Agreement to Purchase and Sell the Purchaser Agreement to Lend Sample Clauses

Open Split View

Download

Share

Cite

Agreement to Purchase and Sell the Purchaser Agreement to Lend 

Sample 1

Save

Copy

Related to Agreement to Purchase and Sell the Purchaser Agreement to Lend

• Agreement to Purchase and Sell Subject to the terms and conditions contained herein, at the Closing, Reliant shall, or shall cause its Affiliates to, sell, transfer, convey and assign to Oscient, and Oscient shall purchase and accept from Reliant or its Affiliates, all right, title, and interest of Reliant and its Affiliates in and to the following assets of Reliant or its Affiliates (collectively, the “Acquired Assets”), free and clear of all Security Interests: (a) the Registrations (provided that Reliant shall be permitted to retain one copy of the Registrations for archival purposes); (b) the Promotional Materials; (c) the Product Intellectual Property (it being agreed and acknowledged that (i) Reliant does not have a license to, and the Acquired Assets do not include, any rights in respect of the [***] Patents outside the United States, its territories and possessions (other than the right to manufacture or have manufactured the Reliant Products (as defined in the Settlement Agreement) outside the United States, its territories and possessions solely for distribution and sale in the United States, its territories and possessions), and (ii) any Intellectual Property developed, created or discovered by or on behalf of Oscient after the Closing relating to any of the clinical development and methods of use of the Product, in any formulation or dosage form, and any Intellectual Property that is otherwise developed by Oscient after the Closing shall be owned solely by Oscient); (d) the Assigned Contracts and Orders; [***]: Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. (e) the Inventory; (f) any and all rights to develop, market and promote any Combination Product, other than Excluded Combination Products (it being agreed and acknowledged that, Reliant has no license from any third party (other than Ethypharm) regarding any Intellectual Property related to combination products or products other than the 43mg, 87mg and 130mg formulations that are the subject of NDA 21-695 as in effect on the date hereof); (g) any claims or benefits in, to or under any express or implied warranties from suppliers of goods or services relating to the Inventory; (h) to the extent permitted by Law and in each case to the extent in Reliant’s possession or reasonably available to Reliant without the need to incur any undue expense, all books and records, including, without limitation, sales records, price lists and catalogues, call notes and call histories, supply records, customer lists and purchasing histories, inventory records and correspondence files, relating primarily or exclusively to the Product; provided, however, that Reliant or its Affiliates may retain a copy of any such books and records to the extent necessary for Tax, accounting, litigation or other valid business purposes; provided, further, that the Acquired Assets shall not include either the Pricing Contracts (or any information contained therein) or the Bundled Contracts; (i) the rights under the Settlement Agreement transferred to Oscient pursuant to the Assignment of Settlement Agreement; and (j) the rights of Reliant under the Ethypharm Agreement transferred to Oscient pursuant to the Ethypharm Agreement Transfer Agreement.

• Agreement to Purchase and Sell Stock Subject to the terms and conditions of this Agreement, the Company agrees to sell to each of the Investors at the Closing (as defined below), and each of the Investors agrees to purchase from the Company at the Closing, the number of shares of the Company's Common Stock set forth opposite such Investor's name on the Schedule of Investors (collectively, the "Shares") at a price of $39.00 per share.

• Agreement to Buy and Sell Subject to the terms and conditions set forth herein, Seller agrees to sell the Property to Buyer, and Buyer hereby agrees to acquire the Property from Seller.

• Amendment to Purchase Agreement Section 1.3 of the Purchase Agreement is hereby amended and restated in its entirety to read as follows:

• The Purchase Agreement This Agreement has been duly authorized, executed and delivered by the Company and the Guarantors.

• Agreement to Sell and Purchase (a) Upon the terms and subject to the conditions set forth herein, the Company agrees to issue and sell an aggregate of 2,438,491 ADSs (in the aggregate, the “Firm ADSs”) and ADS Warrants to purchase 1,219,246 ADSs (in the aggregate, the “Firm ADS Warrants,” and, collectively with the Firm ADSs, the “Firm Securities”) to the several Underwriters, and each Underwriter agrees to purchase, severally and not jointly, at the Closing (as defined below), the following securities of the Company: (i) The number of Firm ADSs set forth opposite the name of such Underwriter on Schedule I hereto; and (ii) Firm ADS Warrants to purchase the number of ADSs set forth opposite the name of such Underwriter on Schedule I hereto, which ADS Warrants shall have an exercise price of $8.03 per whole ADS, subject to adjustment as provided in the ADS Warrants. (b) The aggregate purchase price for the Firm Securities shall equal the sum of the amounts set forth opposite the name of each Underwriter on Schedule I hereto (the “Closing Purchase Price”). The combined purchase price for one ADS and one ADS Warrant to purchase 0.5 ADS shall be $6.4914 (the “Combined Purchase Price”), which shall be allocated as $6.4821 per ADS (the “ADS Purchase Price”) and $0.0093 per ADS Warrant (the “ADS Warrant Purchase Price”), provided that, solely in connection with ADSs and ADS Warrants that are sold to Invesco Asset Management Limited, the combined purchase price for one ADS and one ADS Warrant to purchase 0.5 ADS shall be $6.6659. (c) Upon the basis of the representations, warranties, covenants and agreements of the Company herein contained, and subject to all the terms and conditions set forth herein, the Underwriters are hereby granted an option (the “Over-Allotment Option”) to purchase from the Company, in the aggregate, up to 292,618 Additional ADSs and 146,309 Additional ADS Warrants, which may be purchased in any combination of Additional ADSs and/or Additional ADS Warrants at the ADS Purchase Price and/or the ADS Warrant Purchase Price, respectively. The Additional Securities may be purchased solely for the purpose of covering over-allotments, if any, made in connection with the offering of the Firm Securities. The Over-Allotment Option may be exercised by the Representative as to all (at any time) or any part (from time to time) of the Additional Securities at any time within 30 days after the date of this Agreement. In connection with an exercise of the Over-Allotment Option, (a) the purchase price to be paid for the Additional ADSs is equal to the product of the ADS Purchase Price multiplied by the number of Additional ADSs and (b) the purchase price to be paid for the Additional ADS Warrants is equal to the product of the ADS Warrant Purchase Price multiplied by the number of Additional ADS Warrants (the aggregate purchase price to be paid at an Additional Closing (as defined below), the “Additional Closing Purchase Price”).

• Amendments to the Purchase Agreement The parties to this Assignment hereby agree to amend the Purchase Agreement as follows: (a) The first sentence of Section 7.03(c) of the Purchase Agreement is hereby amended and restated in its entirety as follows: “If so requested by the Purchaser, the Seller shall provide such information regarding the Seller, as servicer of the Mortgage Loans, and each Subservicer (each of the Seller and each Subservicer, for purposes of this paragraph, a “Servicer”), as is requested for the purpose of compliance with Items 1108, 1117 and 1119 of Regulation AB. (b) Section 7.03(d) of the Purchase Agreement is hereby amended and restated in its entirety as follows: “For the purpose of satisfying the reporting obligation under the Exchange Act with respect to any class of asset-backed securities, the Seller shall (or shall cause each Subservicer to) (i) promptly notify the Purchaser, any Master Servicer and any Depositor in writing of (A) any litigation or governmental proceedings pending against the Seller, any Subservicer or any Third-Party Originator that would be material to securityholders, (B) any affiliations or relationships that develop following the closing date of a Securitization Transaction between the Seller, any Subservicer and any of the parties specified in clause (D) of paragraph (a) of this Section (and any other parties identified in writing by the requesting party) with respect to such Securitization Transaction, (C) any Event of Default under the terms of this Agreement or any Reconstitution Agreement, (D) any merger, consolidation or sale of substantially all of the assets of the Seller and (E) the Seller’s entry into an agreement with a Subcontractor to perform or assist the Seller with the performance of any of the Seller’s obligations under this Agreement or any Reconstitution Agreement, and (ii) provide to the Purchaser and any Depositor a description of such proceedings, affiliations or relationships.” (c) Section 7.03 (e) (ii) of the Purchase Agreement is hereby amended and restated in its entirety as follows: “which may be appointed as a successor to the Seller or any Subservicer, the Seller shall provide to the Purchaser, and any Master Servicer at least fifteen (15) calendar days prior to the effective date of such succession or appointment,” (d) Section 7.03 (f) of the Purchase Agreement is hereby amended and restated in its entirety as follows: “In addition to such information as the Seller, as servicer, is obligated to provide pursuant to other provisions of this Agreement, not later than ten (10) days prior to the deadline for the filing of any distribution report on Form 10-D in respect of any Securitization Transaction that includes any of the Mortgage Loans serviced by the Seller or any Subservicer, the Seller or such Subservicer, as applicable, shall, to the extent the Seller or such Subservicer has knowledge, provide to the party responsible for filing such report (including, if applicable, the Master Servicer) notice of the occurrence of any of the following events along with all information, data, and materials related thereto as may be required to be included in the related distribution report on Form 10-D (as specified in the provisions of Regulation AB referenced below): (i) any material modifications, extensions or waivers of pool asset terms, fees, penalties or payments during the distribution period or that have cumulatively become material over time (Item 1121(a)(11) of Regulation AB); (ii) material breaches of pool asset representations or warranties or transaction covenants (Item 1121(a)(12) of Regulation AB); and (iii) information regarding new asset-backed securities issuances backed by the same pool assets, any pool asset changes (such as, additions, substitutions or repurchases), and any material changes in origination, underwriting or other criteria for acquisition or selection of pool assets (Item 1121(a)(14) of Regulation AB). (e) The following is inserted as 7.03 (g) of the Purchase Agreement: “The Seller shall provide to the Purchaser, any Master Servicer and any Depositor, evidence of the authorization of the person signing any certification or statement, copies or other evidence of Fidelity Bond Insurance and Errors and Omission Insurance policy, financial information and reports, and such other information related to the Seller or any Subservicer or the Seller or such Subservicer’s performance hereunder as may be reasonably requested by the Purchaser, any Master Servicer or any Depositor.” (f) Section 7.04 of the Purchase Agreement is hereby amended and restated in its entirety as follows: “On or before March 1 of each calendar year, commencing in 2008, the Servicer shall deliver to the Owner, any Master Servicer and any Depositor a statement of compliance addressed to the Owner, such Master Servicer and such Depositor and signed by an authorized officer of the Servicer, to the effect that (i) a review of the Servicer’s activities during the immediately preceding calendar year (or applicable portion thereof) and of its performance under this Agreement and any applicable Reconstitution Agreement during such period has been made under such officer’s supervision, and (ii) to the best of such officers’ knowledge, based on such review, the Servicer has fulfilled all of its obligations under this Agreement and any applicable Reconstitution Agreement in all material respects throughout such calendar year (or applicable portion thereof) or, if there has been a failure to fulfill any such obligation in any material respect, specifically identifying each such failure known to such officer and the nature and the status thereof. In the event that the Servicer fails to timely comply with this Section 7.04, the Depositor shall use its commercially reasonable efforts to obtain written statements or assurances from the Commission, that such failure to provide the required statement of compliance on a timely basis, and a one time additional failure by the Servicer to comply with this Section 7.04, will not result in any adverse effect on the Depositor or its affiliates with respect to any Shelf Registration on Form S-3 of the Depositor or any of its affiliates. Any costs or expenses incurred by the Depositor or the Master Servicer in obtaining such statement or assurances from the Commission shall be reimbursed to the Depositor or the Master Servicer by the Servicer. In the event that the Depositor is unable to receive any such assurances from the Commission after the use of such commercially reasonable efforts of the related year, such failure by the Servicer to comply with this Section 7.04 shall be deemed an Event of Default, automatically at such time, without notice and without any cure period, and Depositor may, in addition to whatever rights the Depositor may have under Section 8 of the Purchase Agreement and at law or equity or to damages, including injunctive relief and specific performance, terminate all the rights and obligations of the Servicer under this Agreement and in and to the Mortgage Loans and the proceeds thereof without compensating the Servicer for the same, as provided in Section 11 of the Purchase Agreement. Such termination shall be considered with cause pursuant to Section 11.01 of the Purchase Agreement. This paragraph shall supersede any other provision in this Agreement or any other agreement to the contrary.” (g) Section 7.05(a)(i) of the Purchase Agreement is hereby amended and restated in its entirety as follows: “deliver to the Purchaser and any Master Servicer a report (in form and substance reasonably satisfactory to the Purchaser and such Master Servicer) regarding the Seller’s assessment of compliance with the Servicing Criteria during the immediately preceding calendar year, as required under Rules 13a-18 and 15d-18 of the Exchange Act and Item 1122 of Regulation AB. Such report shall be addressed to the Purchaser and signed by an authorized officer of the Seller, and shall address each of the Servicing Criteria specified on a certification substantially in the form of Exhibit 12 hereto delivered to the Purchaser concurrently with the execution of this Agreement;” (h) Section 7.05(a)(ii) of the Purchase Agreement is hereby amended and restated in its entirety as follows: “deliver to the Purchaser and such Master Servicer a report of a registered public accounting firm reasonably acceptable to the Purchaser and any Master Servicer that attests to, and reports on, the assessment of compliance made by the Seller and delivered pursuant to the preceding paragraph. Such attestation shall be in accordance with Rules 1-02(a)(3) and 2-02(g) of Regulation S-X under the Securities Act and the Exchange Act;” (i) Section 7.05(a)(iii) of the Purchase Agreement is hereby amended and restated in its entirety as follows: “cause each Subservicer, and each Subcontractor determined by the Seller pursuant to Subsection 7.06(b) to be “participating in the servicing function” within the meaning of Item 1122 of Regulation AB, to deliver to the Purchaser and any Master Servicer an assessment of compliance and accountants’ attestation as and when provided in paragraphs (a) and (b) of this Section; and” (j) Section 7.05(a)(iv) of the Purchase Agreement is hereby amended and restated in its entirety as follows: “deliver, and cause each Subservicer and Subcontractor described in clause (iii) above to deliver, to the Purchaser, the Master Servicer, any Depositor and any other Person that will be responsible for signing the certification (a “Sarbanes Certification”) required by Rules 13a-14(d) and 15d-14(d) under the Exchange Act (pursuant to Section 302 of the Xxxxxxxx-Xxxxx Act of 2002) on behalf of an asset-backed issuer with respect to a Securitization Transaction a certification, signed by an appropriate officer of the Servicer, in the form attached hereto as Exhibit 11. In addition to providing the Sarbanes Certification, the Servicer shall also cooperate with the Depositor and provide such additional information as the Depositor may reasonably request with respect thereto.” (k) The first sentence of Section 7.06(a) is amended to add the Master Servicer as a party that the Seller need not seek consent from for the utilization of any Subservicer. The second sentence of Section 7.06(a) is amended to require the Seller to cause any Subservicer or Subcontractor to comply with all of the following Sections of the Purchase Agreement: Section 7.02, Section 7.03(c), (e), (f) and (g), Section 7.04, Section 7.05, Section 7.06(a) and Section 7.07. (l) The first paragraph of Section 7.06(b) is hereby amended and restated in its entirety as follows: “It shall not be necessary for the Seller to seek the consent of the Purchaser or any Master Servicer to the utilization of any Subcontractor. The Seller shall promptly upon request provide to the Purchaser and any Master Servicer a written description (in form and substance satisfactory to the Purchaser and such Master Servicer) of the role and function of each Subcontractor utilized by the Seller or any Subservicer, specifying (i) the identity of each such Subcontractor, (ii) which, if any, of such Subcontractors are “participating in the servicing function” within the meaning of Item 1122 of Regulation AB, and (iii) which elements of the Servicing Criteria will be addressed in assessments of compliance provided by each Subcontractor identified pursuant to clause (ii) of this paragraph.”” (m) The last sentence of the second paragraph of Section 7.06(b) is amended to require the Seller to cause any Subservicer or Subcontractor to provide any assessment of compliance and attestation but also any other certifications required to delivered under Section 7.05. (n) Section 7.07(a) of the Purchase Agreement is hereby amended and restated in its entirety as follows: “The Seller shall indemnify the Purchaser, each affiliate of the Purchaser, and each of the following parties participating in a Securitization Transaction: each sponsor and issuing entity; each Person, including but not limited to, any Master Servicer, responsible for the preparation, execution or filing of any report required to be filed with the Commission with respect to such Securitization Transaction, or for execution of a certification pursuant to Rule 13a-14(d) or Rule 15d-14(d) under the Exchange Act with respect to such Securitization Transaction; each broker dealer acting as underwriter, placement agent or initial purchaser, each Person who controls any of such parties (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act); and the respective present and former directors, officers, employees and agents of each of the foregoing, and of the Depositor (each, an “Indemnified Party”), and shall hold each of them harmless from and against any losses, damages, penalties, fines, forfeitures, legal fees and expenses and related costs, judgments, and any other costs, fees and expenses that any of them may sustain arising out of or based upon: (o) Section 7.07(a)(ii) of the Purchase Agreement is hereby amended and restated in its entirety as follows:

• Agreement to Purchase The Seller agrees to sell, and the Purchaser agrees to purchase, on a servicing released basis, the Mortgage Loans identified on the schedule (the "Mortgage Loan Schedule") annexed hereto as Exhibit 1, as such schedule may be amended to reflect the actual Mortgage Loans accepted by the Purchaser pursuant to the terms hereof. The Cut-Off Date with respect to each Mortgage Loan is such Mortgage Loan's Due Date in the month of August 2004. The Mortgage Loans will have an aggregate principal balance as of the close of business on the Cut-Off Date, after giving effect to any payments due on or before such date, whether or not received, of $85,459,192. The sale of the Mortgage Loans shall take place on August 24, 2004 or such other date as shall be mutually acceptable to the parties hereto (the "Closing Date"). The purchase price to be paid by the Purchaser for the Mortgage Loans shall equal the amount set forth as such purchase price on Exhibit 3 hereto. The purchase price shall be paid to the Seller by wire transfer in immediately available funds on the Closing Date. On the Closing Date, the Purchaser will assign to the Trustee pursuant to the Pooling and Servicing Agreement all of its right, title and interest in and to the Mortgage Loans and its rights under this Agreement (to the extent set forth in Section 14), and the Trustee shall succeed to such right, title and interest in and to the Mortgage Loans and the Purchaser's rights under this Agreement (to the extent set forth in Section 14).

• Agreement to Sell and Contribute on the Closing Date On the terms and subject to the conditions set forth in this Agreement, Santander Consumer does hereby irrevocably sell, transfer, assign, contribute and otherwise convey to the Purchaser without recourse (subject to the obligations herein) on the Closing Date all of Santander Consumer’s right, title and interest in, to and under the Receivables, the Collections after the Cut-Off Date, the Receivable Files and the Related Security relating thereto, whether now owned or hereafter acquired, as evidenced by an assignment substantially in the form of Exhibit A delivered on the Closing Date (collectively, the “Purchased Assets”). The sale, transfer, assignment, contribution and conveyance made hereunder does not constitute and is not intended to result in an assumption by the Purchaser of any obligation of the Originator to the Obligors, the Dealers, insurers or any other Person in connection with the Receivables or the other assets and properties conveyed hereunder or any agreement, document or instrument related thereto.

• Agreement to Sell and Purchase the Shares At the Closing (as defined in Section 3), the Company will sell to the Purchaser, and the Purchaser will buy from the Company, upon the terms and conditions hereinafter set forth, the number of Shares (at the purchase price) shown below: