the total assets or are expected to exceed 10% of the total assets of such account or accounts or trusts as of the date of such purchase and (for the Company has advised you in writing that the Company is not a party-in-interest nor are the Notes employer securities with respect to the particular purpose of this clause (ii), all employee benefit plans maintained by the same employer or employee organization are deemed to be a single plan);
(iii) all or part of such funds constitute assets of a bank collective investment fund maintained by it, and it has disclosed to each of the Company by you Collateral Trustee, the Issuer, the Owner Beneficiary and each Project Borrower, the names of such employee benefit plans whose assets in such collective investment fund exceed 10% of the total assets or are expected to exceed 10% of the total assets of such fund as aforesaid of the date of such purchase (for the purpose of this clause (iii), all employee benefit plans maintained by the same employer or employee organization are deemed to be a single plan). As used herein;
(iv) all or part of such funds constitute assets of one or more employee benefit plans, each of which has been identified to each of the Collateral Trustee, the terms Issuer, the Owner Beneficiary and each Project Borrower, in writing;
(v) it is acquiring the Notes for the account of one or more pension funds, trust funds or agency accounts, each of which is a "separate account," "party-in-interest," "employer securities," and "employee benefit governmental plan" as defined in Section 3(32) of ERISA;
(vi) the source of funds is an "investment fund" managed by a "qualified professional asset manager" or "QPAM" (as defined in Part V of PTE 84-14, issued March 13, 1984), provided that no other party to the transactions described in this Participation Agreement and no "affiliate" of such other party (as defined in Section V(c) of PTE 84-14) has at this time, or during the immediately preceding one year exercised the authority to appoint or terminate said QPAM as manager of the assets of any plan identified in writing pursuant to this clause (vi) or to negotiate the terms of said QPAM's management agreement on behalf of any such identified plans; or
(vii) if it is other than an insurance company, all or a portion of such funds consists of funds which do not constitute "plan assets".
(b) Each Purchaser represents that it is an "accredited investor" (as defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act of 1933, as amended) acting for its own account (and not for the account of others) or as a fiduciary or agent for others (which others are also "accredited investors"). Each Purchaser further represents that such Purchaser is acquiring the Notes for the purpose of investment and not with a view to the distribution thereof, and that such Purchaser has no present intention of selling, negotiating or otherwise disposing of the Notes; it being understood, however, that the disposition of such Purchaser's property shall at all times be and remain within its control. Each Purchaser understands that the Notes have not been registered under the meanings assigned to them Securities Act of 1933, as amended (the "Securities Act"), or under any state securities laws, and may not be resold in ERISAthe absence of registration unless such sale is exempt from registration under the Securities Act and any applicable state securities laws.
Appears in 1 contract
Representations of the Purchasers. (a) As an inducement to, Each Purchaser represents and as part warrants that at least one of the Company's consideration for following statements concerning each source of funds to be used by it to pay the sale Purchase Price is accurate as of the Original 1996 Senior Notes pursuant Closing Date:
(i) the source of funds to be used by it to pay the Original Agreement and for the issue purchase price of the Notes pursuant is an "insurance company general account" within the meaning of Department of Labor Prohibited Transaction Exemption ("PTE") 95-60 (issued July 12, 1995) and there is no employee benefit plan, treating as a single plan, all plans maintained by the same employer or employee organization, with respect to this Agreementwhich the amount of the general account reserves and liabilities for all contracts held by or on behalf of such plan, each exceed ten percent (10%) of you representsthe total reserves and liabilities of such general account (exclusive of separate account liabilities) plus surplus, respectively, and as set forth in entering into this Agreement the Company understands, that (i) you are an Institutional Holder, NAIC Annual Statement filed with its state of domicile;
(ii) you are acquiring Notes for the purpose of investment and for your own account and not with a view to the distribution thereof; provided that the disposition of your Property shall at all times be and remain within your control, subject, however, to compliance with Federal securities laws. You acknowledge that the Notes have not been registered under the Securities Act or the laws of any state and you understand that the Notes must be held indefinitely unless they are subsequently registered under the Securities Act or an exemption from such registration is available. You have been advised that the Company does not contemplate registering, and is not legally required to register, the Notes under the Securities Act.
(b) Each of you further represents that either: (i) no part of the funds used by you to purchase the Notes constituted assets allocated to any separate account maintained by you; or (ii) no part of the funds used by you to purchase the Notes constituted assets allocated to any separate account maintained by you such that the application of such funds will constitute a prohibited transaction under Section 406 of ERISA; or (iii) all or a part of such funds constituted constitute assets of one or more separate accounts accounts, trusts or a commingled pension trust maintained by youit, and you have it has disclosed to each of the Company Collateral Trustee, the Issuer, the Owner Beneficiary and each Project Borrower, the names of such employee benefit plans whose assets in such separate account or accounts or pension trusts exceed 10% of the total assets or are expected to exceed 10% of the total assets of such account or accounts or trusts as of the date of such purchase and (for the Company has advised you in writing that the Company is not a party-in-interest nor are the Notes employer securities with respect to the particular purpose of this clause (ii), all employee benefit plans maintained by the same employer or employee organization are deemed to be a single plan);
(iii) all or part of such funds constitute assets of a bank collective investment fund maintained by it, and it has disclosed to each of the Company by you Collateral Trustee, the Issuer, the Owner Beneficiary and each Project Borrower, the names of such employee benefit plans whose assets in such collective investment fund exceed 10% of the total assets or are expected to exceed 10% of the total assets of such fund as aforesaid of the date of such purchase (for the purpose of this clause (iii), all employee benefit plans maintained by the same employer or employee organization are deemed to be a single plan). As used herein;
(iv) all or part of such funds constitute assets of one or more employee benefit plans, each of which has been identified to each of the Collateral Trustee, the terms Issuer, the Owner Beneficiary and each Project Borrower, in writing;
(v) it is acquiring the Notes for the account of one or more pension funds, trust funds or agency accounts, each of which is a "separate account," "party-in-interest," "employer securities," and "employee benefit governmental plan" as defined in Section 3(32) of ERISA;
(vi) the source of funds is an "investment fund" managed by a "qualified professional asset manager" or "QPAM" (as defined in Part V of PTE 84-14, issued March 13, 1984), provided that no other party to the transactions described in this Participation Agreement and no "affiliate" of such other party (as defined in Section V(c) of PTE 84-14) has at this time, or during the immediately preceding one year exercised the authority to appoint or terminate said QPAM as manager of the assets of any plan Participation Agreement identified in writing pursuant to this clause (vi) or to negotiate the terms of said QPAM's management agreement on behalf of any such identified plans; or
(vii) if it is other than an insurance company, all or a portion of such funds consists of funds which do not constitute "plan assets".
(b) Each Purchaser represents that it is an "accredited investor" (as defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act of 1933, as amended) acting for its own account (and not for the account of others) or as a fiduciary or agent for others (which others are also "accredited investors"). Each Purchaser further represents that such Purchaser is acquiring the Notes for the purpose of investment and not with a view to the distribution thereof, and that such Purchaser has no present intention of selling, negotiating or otherwise disposing of the Notes; it being understood, however, that the disposition of such Purchaser's property shall at all times be and remain within its control. Each Purchaser understands that the Notes have not been registered under the meanings assigned to them Securities Act of 1933, as amended (the "Securities Act"), or under any state securities laws, and may not be resold in ERISAthe absence of registration unless such sale is exempt from registration under the Securities Act and any applicable state securities laws.
Appears in 1 contract
Representations of the Purchasers. (a) As Each of you acknowledges that you are an inducement to, and "accredited investor" as part defined in Rule 501(a) of the Company's consideration for Securities Act as promulgated by the sale of the Original 1996 Senior Notes pursuant to the Original Agreement and for the issue of the Notes pursuant to this Agreement, each SEC. Each of you represents, respectively, and in entering into this Agreement the Company understands, that (i) you are an Institutional Holder, (ii) you are acquiring the Notes and the Warrants for the purpose of investment and for your own account and not with a view to the resale or distribution thereof, and that you have no present intention of selling, negotiating or otherwise disposing of the Notes and the Warrants; provided that the disposition of your Property property shall at all times be and remain within your control, subject, however, to compliance with Federal securities laws. You acknowledge that the Notes Notes, the Warrants and the Company Common Stock to be issued upon exercise of the Warrants have not been registered under the Securities Act or the laws of any state and you understand that the Notes Notes, the Warrants and the Company Common Stock to be issued upon exercise of the Warrants must be held indefinitely unless they are subsequently registered under the Securities Act or an exemption from such registration is available. You have been advised that the Company does not contemplate registering, and is not legally required to register, the Notes under the Securities Act.
(b) Each of you You further represents represent that either: (i) either no part of the funds to be used by you to purchase the Notes constituted are derived from the assets allocated of an employee benefit plan that is subject to any separate account maintained by you; the Employee Retirement Income Security Act of 1974 ("ERISA") or (ii) no part Section 4975 of the funds used by you Code, except with respect to purchase the Notes constituted assets allocated to any separate account maintained by you such those plans that the application of such funds will constitute a prohibited transaction under Section 406 of ERISA; or (iii) all or a part of such funds constituted assets of one or more separate accounts maintained by you, and you have disclosed been identified to the Company the names of such employee benefit plans whose assets in such separate account or accounts exceed 10% of the total assets or are expected to exceed 10% of the total assets of such account or accounts as of the date of such purchase and the by you. The Company has advised represented to you in writing that the Company is not a party-in-interest nor are the Notes employer securities with respect to the particular employee benefit plans disclosed to the Company by you as aforesaid (for the purpose of this clause (iii), all employee benefit plans maintained by the same employer or employee organization are deemed to be a single plan). As used herein, the terms "separate account," "party-in-interest," under ERISA or a "employer securities,disqualified person" and "under the Code, with respect to any such employee benefit plan identified to the Company by you. As used in this Section, the term "plan" shall have the meanings meaning assigned to them it in ERISACode section 4975.
(c) No provision set forth in this Section 3.2 shall be construed to relieve the Company of its obligations pursuant to Section 5.9.
Appears in 1 contract
Sources: Purchase Agreement (Worldcorp Inc)
Representations of the Purchasers. (a) As an inducement to, Each Purchaser represents and as part warrants that at least one of the Company's consideration for following statements concerning each source of funds to be used by it to pay the sale Purchase Price is accurate as of the Original 1996 Senior Notes pursuant Closing Date:
(i) the source of funds to be used by it to pay the Original Agreement and for the issue purchase price of the Notes pursuant is an "insurance company general account" within the meaning of Department of Labor Prohibited Transaction Exemption ("PTE") 95-60 (issued July 12, 1995) and there is no employee benefit plan, treating as a single plan, all plans maintained by the same employer or employee organization, with respect to this Agreementwhich the amount of the general account reserves and liabilities for all contracts held by or on behalf of such plan, each exceed ten percent (10%) of you representsthe total reserves and liabilities of such general account (exclusive of separate account liabilities) plus surplus, respectively, and as set forth in entering into this Agreement the Company understands, that (i) you are an Institutional Holder, NAIC Annual Statement filed with its state of domicile;
(ii) you are acquiring Notes for the purpose of investment and for your own account and not with a view to the distribution thereof; provided that the disposition of your Property shall at all times be and remain within your control, subject, however, to compliance with Federal securities laws. You acknowledge that the Notes have not been registered under the Securities Act or the laws of any state and you understand that the Notes must be held indefinitely unless they are subsequently registered under the Securities Act or an exemption from such registration is available. You have been advised that the Company does not contemplate registering, and is not legally required to register, the Notes under the Securities Act.
(b) Each of you further represents that either: (i) no part of the funds used by you to purchase the Notes constituted assets allocated to any separate account maintained by you; or (ii) no part of the funds used by you to purchase the Notes constituted assets allocated to any separate account maintained by you such that the application of such funds will constitute a prohibited transaction under Section 406 of ERISA; or (iii) all or a part of such funds constituted constitute assets of one or more separate accounts accounts, trusts or a commingled pension trust maintained by youit, and you have it has disclosed to each of the Company Collateral Trustee, the Issuer, the Owner Beneficiary and each Project Borrower, the names of such employee benefit plans whose assets in such separate account or accounts or pension trusts exceed 10% of the total assets or are expected to exceed 10% of the total assets of such account or accounts or trusts as of the date of such purchase and (for the Company has advised you in writing that the Company is not a party-in-interest nor are the Notes employer securities with respect to the particular purpose of this clause (ii), all employee benefit plans maintained by the same employer or employee organization are deemed to be a single plan);
(iii) all or part of such funds constitute assets of a bank collective investment fund maintained by it, and it has disclosed to each of the Company by you Collateral Trustee, the Issuer, the Owner Beneficiary and each Project Borrower, the names of such employee benefit plans whose assets in such collective investment fund exceed 10% of the total assets or are expected to exceed 10% of the total assets of such fund as aforesaid of the date of such purchase (for the purpose of this clause (iii), all employee benefit plans maintained by the same employer or employee organization are deemed to be a single plan). As used herein;
(iv) all or part of such funds constitute assets of one or more employee benefit plans, each of which has been identified to each of the Collateral Trustee, the terms Issuer, the Owner Beneficiary and each Project Borrower, in writing;
(v) it is acquiring the Notes for the account of one or more pension funds, trust funds or agency accounts, each of which is a "separate account," "party-in-interest," "employer securities," and "employee benefit governmental plan" as defined in Section 3(32) of ERISA;
(vi) the source of funds is an "investment fund" managed by a "qualified professional asset manager" or "QPAM" (as defined in Part V of PTE 84-14, issued March 13, 1984), provided that no other party to the transactions described in this Agreement and no "affiliate" of such other party (as defined in Section V(c) of PTE 84-14) has at this time, or during the immediately preceding one year exercised the authority to appoint or terminate said QPAM as manager of the assets of any plan identified in writing pursuant to this clause (vi) or to negotiate the terms of said QPAM's management agreement on behalf of any such identified plans; or
(vii) if it is other than an insurance company, all or a portion of such funds consists of funds which do not constitute "plan assets".
(b) Each Purchaser represents that it is an "accredited investor" (as defined in Rule 501 (a)(1), (2), (3) or (7) of Regulation D under the Securities Act of 1933, as amended) acting for its own account (and not for the account of others) or as a fiduciary or agent for others (which others are also "accredited investors"). Each Purchaser further represents that such Purchaser is acquiring the Notes for the purpose of investment and not with a view to the distribution thereof, and that such Purchaser has no present intention of selling, negotiating or otherwise disposing of the Notes; it being understood, however, that the disposition of such Purchaser's property shall at all times be and remain within its control. Each Purchaser understands that the Notes have not been registered under the meanings assigned to them Securities Act of 1933, as amended (the "Securities Act"), or under any state securities laws, and may not be resold in ERISAthe absence of registration unless such sale is exempt from registration under the Securities Act and any applicable state securities laws.
Appears in 1 contract
Representations of the Purchasers. (a) As an inducement to, and as part of the Company's consideration for the sale of the Original 1996 Senior Notes pursuant to the Original Agreement and for the issue of the Notes pursuant to this Agreement, each of you Each Purchaser represents, respectively, and in entering into this Agreement the Company understands, that (i) you are an Institutional Holder, (ii) you are such Purchaser is acquiring the Notes for the purpose of investment and for your own account and not with a view to the distribution thereof, and that such Purchaser has no present intention of selling, negotiating or otherwise disposing of the Notes; provided it being understood, however, that the disposition of your Property such Purchaser's property shall at all times be and remain within your its control, subject, however, to compliance with Federal securities laws. You acknowledge Meritage Corporation Note Agreement
(b) Each Purchaser acknowledges that the Notes have not been registered under the Securities Act of 1933, as amended (the "SECURITIES ACT"), or the laws of any state securities laws and you understand that may not be sold or transferred in the Notes must be held indefinitely unless they are subsequently registered under the Securities Act absence of such registration or an exemption from such registration therefrom under said Act or any applicable state securities laws.
(i) Each Purchaser and each person for whose account any Notes are being acquired is available. You have been advised an "accredited investor" within the meaning of that the Company does not contemplate registering, and is not legally required to register, the Notes term in Rule 501 of Regulation D under the Securities Act; and (ii) each Purchaser has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of a purchase of the Notes for itself and each person for whose account it is acquiring any Notes.
(bd) Each Purchaser acknowledges receipt of, and has read and reviewed, the Confidential Private Placement Memorandum dated June 1998. Each Purchaser has received the opportunity to ask such questions of, and receive answers from, representatives of you the Company, as it deems sufficient.
(e) Each Purchaser further represents that either: at least one of the following statements is an accurate representation as to each source of funds (a "Source") to be used by such Purchaser to pay the purchase price of the Notes to be purchased by such Purchaser hereunder:
(i) the Source is an "insurance company general account" within the meaning of Department of Labor Prohibited Transaction Exemption ("PTE") 95-60 (issued July 12, 1995) and there is no part employee benefit plan, treating as a single plan all plans maintained by the same employer or employee organization, with respect to which the amount of the funds used general account reserves and liabilities for all contracts held by you to purchase or on behalf of such plan, exceeds ten percent (10%) of the Notes constituted assets allocated to any total reserves and liabilities of such general account (exclusive of separate account maintained by youliabilities) plus surplus, as set forth in the NAIC Annual Statement filed with your state of domicile; or or
(ii) no part the Source is either (x) an insurance company pooled separate account, within the meaning of PTE 90 1 (issued January 29, 1990), or (y) a bank collective investment fund, within the meaning of the funds used by you to purchase the Notes constituted assets allocated to any separate account maintained by you such that the application of such funds will constitute a prohibited transaction under Section 406 of ERISA; or PTE 91 38 (iiiissued July 12, 1991) all or a part of such funds constituted assets of one or more separate accounts maintained by youand, and except as you have disclosed to the Company the names of such in writing pursuant to this subparagraph (ii), no employee benefit plans whose assets in such separate account plan or accounts exceed 10% group of the total assets or are expected to exceed 10% of the total assets of such account or accounts as of the date of such purchase and the Company has advised you in writing that the Company is not a party-in-interest nor are the Notes employer securities with respect to the particular employee benefit plans disclosed to the Company by you as aforesaid (for the purpose of this clause (iii), all employee benefit plans maintained by the same employer or employee organization are deemed beneficially owns more than 10% of all assets allocated to be such pooled separate account or collective investment fund; or
(iii) the Source constitutes assets of an "investment fund" (within the meaning of Part V of the QPAM Exemption) managed by a single plan"qualified professional asset manager" or "QPAM" (within the meaning of Part V of the QPAM Exemption). As used herein, the terms "separate account," "party-in-interest," "employer securities," and "no employee benefit plan" have 's assets that are included in such investment fund, when combined with the meanings assigned to them in ERISA.assets of all other employee benefit plans established or maintained by the same employer or by an affiliate (within the meaning of Section V(c)(1) of the QPAM Exemption) of such employer or by the same employee organization and managed by such QPAM, exceed 20% of the total client assets managed by such QPAM, the conditions of Part l(c) and (g) of the QPAM Exemption are satisfied, neither the QPAM nor a person controlling Meritage Corporation Note Agreement
Appears in 1 contract
Sources: Note Agreement (Meritage Corp)