Purchase and Resale of the Securities. (a) The Company agrees to sell the Notes to the several Initial Purchasers as provided in this Agreement, and each Initial Purchaser, on the basis of the representations, warranties and agreements set forth herein and subject to the conditions set forth herein, agrees, severally and not jointly, to purchase from the Company, that respective principal amount of the Notes set forth opposite such Initial Purchaser’s name in Schedule 1 hereto, at a price equal to 98.827% of the principal amount thereof plus accrued interest, if any, from August 14, 2009 to the Closing Date (as defined below). The Company will not be obligated to deliver any of the Notes except upon payment for all the Notes to be purchased as provided herein. (b) The Company understands that the Initial Purchasers intend to offer the Notes for resale on the terms set forth in the Time of Sale Information, subject to the conditions set forth herein. Each Initial Purchaser, severally and not jointly, represents and warrants to the Company and agrees with the Company that: (i) it is a qualified institutional buyer (a “QIB”) within the meaning of Rule 144A under the Securities Act (“Rule 144A”) and an accredited investor within the meaning of Rule 501(a) under the Securities Act; (ii) it has not solicited offers for, or offered or sold, and will not solicit offers for, or offer or sell, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act (“Regulation D”) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act; and (iii) it has not solicited offers for, or offered or sold, and will not solicit offers for, or offer or sell, the Securities as part of their initial offering by them except: (A) within the United States to persons whom it reasonably believes to be QIBs in transactions pursuant to Rule 144A and in connection with each such sale, it has taken or will take reasonable steps to ensure that the purchaser of the Securities is aware that such sale is being made in reliance on Rule 144A; and (B) in accordance with the restrictions set forth in Annex C hereto. (c) Each Initial Purchaser acknowledges and agrees that the Company and, for purposes of the opinions to be delivered to the Initial Purchasers pursuant to Sections 6(f) and 6(g), counsel for the Company and counsel for the Initial Purchasers, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchasers, and compliance by the Initial Purchasers with their agreements, contained in paragraph (b) above (including Annex C hereto), and each Initial Purchaser hereby consents to such reliance. (d) The Company acknowledges and agrees that the Initial Purchasers may offer and sell Securities to or through any affiliate of an Initial Purchaser and that any such affiliate may offer and sell Securities purchased by it to or through any Initial Purchaser. (e) Each of the Company and the Guarantors acknowledges and agrees that the Initial Purchasers are acting solely in the capacity of arm’s length contractual counterparties to the Company and the Guarantors with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as financial advisors or fiduciaries to, or agents of, the Company, the Guarantors, or any other person. Additionally, neither of the Representatives nor any other Initial Purchaser is advising the Company, the Guarantors, or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company and the Guarantors shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby, and the Initial Purchasers shall not have any responsibility or liability to the Company or the Guarantors with respect thereto. Any review by any Initial Purchaser of the Company, the Guarantors, and the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of such Initial Purchaser and shall not be on behalf of the Company, the Guarantors, or any other person.
Appears in 1 contract
Purchase and Resale of the Securities. (a) The Company agrees to issue and sell the Notes Securities to the several Initial Purchasers as provided in this Agreement, and each Initial Purchaser, on the basis of the representations, warranties and agreements set forth herein and subject to the conditions set forth herein, agrees, severally and not jointly, to purchase from the Company, that Company the respective principal amount of the Notes Securities set forth opposite such Initial Purchaser’s name in Schedule 1 hereto, hereto at a price equal to 98.82798.25% of the principal amount thereof plus accrued interest, if any, from August 14May 10, 2009 2016 to the Closing Date (as defined below)Date. The Company will not be obligated to deliver any of the Notes Securities except upon payment for all the Notes Securities to be purchased as provided herein.
(b) The Company understands that the Initial Purchasers intend to offer the Notes Securities for resale on the terms set forth herein and in the Time of Sale Information, subject to the conditions set forth herein. Each Initial Purchaser, severally and not jointly, represents and represents, warrants to the Company and agrees with the Company that:
(i) it is a qualified institutional buyer (a “QIB”) within the meaning of Rule 144A under the Securities Act (“Rule 144A”) and an accredited investor within the meaning of Rule 501(a) of Regulation D under the Securities ActAct (“Regulation D”);
(ii) it has not solicited offers for, or offered or sold, and will not solicit offers for, or offer or sell, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act (“Regulation D”) or in any manner involving a public offering within the meaning of Section 4(24(a)(2) of the Securities Act; and
(iii) it has not solicited offers for, or offered or sold, and will not solicit offers for, or offer or sell, the Securities as part of their initial offering by them except:
(A) within the United States to persons whom it reasonably believes to be QIBs in transactions pursuant to Rule 144A and in connection with each such sale, it has taken or will take reasonable steps to ensure that the purchaser of the Securities is aware that such sale is being made in reliance on Rule 144A; andor
(B) in accordance with the restrictions set forth in Annex C hereto.
(c) Each Initial Purchaser acknowledges and agrees that the Company and, for purposes of the “no registration” opinions to be delivered to the Initial Purchasers pursuant to Sections 6(f) and 6(g), counsel for the Company and counsel for the Initial Purchasers, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchasers, and compliance by the Initial Purchasers with their agreements, contained in paragraph (b) above (including Annex C hereto), and each Initial Purchaser hereby consents to such reliance.
(d) The Company acknowledges and agrees that the Initial Purchasers may offer and sell Securities to or through any affiliate of an Initial Purchaser and that any such affiliate may offer and sell Securities purchased by it to or through any Initial Purchaser; provided that such offers and sales shall be made in accordance with the provisions of this Agreement.
(e) Each of the The Company and the Guarantors acknowledges Guarantor acknowledge and agrees agree that the each Initial Purchasers are Purchaser is acting solely in the capacity of an arm’s length contractual counterparties counterparty to the Company and the Guarantors Guarantor with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisors advisor or fiduciaries a fiduciary to, or agents an agent of, the Company, the Guarantors, Guarantor or any other person. Additionally, neither of the Representatives Representative nor any other Initial Purchaser is advising the Company, the Guarantors, Guarantor or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company and the Guarantors Guarantor shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby, and neither the Representative nor any other Initial Purchasers Purchaser shall not have any responsibility or liability to the Company or the Guarantors Guarantor with respect thereto. Any review by the Representative or any Initial Purchaser of the Company, the GuarantorsGuarantor, and the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Representative or such Initial Purchaser Purchaser, as the case may be, and shall not be on behalf of the Company, the Guarantors, Guarantor or any other person.
Appears in 1 contract
Purchase and Resale of the Securities. (a) The Company agrees to issue and sell the Notes Securities to the several Initial Purchasers as provided in this Agreement, Agreement and each Initial Purchaser, on the basis of the representations, warranties and agreements set forth herein and subject to the conditions set forth herein, agrees, severally and not jointly, to purchase from the Company, that Company the respective principal amount of the Notes Securities set forth opposite such Initial Purchaser’s name in Schedule 1 hereto, hereto at a price equal to 98.82798% of the principal amount thereof plus accrued interest, if any, from August 14December 18, 2009 2012 to the Closing Date (as defined below)Date. The Company will not be obligated to deliver any of the Notes Securities except upon payment for all the Notes Securities to be purchased as provided herein.
(b) The Company understands and the Guarantors understand that the Initial Purchasers intend to offer the Notes Securities for resale on the terms set forth in the Time of Sale Information, subject to the conditions set forth herein. Each Initial Purchaser, severally and not jointly, represents and represents, warrants to the Company and agrees with the Company that:
(i) it is a qualified institutional buyer (a “QIB”) within the meaning of Rule 144A under the Securities Act (a “Rule 144AQIB”) and an accredited investor within the meaning of Rule 501(a) under the Securities Act;
(ii) it neither it, nor to its knowledge any person acting on its behalf, has not solicited offers for, or offered or sold, and will not solicit offers for, or offer or sell, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act (“Regulation D”) or in any manner involving a public offering within the meaning of Section 4(24(a)(2) of the Securities Act; and
(iii) it neither it, nor to its knowledge any person acting on its behalf, has not solicited offers for, or offered or sold, and will not solicit offers for, or offer or sell, the Securities as part of their initial offering by them except:
(A) within the United States to persons whom it reasonably believes to be QIBs in transactions pursuant to Rule 144A under the Securities Act (“Rule 144A”) and in connection with each such sale, it has taken or will take reasonable steps to ensure that the purchaser of the Securities is aware that such sale is being made in reliance on Rule 144A; andor
(B) outside the United States in accordance with the restrictions set forth in Annex C hereto.
(c) Each Initial Purchaser acknowledges and agrees that the Company and the Guarantors and, for purposes of the “no registration” opinions to be delivered to the Initial Purchasers pursuant to Sections 6(f) and 6(g), counsel for the Company and counsel for the Initial Purchasers, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchasers, and compliance by the Initial Purchasers with their agreements, contained in paragraph (b) above (including Annex C hereto), and each Initial Purchaser hereby consents to such reliance.
(d) The Company acknowledges and agrees the Guarantors acknowledge and agree that the Initial Purchasers may offer and sell Securities to or through any affiliate of an Initial Purchaser and that any such affiliate may offer and sell Securities purchased by it to or through any Initial Purchaser, in each case subject to and in accordance with the terms and provisions of this Agreement (including Annex C hereto).
(e) Each of the The Company and the Guarantors acknowledges acknowledge and agrees agree that the Initial Purchasers are acting solely in the capacity of arm’s an arm’s-length contractual counterparties counterparty to the Company and the Guarantors with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as financial advisors or fiduciaries to, or agents of, the Company, the Guarantors, Guarantors or any other person. Additionally, neither of the Representatives Representative nor any other Initial Purchaser is advising the Company, the Guarantors, Guarantors or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company and the Guarantors shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby, and neither the Representative nor any other Initial Purchasers Purchaser shall not have any responsibility or liability to the Company or the Guarantors with respect thereto. Any review by the Representative or any Initial Purchaser of the Company, the Guarantors, and the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Representative or such Initial Purchaser Purchaser, as the case may be, and shall not be on behalf of the Company, the Guarantors, Guarantors or any other person.
Appears in 1 contract
Samples: Purchase Agreement (Avaya Inc)
Purchase and Resale of the Securities. (a) The Company agrees to issue and sell the Notes Securities to the several Initial Purchasers as provided in this Agreement, and each Initial Purchaser, on the basis of the representations, warranties and agreements set forth herein and subject to the conditions set forth herein, agrees, severally and not jointly, to purchase from the Company, that Company the respective principal amount of the Notes Securities set forth opposite such Initial Purchaser’s name in Schedule 1 hereto, hereto at a price equal to 98.82797.425% of the principal amount thereof plus accrued interest, if any, from August 14June 2, 2009 2014 to the Closing Date (as defined below)Date. The Company will not be obligated to deliver any of the Notes Securities except upon payment for all the Notes Securities to be purchased as provided herein.
(b) The Company understands that the Initial Purchasers intend to offer the Notes Securities for resale on the terms set forth in the Time of Sale Information, subject to the conditions set forth herein. Each Initial Purchaser, severally and not jointly, represents and represents, warrants to the Company and agrees with the Company that:
(i) it is a qualified institutional buyer (a “QIB”) within the meaning of Rule 144A under the Securities Act (“Rule 144A”) and an accredited investor within the meaning of Rule 501(a) of Regulation D under the Securities ActAct (“Regulation D”);
(ii) it has not solicited offers for, or offered or sold, and will not solicit offers for, or offer or sell, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act (“Regulation D”) or in any manner involving a public offering within the meaning of Section 4(24(a)(2) of the Securities Act; and
(iii) it has not solicited offers for, or offered or sold, and will not solicit offers for, or offer or sell, the Securities as part of their initial offering by them except:
(A) within the United States to persons whom it reasonably believes to be QIBs in transactions pursuant to Rule 144A and in connection with each such sale, it has taken or will take reasonable steps to ensure that the purchaser of the Securities is aware that such sale is being made in reliance on Rule 144A; andor
(B) in accordance with the restrictions set forth in Annex C hereto.
(c) Each Initial Purchaser acknowledges and agrees that the Company and, for purposes of the “no registration” opinions to be delivered to the Initial Purchasers pursuant to Sections 6(f) and 6(g6(i), counsel for the Company and counsel for the Initial Purchasers, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchasers, and compliance by the Initial Purchasers with their agreements, contained in paragraph (b) above (including Annex C hereto), and each Initial Purchaser hereby consents to such reliance.
(d) The Company acknowledges and agrees that the Initial Purchasers may offer and sell Securities to or through any affiliate of an Initial Purchaser and that any such affiliate may offer and sell Securities purchased by it to or through any Initial Purchaser; provided, however, that any such affiliate shall be subject to the same obligations as its affiliated Initial Purchaser hereunder, and that such Initial Purchaser shall be liable for any breach of these obligations by such affiliate.
(e) Each of the The Company and the Guarantors acknowledges acknowledge and agrees agree that the each Initial Purchasers are Purchaser is acting solely in the capacity of an arm’s length contractual counterparties counterparty to the Company and the Guarantors with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisors advisor or fiduciaries a fiduciary to, or agents an agent of, the Company, the Guarantors, Guarantors or any other person. Additionally, neither of the Representatives Representative nor any other Initial Purchaser is advising the Company, the Guarantors, Guarantors or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company and the Guarantors shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby, and neither the Representative nor any other Initial Purchasers Purchaser shall not have any responsibility or liability to the Company or the Guarantors with respect thereto. Any review by the Representative or any Initial Purchaser of the Company, the Guarantors, and the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Representative or such Initial Purchaser Purchaser, as the case may be, and shall not be on behalf of the Company, the Guarantors, Guarantors or any other person.
Appears in 1 contract
Purchase and Resale of the Securities. (a) The Company agrees to issue and sell the Notes Securities to the several Initial Purchasers as provided in this Agreement, Agreement and each Initial Purchaser, on the basis of the representations, warranties and agreements set forth herein and subject to the conditions set forth herein, agrees, severally and not jointly, to purchase from the Company, that Company the respective principal amount of the Notes Securities set forth opposite such Initial Purchaser’s name in Schedule 1 hereto, hereto at a price equal to 98.82798.00% of the principal amount thereof plus accrued interest, if any, from August 14February 11, 2009 2011 to the Closing Date (as defined below)Date. The Company will not be obligated to deliver any of the Notes Securities except upon payment for all the Notes Securities to be purchased as provided herein.
(b) The Company understands and the Guarantors understand that the Initial Purchasers intend to offer the Notes Securities for resale on the terms set forth in the Time of Sale Information, subject to the conditions set forth herein. Each Initial Purchaser, severally and not jointly, represents and represents, warrants to the Company and agrees with the Company that:
(i) it is a qualified institutional buyer (a “QIB”) within the meaning of Rule 144A under the Securities Act (a “Rule 144AQIB”) and an accredited investor within the meaning of Rule 501(a) under the Securities Act;
(ii) it neither it, nor to its knowledge any person acting on its behalf, has not solicited offers for, or offered or sold, and will not solicit offers for, or offer or sell, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act (“Regulation D”) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act; and
(iii) it neither it, nor to its knowledge any person acting on its behalf, has not solicited offers for, or offered or sold, and will not solicit offers for, or offer or sell, the Securities as part of their initial offering by them except:
(A) within the United States to persons whom it reasonably believes to be QIBs in transactions pursuant to Rule 144A under the Securities Act (“Rule 144A”) and in connection with each such sale, it has taken or will take reasonable steps to ensure that the purchaser of the Securities is aware that such sale is being made in reliance on Rule 144A; andor
(B) outside the United States in accordance with the restrictions set forth in Annex C hereto.
(c) Each Initial Purchaser acknowledges and agrees that the Company and the Guarantors and, for purposes of the “no registration” opinions to be delivered to the Initial Purchasers pursuant to Sections 6(f) and 6(g), counsel for the Company and counsel for the Initial Purchasers, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchasers, and compliance by the Initial Purchasers with their agreements, contained in paragraph (b) above (including Annex C hereto), and each Initial Purchaser hereby consents to such reliance.
(d) The Company acknowledges and agrees the Guarantors acknowledge and agree that the Initial Purchasers may offer and sell Securities to or through any affiliate of an Initial Purchaser and that any such affiliate may offer and sell Securities purchased by it to or through any Initial Purchaser, in each case subject to and in accordance with the terms and provisions of this Agreement (including Annex C hereto).
(e) Each of the The Company and the Guarantors acknowledges acknowledge and agrees agree that the Initial Purchasers are acting solely in the capacity of arm’s an arm’s-length contractual counterparties counterparty to the Company and the Guarantors with respect to the offering of Securities (contemplated hereby (including in connection with determining the terms of the offering) and not as financial advisors or fiduciaries to, or agents of, the Company, the Guarantors, Guarantors or any other person. Additionally, neither of the Representatives Representative nor any other Initial Purchaser is advising the Company, the Guarantors, Guarantors or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company and the Guarantors shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby, and neither the Representative nor any other Initial Purchasers Purchaser shall not have any responsibility or liability to the Company or the Guarantors with respect thereto. Any review by the Representative or any Initial Purchaser of the Company, the Guarantors, and the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Representative or such Initial Purchaser Purchaser, as the case may be, and shall not be on behalf of the Company, the Guarantors, Guarantors or any other person.
Appears in 1 contract
Samples: Purchase Agreement (Avaya Inc)
Purchase and Resale of the Securities. (a) The On the basis of the representations, warranties and agreements set forth herein, the Company agrees to issue and sell the Notes Securities to the several Initial Purchasers as provided in this Agreement, and each Initial Purchaser, on the basis of the representations, warranties and agreements set forth herein and subject to the conditions set forth herein, agrees, severally and not jointly, to purchase from the Company, that Company the respective principal amount of the Notes Securities set forth opposite such Initial Purchaser’s name in Schedule 1 hereto, hereto at a price equal to 98.82798.5% of the principal amount thereof plus accrued interest, if any, from August 14May 6, 2009 2016 to the Closing Date (as defined below). The Company will not be obligated to deliver any of the Notes Securities except upon payment for all the Notes Securities to be purchased as provided herein.
(b) The Company understands that the Initial Purchasers intend to offer the Notes Securities for resale on the terms set forth in the Time of Sale Information, subject to the conditions set forth herein. Each Initial Purchaser, severally and not jointly, represents and represents, warrants to the Company and agrees with the Company that:
(i) it is a qualified institutional buyer (a “QIB”) within the meaning of Rule 144A under the Securities Act (a “Rule 144AQIB”) and an accredited investor within the meaning of Rule 501(a) of Regulation D under the Securities ActAct (“Regulation D”);
(ii) it has not solicited offers for, or offered or sold, and will not solicit offers for, or offer or sell, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act (“Regulation D”) or in any manner involving a public offering within the meaning of Section 4(24(a)(2) of the Securities Act; and
(iii) it has not solicited offers for, or offered or sold, and will not solicit offers for, or offer or sell, the Securities as part of their initial offering by them except:
(A) within the United States to persons whom it reasonably believes to be QIBs in transactions pursuant to Rule 144A under the Securities Act (“Rule 144A”) and in connection with each such sale, it has taken or will take reasonable steps to ensure that the purchaser of the Securities is aware that such sale is being made in reliance on Rule 144A; andor
(B) in accordance with the restrictions set forth in Annex C hereto.
(c) Each Initial Purchaser acknowledges and agrees that the Company and, for purposes of the “no registration” opinions to be delivered to the Initial Purchasers pursuant to Sections 6(f) and 6(g6(i), counsel for the Company and counsel for the Initial Purchasers, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchasers, and compliance by the Initial Purchasers with their agreements, contained in paragraph (b) above (including Annex C hereto), and each Initial Purchaser hereby consents to such reliance.
(d) The Company acknowledges and agrees that the Initial Purchasers may offer and sell Securities to or through any affiliate of an Initial Purchaser and that any such affiliate may offer and sell Securities purchased by it to or through any Initial Purchaser; provided that such offers and sales shall be made in accordance with the provisions of this Agreement.
(e) Each of the The Company and the Guarantors acknowledges acknowledge and agrees agree that the each Initial Purchasers are Purchaser is acting solely in the capacity of an arm’s length contractual counterparties counterparty to the Company and the Guarantors with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisors advisor or fiduciaries a fiduciary to, or agents an agent of, the Company, the Guarantors, Guarantors or any other person. Additionally, neither of the Representatives Representative nor any other Initial Purchaser is advising the Company, the Guarantors, Guarantors or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company and the Guarantors shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby, and neither the Representative nor any other Initial Purchasers Purchaser shall not have any responsibility or liability to the Company or the Guarantors with respect thereto. Any review by the Representative or any Initial Purchaser of the Company, the Guarantors, and the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Representative or such Initial Purchaser Purchaser, as the case may be, and shall not be on behalf of the Company, the Guarantors, Guarantors or any other person.
Appears in 1 contract
Purchase and Resale of the Securities. (a) The Company agrees to issue and sell the Notes Securities to the several Initial Purchasers as provided in this Agreement, and each Initial Purchaser, on the basis of the representations, warranties and agreements set forth herein and subject to the conditions set forth herein, agrees, severally and not jointly, to purchase from the Company, that respective Company the principal amount of the Notes Securities set forth opposite such Initial Purchaser’s 's name in Schedule 1 hereto, hereto at a price equal to 98.82798.938% of the principal amount thereof of the 2012 Notes and 98.304% of the principal amount of the 2032 Notes, as the case may be, plus accrued interestinterest in each case, if any, from August 14June 28, 2009 2002 to the Closing Date (as defined below)Date. The Company will not be obligated to deliver any of the Notes Securities except upon payment for all the Notes Securities to be purchased as provided herein.
(b) The Company understands that the Initial Purchasers intend to offer the Notes Securities for resale on the terms set forth in the Time of Sale Information, subject to the conditions set forth hereinOffering Memorandum. Each Initial Purchaser, severally and not jointly, represents and represents, warrants to the Company and agrees with the Company that:
(i) it is a qualified institutional buyer (a “QIB”) within the meaning of Rule 144A under the Securities Act (“Rule 144A”a "QIB") and an accredited investor within the meaning of Rule 501(a) under the Securities Act;
(ii) it has not solicited offers for, or offered or sold, and will not solicit offers for, or offer or sell, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act (“"Regulation D”") or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act; and
(iii) it has not solicited offers for, or offered or sold, and will not solicit offers for, or offer or sell, the Securities as part of their initial offering by them except:
(A) within the United States to persons whom it reasonably believes to be QIBs in transactions pursuant to Rule 144A under the Securities Act ("Rule 144A") and in connection with each such sale, it has taken or will take reasonable steps to ensure that the purchaser of the Securities is aware that such sale is being made in reliance on Rule 144A; andor
(B) in accordance with the restrictions set forth in Annex C A hereto.
(c) Each Initial Purchaser acknowledges and agrees that the Company and, for purposes of the opinions to be delivered to the Initial Purchasers pursuant to Sections 6(f5(f) and 6(g5(g), counsel for the Company and counsel for the Initial Purchasers, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchasers, and compliance by the Initial Purchasers with their agreements, contained in paragraph (b) above (including Annex C A hereto), and each Initial Purchaser hereby consents to such reliance.
(d) The Company acknowledges and agrees that the Initial Purchasers may offer and sell Securities to or through any affiliate of an Initial Purchaser and that any such affiliate may offer and sell Securities purchased by it to or through any Initial Purchaser.
(e) Each of the Company and the Guarantors acknowledges and agrees that the Initial Purchasers are acting solely in the capacity of arm’s length contractual counterparties to the Company and the Guarantors with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as financial advisors or fiduciaries to, or agents of, the Company, the Guarantors, or any other person. Additionally, neither of the Representatives nor any other Initial Purchaser is advising the Company, the Guarantors, or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company and the Guarantors shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby, and the Initial Purchasers shall not have any responsibility or liability to the Company or the Guarantors with respect thereto. Any review by any Initial Purchaser of the Company, the Guarantors, and the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of such Initial Purchaser and shall not be on behalf of the Company, the Guarantors, or any other person.
Appears in 1 contract
Samples: Purchase Agreement (Science Applications International Corp)
Purchase and Resale of the Securities. (a) The Company agrees to sell the Notes to the several Initial Purchasers as provided in this Agreement, and each Initial Purchaser, on On the basis of the representations, warranties and agreements set forth herein contained herein, and subject to the terms and conditions set forth herein, agreesthe Company agrees to issue and sell to the Initial Purchaser, severally and not jointly, the Initial Purchaser agrees to purchase from the Company, that respective $200,000,000 aggregate principal amount of the Notes set forth opposite such Initial Purchaser’s name in Schedule 1 hereto, Securities at a purchase price equal to 98.82797.411% of the principal amount thereof plus accrued interest, if any, from August 14, 2009 to the Closing Date (as defined below)thereof. The Company will shall not be obligated to deliver any of the Notes Securities except upon payment for all of the Notes Securities to be purchased as provided herein.
(b) The Initial Purchaser has advised the Company understands that the Initial Purchasers intend it proposes to offer the Notes Securities for resale on upon the terms set forth in the Time of Sale Information, and subject to the conditions set forth hereinherein and in the Offering Memorandum. Each The Initial Purchaser, severally and not jointly, Purchaser represents and warrants to to, and agrees with, the Company and agrees with the Company that:
that (i) it is a qualified institutional buyer (a “QIB”) within the meaning of Rule 144A under purchasing the Securities Act (“Rule 144A”) and an accredited investor within the meaning of Rule 501(a) pursuant to a private sale exempt from registration under the Securities Act;
, (ii) it has not solicited offers for, or offered or sold, and will not solicit offers for, or offer or to sell, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act (“"Regulation D”") or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act; and
Act and (iii) it has not solicited and will solicit offers forfor the Securities only from, or and has offered or sold, sold and will not solicit offers foroffer, sell or offer or selldeliver the Securities, at any time prior to the Securities as part completion of their initial offering by them except:
its distribution of the Securities, only (A) within the United States to persons whom it reasonably believes to be QIBs in transactions pursuant to Rule 144A and in connection with each such sale, it has taken or will take reasonable steps to ensure that the purchaser of the Securities is aware that such sale is being made in reliance on Rule 144A; and
(B) in accordance with the restrictions set forth in Annex C hereto.
(c) Each Initial Purchaser acknowledges and agrees that the Company and, for purposes of the opinions to be delivered to the Initial Purchasers pursuant to Sections 6(f) and 6(g), counsel for the Company and counsel for the Initial Purchasers, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchasers, and compliance by the Initial Purchasers with their agreements, contained in paragraph (b) above (including Annex C hereto), and each Initial Purchaser hereby consents to such reliance.
(d) The Company acknowledges and agrees that the Initial Purchasers may offer and sell Securities to or through any affiliate of an Initial Purchaser and that any such affiliate may offer and sell Securities purchased by it to or through any Initial Purchaser.
(e) Each of the Company and the Guarantors acknowledges and agrees that the Initial Purchasers are acting solely in the capacity of arm’s length contractual counterparties to the Company and the Guarantors with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as financial advisors or fiduciaries to, or agents of, the Company, the Guarantors, or any other person. Additionally, neither of the Representatives nor any other Initial Purchaser is advising the Company, the Guarantors, or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company and the Guarantors shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby, and the Initial Purchasers shall not have any responsibility or liability to the Company or the Guarantors with respect thereto. Any review by any Initial Purchaser of the Company, the Guarantors, and the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of such Initial Purchaser and shall not be on behalf of the Company, the Guarantors, or any other person.qualified institutional
Appears in 1 contract
Purchase and Resale of the Securities. (a) The Company agrees to issue and sell the Notes Securities to the several Initial Purchasers as provided in this Agreement, and each Initial Purchaser, on the basis of the representations, warranties and agreements set forth herein and subject to the conditions set forth herein, agrees, severally and not jointly, to purchase from the Company, that Company the respective principal amount of the Notes Securities set forth opposite such Initial Purchaser’s name in Schedule 1 hereto, hereto at a price equal to 98.82798.276% of the principal amount thereof plus accrued interest, if any, from August 14October 3, 2009 2005 to the Closing Date (as defined below)Date. The Company will not be obligated to deliver any of the Notes Securities except upon payment for all the Notes Securities to be purchased as provided herein.
(b) The Company understands that the Initial Purchasers intend to offer the Notes Securities for resale on the terms set forth in the Time of Sale Information, subject to the conditions set forth hereinOffering Memorandum. Each Initial Purchaser, severally and not jointly, represents and represents, warrants to the Company and agrees with the Company that:
(i) it is a qualified institutional buyer (a “QIB”) within the meaning of Rule 144A under the Securities Act (a “Rule 144AQIB”) and an accredited investor within the meaning of Rule 501(a) under the Securities Act;
(ii) neither it nor any person acting on its behalf has not solicited offers for, or offered or sold, and or will not solicit offers for, or offer or sell, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act (“Regulation D”) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act; and
(iii) neither it nor any person acting on its behalf has not solicited offers for, or offered or sold, and or will not solicit offers for, or offer or sell, the Securities as part of their initial offering by them except:
(A) within the United States to persons whom it reasonably believes to be QIBs in transactions pursuant to Rule 144A under the Securities Act (“Rule 144A”) and in connection with each such sale, it has taken or will take reasonable steps to ensure that the purchaser of the Securities is aware that such sale is being made in reliance on Rule 144A; andor
(B) in accordance with the restrictions set forth in Annex C A hereto.
(c) Each Initial Purchaser acknowledges and agrees that the Company and, for purposes of the opinions to be delivered to the Initial Purchasers pursuant to Sections 6(f5(f) and 6(g5(h), counsel for the Company and counsel for the Initial Purchasers, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchasers, and compliance by the Initial Purchasers with their agreements, contained in paragraph (b) above (including Annex C A hereto), and each Initial Purchaser hereby consents to such reliance.
(d) The Company acknowledges and agrees that the Initial Purchasers may offer and sell Securities to or through any affiliate of an Initial Purchaser and that any such affiliate may offer and sell Securities purchased by it to or through any Initial Purchaser.
(e) Each of the The Company and the Guarantors acknowledges acknowledge and agrees agree that the each Initial Purchasers are Purchaser is acting solely in the capacity of an arm’s length contractual counterparties counterparty to the Company and the Guarantors with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisors advisor or fiduciaries a fiduciary to, or agents an agent of, the Company, the Guarantors, Guarantors or any other person. Additionally, neither of the Representatives nor any other no Initial Purchaser is advising the Company, the Guarantors, Guarantors or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company and the Guarantors shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby, and the Initial Purchasers shall not have any no responsibility or liability to the Company or the Guarantors with respect thereto. Any review by any the Initial Purchaser Purchasers of the Company, the Guarantors, and the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of such the Initial Purchaser Purchasers and shall not be on behalf of the Company, Company or the Guarantors, or any other person.
Appears in 1 contract
Samples: Purchase Agreement (Community Alternatives Pharmacy, Inc.)
Purchase and Resale of the Securities. (a) The Company agrees to issue and sell the Notes Securities to the several Initial Purchasers as provided in this Agreement, and each Initial Purchaser, on the basis of the representations, warranties and agreements set forth herein and subject to the conditions set forth herein, agrees, severally and not jointly, to purchase from the Company, that Company the respective principal amount of the Notes Securities set forth opposite such Initial Purchaser’s 's name in Schedule 1 hereto, hereto at a price equal to 98.82797.75% of the principal amount thereof plus accrued interest, if any, from August 146, 2009 2003 to the Closing Date (as defined below)Date. The Company will not be obligated to deliver any of the Notes Securities except upon payment for all the Notes Securities to be purchased as provided herein.
(b) The Company understands that the Initial Purchasers intend to offer the Notes Securities for resale on the terms set forth in the Time of Sale Information, subject to the conditions set forth hereinOffering Memorandum. Each Initial Purchaser, severally and not jointly, represents and represents, warrants to the Company and agrees with the Company that:
(i) it is a qualified institutional buyer (a “QIB”) within the meaning of Rule 144A under the Securities Act (“Rule 144A”a "QIB") and an accredited investor within the meaning of Rule 501(a) under the Securities Act;
(ii) it neither it, nor any affiliate referenced in Section 1(d) below, has not solicited offers for, or offered or sold, and will not solicit offers for, or offer or sell, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act (“"Regulation D”") or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act; and
(iii) it neither it, nor any affiliate referenced in Section 1(d) below has not solicited offers for, or offered or sold, and will not solicit offers for, or offer or sell, the Securities as part of their initial offering by them except:
(A) within the United States to persons whom it reasonably believes to be QIBs in transactions pursuant to Rule 144A under the Securities Act ("Rule 144A") or if any such person is buying for one or more institutional accounts for which such person is acting as a fiduciary or agent, only when such person reasonably believes that each account is a QIB, and in connection with each such sale, it has taken or will take reasonable steps to ensure that the purchaser of the Securities is aware that such sale is being made in reliance on Rule 144A; andor
(B) in accordance with the restrictions set forth in Annex C A hereto.
(c) Each Initial Purchaser acknowledges and agrees that the Company and, for purposes of the opinions to be delivered to the Initial Purchasers pursuant to Sections 6(f5(f) and 6(g5(g), counsel for the Company and counsel for the Initial Purchasers, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchasers, and compliance by the Initial Purchasers with their agreements, contained in paragraph (b) above (including Annex C A hereto), and each Initial Purchaser hereby consents to such reliance.
(d) The Company acknowledges and agrees that the Initial Purchasers may offer and sell Securities to or through any affiliate of an Initial Purchaser and that any such affiliate may offer and sell Securities purchased by it to or through any Initial Purchaser.
(e) Each of the Company and the Guarantors acknowledges and agrees that the Initial Purchasers are acting solely in the capacity of arm’s length contractual counterparties to the Company and the Guarantors with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as financial advisors or fiduciaries to, or agents of, the Company, the Guarantors, or any other person. Additionally, neither of the Representatives nor any other Initial Purchaser is advising the Company, the Guarantors, or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company and the Guarantors shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby, and the Initial Purchasers shall not have any responsibility or liability to the Company or the Guarantors with respect thereto. Any review by any Initial Purchaser of the Company, the Guarantors, and the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of such Initial Purchaser and shall not be on behalf of the Company, the Guarantors, or any other person.
Appears in 1 contract
Samples: Purchase Agreement (Westinghouse Air Brake Technologies Corp)
Purchase and Resale of the Securities. (a) The Company agrees to issue and sell the Notes Securities to the several Initial Purchasers as provided in this Agreement, and each Initial Purchaser, on the basis of the representations, warranties and agreements set forth herein and subject to the conditions set forth herein, agrees, severally and not jointly, to purchase from the Company, that Company the respective principal amount of the Notes Securities set forth opposite such Initial Purchaser’s 's name in Schedule 1 hereto, hereto at a price equal to 98.82795.685% of the principal amount thereof plus accrued interest, if any, from August 14June 24, 2009 2004 to the Closing Date (as defined below)Date. The Company will not be obligated to deliver any of the Notes Securities except upon payment for all the Notes Securities to be purchased as provided herein.
(b) The Company understands that the Initial Purchasers intend to offer the Notes Securities for resale on the terms set forth in the Time of Sale Information, subject to the conditions set forth hereinOffering Memorandum. Each Initial Purchaser, severally and not jointly, represents and represents, warrants to the Company and agrees with the Company that:
(i) it is a qualified institutional buyer (a “QIB”) within the meaning of Rule 144A under the Securities Act (“Rule 144A”a "QIB") and an accredited investor within the meaning of Rule 501(a) under the Securities Act;
(ii) it neither it, nor to its knowledge any person acting on its behalf, has not solicited offers for, or offered or sold, and or will not solicit offers for, or offer or sell, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act (“"Regulation D”") or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act; and
(iii) it neither it, nor to its knowledge any person acting on its behalf, has not solicited offers for, or offered or sold, and or will not solicit offers for, or offer or sell, the Securities as part of their initial offering by them except:
(A) a. within the United States to persons whom it reasonably believes to be QIBs in transactions pursuant to Rule 144A under the Securities Act ("Rule 144A") and in connection with each such sale, it has taken or will take reasonable steps to ensure that the purchaser of the Securities is aware that such sale is being made in reliance on Rule 144A; andor
(B) b. outside the United States in accordance with the restrictions set forth in Annex C A hereto.
(c) Each Initial Purchaser acknowledges and agrees that the Company and, for purposes of the opinions to be delivered to the Initial Purchasers pursuant to Sections 6(f5(f) and 6(g5(g), counsel for the Company and counsel for the Initial Purchasers, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchasers, and compliance by the Initial Purchasers with their agreements, contained in paragraph (b) above (including Annex C A hereto), and each Initial Purchaser hereby consents to such reliance.
(d) The Company acknowledges and agrees that the Initial Purchasers may offer and sell Securities to or through any affiliate of an Initial Purchaser and that any such affiliate may offer and sell Securities purchased by it to or through any Initial Purchaser.
(e) Each Purchaser in each case subject to and in accordance with the terms and provisions of the Company and the Guarantors acknowledges and agrees that the Initial Purchasers are acting solely in the capacity of arm’s length contractual counterparties to the Company and the Guarantors with respect to the offering of Securities contemplated hereby this Agreement (including in connection with determining the terms of the offering) and not as financial advisors or fiduciaries to, or agents of, the Company, the Guarantors, or any other person. Additionally, neither of the Representatives nor any other Initial Purchaser is advising the Company, the Guarantors, or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company and the Guarantors shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby, and the Initial Purchasers shall not have any responsibility or liability to the Company or the Guarantors with respect thereto. Any review by any Initial Purchaser of the Company, the Guarantors, and the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of such Initial Purchaser and shall not be on behalf of the Company, the Guarantors, or any other personAnnex A hereto).
Appears in 1 contract
Samples: Purchase Agreement (Cornell Corrections of Rhode Island, Inc.)
Purchase and Resale of the Securities. (a) The Company agrees to issue and sell the Notes Securities to the several Initial Purchasers as provided in this Agreement, and each Initial Purchaser, agrees, severally and not jointly, to purchase from the Company, in each case, on the basis of the representations, warranties and agreements set forth herein and subject to the conditions set forth herein, agrees, severally and not jointly, to purchase from the Company, that respective principal amount of the Notes Securities set forth opposite such Initial Purchaser’s name in Schedule 1 hereto, hereto at a price equal to 98.827102.5% of the principal amount thereof thereof, plus accrued interest, if any, from August 14November 15, 2009 2012 to the Closing Date (as defined below)Date. The Company will not be obligated to deliver any of the Notes Securities except upon payment for all the Notes Securities to be purchased as provided herein.
(b) The Company understands that the Initial Purchasers intend to offer the Notes Securities for resale on the terms set forth in the Time of Sale Information, subject to Information and the conditions set forth hereinFinal Offering Circular. Each Initial Purchaser, severally and not jointly, represents and represents, warrants to the Company and agrees with the Company that:
(i) it is a qualified institutional buyer (a “QIB”) within the meaning of Rule 144A under the Securities Act (a “Rule 144AQIB”) and an accredited investor within the meaning of Rule 501(a) under the Securities Act;
(ii) neither it nor any Person acting on its behalf has not solicited offers for, or offered or sold, and or will not solicit offers for, or offer or sell, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act (“Regulation D”) or in any manner involving a public offering within the meaning of Section 4(24(a)(2) of the Securities Act; and
(iii) it has not solicited offers for, or offered or sold, and will not solicit offers for, or offer or sell, the Securities as part of their initial offering by them except:
(A) within the United States to persons whom it reasonably believes to be QIBs in transactions pursuant to Rule 144A under the Securities Act (“Rule 144A”) and in connection with each such sale, it has taken or will take reasonable steps to ensure that the purchaser of the Securities is aware that such sale is being made in reliance on Rule 144A; andor
(B) in accordance with the restrictions set forth in Annex C hereto.
(cb) Each Initial Purchaser acknowledges and agrees that the Company and, for purposes of the “no registration” opinions to be delivered to the Initial Purchasers pursuant to Sections 6(f6(g) and 6(g6(h), McAfee & Xxxx A Professional Corporation, as counsel for the Company Company, and Xxxxxx Xxxxxx & Xxxxxxx LLP as counsel for the Initial Purchasers, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchasers, and compliance by the Initial Purchasers with their agreements, contained in paragraph (b) above (including Annex C hereto), and each Initial Purchaser hereby consents to such reliance.
(dc) The Company acknowledges and agrees that the Initial Purchasers may offer and sell Securities to or through any affiliate of an Initial Purchaser and that any such affiliate may offer and sell Securities purchased by it to or through any Initial Purchaser.
(ed) Each of the The Company and the Guarantors acknowledges and agrees that the Initial Purchasers are acting solely in the capacity of an arm’s length contractual counterparties counterparty to the Company and the Guarantors with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisors advisor or fiduciaries a fiduciary to, or agents an agent of, the Company, the Guarantors, Company or any other person. Additionally, neither of the Representatives nor any other no Initial Purchaser is advising the Company, the Guarantors, Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company and the Guarantors shall consult with their its own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby, and the Initial Purchasers shall not have any no responsibility or liability to the Company or the Guarantors with respect thereto. Any review by any the Initial Purchaser Purchasers of the Company, the Guarantors, and the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of such the Initial Purchaser Purchasers and shall not be on behalf of the Company, the Guarantors, or any other person.
Appears in 1 contract
Purchase and Resale of the Securities. (a) The Company agrees to sell the Notes to the several Initial Purchasers as provided in this Agreement, and each Initial Purchaser, on On the basis of the representations, warranties and agreements set forth herein contained herein, and subject to the terms and conditions set forth herein, agreesthe Issuers agree, jointly and severally, to issue and sell to each of the Initial Purchasers, severally and not jointly, and each of the Initial Purchasers, severally and not jointly, agrees to purchase from the CompanyIssuers, that respective the principal amount of the Notes Securities set forth opposite the name of such Initial Purchaser’s name in Purchaser on Schedule 1 hereto, hereto at a purchase price equal to 98.82769.893% of the principal amount thereof plus accrued interest, if any, from August 14, 2009 to the Closing Date (as defined below)thereof. The Company will Issuers shall not be obligated to deliver any of the Notes Securities except upon payment for all of the Notes Securities to be purchased as provided herein.
(b) The Company understands that the Initial Purchasers intend have advised the Issuers that they propose to offer the Notes Securities for resale on upon the terms set forth in the Time of Sale Information, and subject to the conditions set forth hereinherein and in the Offering Memorandum. Each Initial Purchaser, severally and not jointly, represents and represents, warrants to the Company and agrees with the Company that:
that (i) it is a qualified institutional buyer (a “QIB”) within the meaning of Rule 144A under the Securities Act (“Rule 144A”) and an accredited investor within the meaning of Rule 501(a) under the Securities Act;
(ii) it has not solicited offers for, or offered or sold, and will not solicit offers for, or offer or sell, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act (“"Regulation D”") or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act; and
Act and (iiiii) it has not solicited and will solicit offers forfor the Securities only from, or and has offered or sold, sold and will not solicit offers foroffer, sell or offer or selldeliver the Securities, the Securities as part of their initial offering by them except:
offering, only (A) within the United States to persons whom it reasonably believes to be QIBs qualified institutional buyers ("Qualified Institutional Buyers"), as defined in transactions pursuant to Rule 144A and in connection with under the Securities Act ("Rule 144A"), or if any such person is buying for one or more institutional accounts for which such person is acting as fiduciary or agent, only when such person has represented to it that each such sale, it account is a Qualified Institutional Buyer to whom notice has taken or will take reasonable steps to ensure that the purchaser of the Securities is aware been given that such sale or delivery is being made in reliance on Rule 144A; and
144A and in each case, in transactions in accordance with Rule 144A and (B) outside the United States to persons other than U.S. persons in accordance with the restrictions set forth in Annex C hereto.reliance on Regulation S.
(c) In connection with the offer and sale of Securities in reliance on Regulation S, each Initial Purchaser, severally and not jointly, represents, warrants and agrees that:
(i) The Securities have not been registered under the Securities Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except pursuant to an exemption from, or in transactions not subject to, the registration requirements of the Securities Act.
(ii) Such Initial Purchaser has offered and sold the Securities, and will offer and sell the Securities, (A) as part of their distribution at any time and (B) otherwise until 40 days after the later of the commencement of the offering of the Securities and the Closing Date, only in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act.
(iii) None of such Initial Purchaser or any of its affiliates or any other person acting on its or their behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S.
(iv) At or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase Securities from it during the restricted period a confirmation or notice to substantially the following effect: "The Securities covered hereby have not been registered under the U.S. Securities Act of 1933, as amended (the "Securities Act"), and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."
(v) It has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) Each Initial Purchaser, severally and not jointly, represents, warrants and agrees that (i) it has not offered or sold and prior to the date six months after the Closing Date will not offer or sell any Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995; (ii) it has complied and will comply with all applicable provisions of the Financial Services Xxx 0000 and the Public Offers of Securities Regulations 1995 with respect to anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is of a kind described in Article 11(3) of the Financial Services Xxx 0000 (Investment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) Each Initial Purchaser, severally and not jointly, agrees that, prior to or simultaneously with the confirmation of sale by such Initial Purchaser to any purchaser of any of the Securities purchased by such Initial Purchaser from the Issuers pursuant hereto, such Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Issuers shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, each Initial Purchaser acknowledges and agrees that the Company Issuers and, for purposes of the opinions to be delivered to the Initial Purchasers pursuant to Sections 6(f5(e) and 6(g(f), counsel for the Company Issuers and counsel for the Initial Purchasers, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchasers, Purchasers and their compliance by the Initial Purchasers with their agreements, agreements contained in paragraph (b) above (including Annex C hereto)this Section 2, and each Initial Purchaser hereby consents to such reliance.
(df) The Company acknowledges Issuers acknowledge and agrees agree that the Initial Purchasers may offer and sell Securities to or through any affiliate of an Initial Purchaser and that any such affiliate may offer and sell Securities purchased by it to an Initial Purchaser in each case, pursuant to an exemption from, or through any Initial Purchaser.
(e) Each in a transaction not subject to, the registration requirements of the Company and the Guarantors acknowledges and agrees that the Initial Purchasers are acting solely in the capacity of arm’s length contractual counterparties to the Company and the Guarantors with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as financial advisors or fiduciaries to, or agents of, the Company, the Guarantors, or any other person. Additionally, neither of the Representatives nor any other Initial Purchaser is advising the Company, the Guarantors, or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company and the Guarantors shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby, and the Initial Purchasers shall not have any responsibility or liability to the Company or the Guarantors with respect thereto. Any review by any Initial Purchaser of the Company, the Guarantors, and the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of such Initial Purchaser and shall not be on behalf of the Company, the Guarantors, or any other personAct.
Appears in 1 contract
Purchase and Resale of the Securities. (a) The Company agrees to sell the Notes to the several Initial Purchasers as provided in this Agreement, and each Initial Purchaser, on On the basis of the representations, warranties and agreements set forth herein contained herein, and subject to the terms and conditions set forth herein, agreesthe Company agrees to issue and sell to the Initial Purchaser, severally and not jointly, the Initial Purchaser agrees to purchase from the Company, that respective principal amount 261,000 Units at an aggregate purchase price of the Notes set forth opposite such Initial Purchaser’s name in Schedule 1 hereto, at a price equal to 98.827% of the principal amount thereof plus accrued interest, if any, from August 14, 2009 to the Closing Date (as defined below)11 11 $252,875,000. The Company will shall not be obligated to deliver any of the Notes Units except upon payment for all of the Notes Units to be purchased as provided herein.
(b) The Initial Purchaser has advised the Company understands that the Initial Purchasers intend it proposes to offer the Notes Securities for resale on upon the terms set forth in the Time of Sale Information, and subject to the conditions set forth hereinherein and in the Offering Memorandum. Each The Initial PurchaserPurchaser represents, severally and not jointly, represents and warrants to the Company and agrees with the Company that:
that (i) it is a qualified institutional buyer (a “QIB”) within the meaning of Rule 144A under purchasing the Securities Act (“Rule 144A”) and an accredited investor within the meaning of Rule 501(a) pursuant to a private sale exempt from registration under the Securities Act;
, (ii) it has not solicited offers for, or offered or sold, and will not solicit offers for, or offer or sell, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act (“"Regulation D”") or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act; and
Act and (iii) except in the case of the sale to Linsang of 11,000 Units (which will be sold pursuant to another exemption from registration under the Securities Act), it has not solicited and will solicit offers forfor the Securities only from, or and has offered or sold, sold and will not solicit offers foroffer, sell or offer or selldeliver the Securities, the Securities as part of their its initial offering by them except:
(A) within the United States offering, only to persons whom it reasonably believes to be QIBs qualified institutional buyers ("Qualified Institutional Buyers"), as defined in transactions pursuant to Rule 144A and in connection with under the Securities Act ("Rule 144A"), or if any such person is buying for one or more institutional accounts for which such person is acting as fiduciary or agent, only when such person has represented to it that each such sale, it account is a Qualified Institutional Buyer to whom notice has taken or will take reasonable steps to ensure that the purchaser of the Securities is aware been given that such sale or delivery is being made in reliance on Rule 144A; and
(B) 144A and in each case, in transactions in accordance with the restrictions set forth in Annex C hereto.Rule 144A.
(c) Each The Initial Purchaser agrees that, prior to or simultaneously with the confirmation of sale by the Initial Purchaser to any purchaser of any of the Securities purchased by the Initial Purchaser from the Company pursuant hereto, the Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to the Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the Initial Purchaser acknowledges and agrees that the Company and, for purposes of the opinions to be delivered to the Initial Purchasers Purchaser pursuant to Sections 6(f5(d) and 6(g(e), counsel for the Company and counsel for the Initial PurchasersPurchaser, respectively, may rely upon the accuracy of the representations and warranties of the Initial PurchasersPurchaser and its compliance with its agreements contained in this Section 2, and compliance by the Initial Purchasers with their agreements, contained in paragraph (b) above (including Annex C hereto), and each Initial Purchaser hereby consents to such reliance.
(d) The Company acknowledges and agrees that the Initial Purchasers Purchaser may offer and sell Securities to or through any affiliate of an the Initial Purchaser and that any such affiliate may offer and sell Securities purchased by it to or through any the Initial Purchaser.
(e) Each of the Company and the Guarantors acknowledges and agrees that the Initial Purchasers are acting solely in the capacity of arm’s length contractual counterparties to the Company and the Guarantors with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as financial advisors or fiduciaries to, or agents of, the Company, the Guarantors, or any other person. Additionally, neither of the Representatives nor any other Initial Purchaser is advising the Company, the Guarantors, or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company and the Guarantors shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby, and the Initial Purchasers shall not have any responsibility or liability to the Company or the Guarantors with respect thereto. Any review by any Initial Purchaser of the Company, the Guarantors, and the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of such Initial Purchaser and shall not be on behalf of the Company, the Guarantors, or any other person.
Appears in 1 contract
Purchase and Resale of the Securities. (a) The Company agrees to sell the Notes to the several Initial Purchasers as provided in this Agreement, and each Initial Purchaser, on On the basis of the ------------------------------------- representations, warranties and agreements set forth herein contained herein, and subject to the terms and conditions set forth herein, agreesthe Company agrees to issue and sell to each of the Initial Purchasers, severally and not jointly, and each of the Initial Purchasers, severally and not jointly, agrees to purchase from the Company, that respective the principal amount of the Notes Securities set forth opposite the name of such Initial Purchaser’s name in Purchaser on Schedule 1 hereto, hereto at a purchase price equal to 98.827to, in the case of the Senior Subordinated Notes, 96.804% of the principal amount thereof plus accrued interestand, if anyin the case of the Senior Subordinated Discount Notes, from August 14, 2009 to 57.919% of the Closing Date (as defined below)principal amount thereof. The Company will shall not be obligated to deliver any of the Notes Securities except upon payment for all of the Notes Securities to be purchased as provided herein.
(b) The Company understands that the Initial Purchasers intend have advised the Company that they propose to offer the Notes Securities for resale on upon the terms set forth in the Time of Sale Information, and subject to the conditions set forth hereinherein and in the Offering Memorandum. Each Initial Purchaser, severally and not jointly, represents and represents, warrants to the Company and agrees with the Company that:
that (i) it is a qualified institutional buyer (a “QIB”) within the meaning of Rule 144A under purchasing the Securities Act (“Rule 144A”) and an accredited investor within the meaning of Rule 501(a) pursuant to a private sale exempt from registration under the Securities Act;
, (ii) it has not solicited offers for, or offered or sold, and will not solicit offers for, or offer or sell, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act (“"Regulation D”") or in any ------------ manner involving a public offering within the meaning of Section 4(2) of the Securities Act; and
Act and (iii) it has not solicited and will solicit offers forfor the Securities only from, or and has offered or sold, sold and will not solicit offers foroffer, sell or offer or selldeliver the Securities, the Securities as part of their initial offering by them except:
offering, only (A) within the United States to persons whom it reasonably believes to be QIBs qualified institutional buyers ("Qualified Institutional Buyers"), as defined in transactions pursuant to Rule 144A and in connection with under the ------------------------------ Securities Act ("Rule 144A"), or if any such person is buying for one or more --------- institutional accounts for which such person is acting as fiduciary or agent, only when such person has represented to it that each such sale, it account is a Qualified Institutional Buyer to whom notice has taken or will take reasonable steps to ensure that the purchaser of the Securities is aware been given that such sale or delivery is being made in reliance on Rule 144A; and
144A and in each case, in transactions in accordance with Rule 144A and (B) outside the United States to persons other than U.S. persons in accordance with reliance on Regulation S under the restrictions set forth in Annex C hereto.Securities Act ("Regulation S"). ------------
(c) In connection with the offer and sale of Securities in reliance on Regulation S, each Initial Purchaser, severally and not jointly, represents, warrants and agrees that:
(i) the Securities have not been registered under the Securities Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except pursuant to an exemption from, or in transactions not subject to, the registration requirements of the Securities Act.
(ii) such Initial Purchaser has offered and sold the Securities, and will offer and sell the Securities, (A) as part of their distribution at any time and (B) otherwise until 40 days after the later of the commencement of the offering of the Securities and the Closing Date, only in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act.
(iii) none of such Initial Purchaser or any of its affiliates or any other person acting on its or their behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S.
(iv) at or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchases Securities from it during the restricted period a confirmation or notice to substantially the following effect: "The Securities covered hereby have not been registered under the U.S. Securities Act of 1933, as amended (the "Securities Act"), and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."
(v) it has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) Each Initial Purchaser, severally and not jointly, represents, warrants and agrees that (i) it has not offered or sold and prior to the date six months after the Closing Date will not offer or sell any Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995; (ii) it has complied and will comply with all applicable provisions of the Financial Services Act 1986 and the Public Offers of Securities Regulations 1995 with respect to anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is of a kind described in Article 11(3) of the Financial Services Act 1986 (Investment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) Each Initial Purchaser, severally and not jointly, agrees that, prior to or simultaneously with the confirmation of sale by such Initial Purchaser to any purchaser of any of the Securities purchased by such Initial Purchaser from the Company pursuant hereto, such Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, each Initial Purchaser acknowledges and agrees that the Company and, for purposes of the opinions to be delivered to the Initial Purchasers pursuant to Sections 6(f5(d) and 6(g(e), counsel for the Company and counsel for the Initial Purchasers, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchasers, Purchasers and their compliance by the Initial Purchasers with their agreements, agreements contained in paragraph (b) above (including Annex C hereto)this Section 2, and each Initial Purchaser hereby consents to such reliance.
(df) The Company acknowledges and agrees that the Initial Purchasers may offer and sell Securities to or through any affiliate of an Initial Purchaser and that any such affiliate may offer and sell Securities purchased by it to or through any an Initial Purchaser.
(e) Each of the Company and the Guarantors acknowledges and agrees that the Initial Purchasers are acting solely in the capacity of arm’s length contractual counterparties to the Company and the Guarantors with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as financial advisors or fiduciaries to, or agents of, the Company, the Guarantors, or any other person. Additionally, neither of the Representatives nor any other Initial Purchaser is advising the Company, the Guarantors, or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company and the Guarantors shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby, and the Initial Purchasers shall not have any responsibility or liability to the Company or the Guarantors with respect thereto. Any review by any Initial Purchaser of the Company, the Guarantors, and the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of such Initial Purchaser and shall not be on behalf of the Company, the Guarantors, or any other person.
Appears in 1 contract
