Representations and Warranties of the Initial Purchaser. The Initial Purchaser represents and warrants that: (a) It is a QIB. (b) It (i) is not acquiring the Units with a view to any distribution thereof that would violate the Act or the securities laws of any state of the United States or any other applicable jurisdiction, and (ii) will be soliciting offers for the Units only from, and will be reoffering and reselling the Units only to (A) persons in the United States whom it reasonably believes to be QIBs in reliance on the exemption from the registration requirements of the Act provided by Rule 144A or (B) a limited number of Accredited Investors that execute and deliver to each of the Issuers and the Initial Purchaser a letter containing certain representations and agreements in the form attached as Annex A to the Offering Circular. (c) No form of general solicitation or general advertising in violation of the Act has been or will be used by such Initial Purchaser or any of its representatives in connection with the offer and sale of any of the Units. (d) In connection with the Exempt Resales, it will solicit offers to buy the Units only from, and will offer and sell the Units only to, Eligible Initial Purchasers who, in purchasing such Units, will be deemed to have represented and agreed (i) if such Eligible Initial Purchasers are QIBs, that they are purchasing the Units for their own accounts or accounts with respect to which they exercise sole investment discretion and that they or such accounts are QIBs, (ii) that the Units, the Series A Notes and the Convertible Preferred Membership Interests will not have been registered under the Act and may be resold, pledged or otherwise transferred, prior to the date that is two years (or such other period that may hereafter be provided under Rule 144(k) as permitting resales of restricted securities by non-affiliates without restriction) after the later of the original issue date of the Units and the last date on which any of the Issuers or any of their respective affiliates was the owner of the Units, the Series A Notes and the Convertible Preferred Membership Interests only (A) to the Issuers, (B) pursuant to a registration statement which has been declared effective under the Act, (C) for so long as the Units, the Series A Notes and the Convertible Preferred Membership Interests are eligible for resale pursuant to Rule 144A under the Act, to a person who the seller reasonably believes is a QIB that purchases for its own account or the account of a QIB to whom notice is given that the transfer is being made in reliance on Rule 144A, (D) to an institutional "accredited investor" within the meaning of subparagraph (a)( 1), (2), (3) or (7) of Rule 501 under the Act that is acquiring the Units for its own account or the account of such an institutional "accredited investor," for investment purposes and not with a view to, or for offer or sale in connection with, any distribution in violation of the Act or (E) pursuant to another available exemption from the registration requirements of the Act, and (iii) that the holder will, and each subsequent holder is required to, notify any purchaser from it of the security evidenced thereby of the resale restrictions set forth in (ii) above. (e) It has all requisite power and authority to enter into, deliver and perform its obligations under this Agreement and the Registration Rights Agreement and each of this Agreement and the Registration Rights Agreement has been duly authorized by it.
Appears in 1 contract
Representations and Warranties of the Initial Purchaser. The Initial Purchaser represents and warrants that:
(a) It is a QIB.
(b) It (i) is not acquiring the Units Series A Notes with a view to any distribution thereof that would violate the Act or the securities laws of any state of the United States or any other applicable jurisdiction, and (ii) will be soliciting offers for the Units Series A Notes only from, and will be reoffering and reselling the Units Series A Notes only to (A) persons in the United States whom it reasonably believes to be QIBs in reliance on the exemption from the registration requirements of the Act provided by Rule 144A or (B) a limited number of Accredited Investors that execute and deliver to each of the Issuers and the Initial Purchaser a letter containing certain representations and agreements in the form attached as Annex A to the Offering Circular.
(c) No form of general solicitation or general advertising in violation of the Act has been or will be used by such the Initial Purchaser or any of its representatives in connection with the offer and sale of any of the UnitsSeries A Notes.
(d) In connection with the Exempt Resales, it will solicit offers to buy the Units Series A Notes only from, and will offer and sell the Units Series A Notes only to, Eligible Initial Purchasers who, in purchasing such UnitsSeries A Notes, will be deemed to have represented and agreed (i) if such Eligible Initial Purchasers are QIBs, that they are purchasing the Units Series A Notes for their own accounts or accounts with respect to which they exercise sole investment discretion and that they or such accounts are QIBs, (ii) that the Units, the such Series A Notes and the Convertible Preferred Membership Interests will not have been registered under the Act and may be resold, pledged or otherwise transferred, prior to the date that is two years (or such other period that may hereafter be provided under Rule 144(k) as permitting resales of restricted securities by non-non- affiliates without restriction) after the later of the original issue date of the Units Series A Notes and the last date on which any either of the Issuers or any of their respective affiliates was the owner of the Units, the Series A Notes and the Convertible Preferred Membership Interests only (A) to the Issuers, (B) pursuant to a registration statement which has been declared effective under the Act, (C) for so long as the Units, the Series A Notes and the Convertible Preferred Membership Interests are eligible for resale pursuant to Rule 144A under the Act, to a person who the seller reasonably believes is a QIB that purchases for its own account or the account of a QIB to whom notice is given that the transfer is being made in reliance on Rule 144A, (D) to an institutional "accredited investor" within the meaning of subparagraph Subparagraph (a)( 1a)(1), (2), (3) or (7) of Rule 501 under the Act that is acquiring the Units Series A Notes for its own account or the account of such an institutional "accredited investor," for investment purposes and not with a view to, or for offer or sale in connection with, any distribution in violation of the Act or (E) pursuant to another available exemption from the registration requirements of the Act, and (iii) that the holder will, and each subsequent holder is required to, notify any purchaser from it of the security evidenced thereby of the resale restrictions set forth in (ii) above.
(e) It has all requisite power and authority to enter into, deliver and perform its obligations under this Agreement and the Registration Rights Agreement and each of this Agreement and the Registration Rights Agreement has been duly and validly authorized by it.
Appears in 1 contract
Representations and Warranties of the Initial Purchaser. The Initial Purchaser represents and warrants thatto, and agrees with, the Issuers:
(a) It Such Initial Purchaser is a QIBQIB with such knowledge and experience in financial and business matters as are necessary in order to evaluate the merits and risks of an investment in the Series A Notes.
(b) It Such Initial Purchaser (i) is not acquiring the Units Series A Notes with a view to any distribution thereof or with any present intention of offering or selling any of the Series A Notes in a transaction that would violate the Act or the securities laws of any state State of the United States or any other applicable jurisdiction, jurisdiction and (ii) will be soliciting offers for the Units only from, and will be reoffering and reselling the Units Series A Notes only to (A) persons in the United States whom it reasonably believes to be QIBs in reliance on the exemption from the registration requirements of the Act provided by Rule 144A or (B) and to a limited number of Accredited Investors Institutions that execute and deliver a letter to each of the Issuers and the Initial Purchaser a letter containing certain representations and agreements in the form attached as Annex ----- A to the Offering Circular.. -
(c) No form of general solicitation or general advertising in violation (within the meaning of Regulation D under the Act Act) has been or will be used by such Initial Purchaser or any of its representatives in connection with the offer and sale of any of the UnitsSeries A Notes pursuant hereto, including, but not limited to, articles, notices or other communications published in any newspaper, magazine or similar medium, or broadcast over television or radio, or transmitted over the Internet, or communicated in any seminar or meeting whose attendees have been invited by any general solicitation or general advertising.
(d) In Such Initial Purchaser agrees that, in connection with the Exempt Resales, it such Initial Purchaser will solicit offers to buy the Units Series A Notes only from, and will offer and to sell the Units Series A Notes only to, Eligible Purchasers. The Initial Purchasers who, in purchasing such Units, Purchaser further agrees that it will be deemed offer to have represented and agreed (i) if such Eligible Initial Purchasers are QIBs, that they are purchasing the Units for their own accounts or accounts with respect to which they exercise sole investment discretion and that they or such accounts are QIBs, (ii) that the Units, sell the Series A Notes only to, and will solicit offers to buy the Convertible Preferred Membership Interests will not have been registered under Series A Notes only from (i) Eligible Purchasers that the Act Initial Purchaser reasonably believes are QIBs and (ii) Accredited Institutions who make the representations contained in, and execute and return to the Initial Purchaser, a certificate in the form of Annex ----- A attached to the Offering Circular, in each case, that agree that (A) the - Series A Notes purchased by them may be resold, pledged or otherwise transferred, prior transferred within the time period referred to the date that is two years (or such other period that may hereafter be provided under Rule 144(k) (taking into account the provisions of Rule 144(d) under the Act, if applicable) under the Act, as permitting resales of restricted securities by non-affiliates without restriction) after in effect on the later of the original issue date of the Units and the last date on which any transfer of the Issuers or any of their respective affiliates was the owner of the Units, the such Series A Notes and the Convertible Preferred Membership Interests Notes, only (A1) to the Issuers, (B2) pursuant to a registration statement which has been declared effective under the Act, (C) for so long as the Units, the Series A Notes and the Convertible Preferred Membership Interests are eligible for resale pursuant to Rule 144A under the Act, to a person who whom the seller reasonably believes is a QIB that purchases purchasing for its own account or for the account of a QIB to whom notice is given that in a transaction meeting the transfer is being made in reliance on requirements of Rule 144A, (D) to an institutional "accredited investor" within 144A under the meaning of subparagraph (a)( 1), (2)Act, (3) or in an offshore transaction (7as defined in Rule 902 under the Act) meeting the requirements of Rule 501 904 of the Act, (4) in a transaction meeting the requirements of Rule 144 under the Act that is acquiring Act, (5) to an Accredited Institution that, prior to such transfer, furnishes the Units for its own account or Trustee a signed letter containing certain representations and agreements relating to the account registration of transfer of such Note (the form of which is substantially the same as Annex A to the Offering Circular) and, if such ------- transfer is in respect of an institutional "accredited investor," for investment purposes and not aggregate principal amount of Series A Notes less than $250,000, an opinion of counsel acceptable to the Issuers that such transfer is in compliance with a view tothe Act, or for offer or sale (6) in connection with, any distribution in violation of the Act or (E) pursuant to accordance with another available exemption from the registration requirements of the ActAct (and based upon an opinion of counsel acceptable to the Issuers) or (7) pursuant to an effective registration statement and, in each case, in accordance with the applicable securities laws of any state of the United States or any other applicable jurisdiction and (iiiB) that they will deliver to each person to whom such Series A Notes or an interest therein is transferred a notice substantially to the holder will, and each subsequent holder is required to, notify any purchaser from it effect of the security evidenced thereby of the resale restrictions set forth in (ii) aboveforegoing.
(e) It None of the Initial Purchaser nor any of its affiliates or any person acting on its or their behalf has all requisite power engaged or will engage in any directed selling efforts within the meaning of Regulation S with respect to the Series A Notes. The Initial Purchaser acknowledges that the Issuers and, for purposes of the opinions to be delivered to the Initial Purchaser pursuant to Section 11 hereof, counsel to the Issuers and authority counsel to enter into, deliver the Initial Purchaser will rely upon the accuracy and perform its obligations under this Agreement truth of the foregoing representations and the Registration Rights Agreement and each of this Agreement and the Registration Rights Agreement has been duly authorized by itInitial Purchaser hereby consents to such reliance.
Appears in 1 contract
Samples: Purchase Agreement (Isle of Capri Black Hawk Capital Corp)
Representations and Warranties of the Initial Purchaser. The Initial Purchaser individually represents and warrants that:
(a) It is a QIBQIB as defined in Rule 144A under the Act.
(b) It (i) is not acquiring the Units with a view to any distribution thereof that would violate the Act or the securities laws of any state of the United States or any other applicable jurisdiction, and (ii) will be soliciting offers for the Units only from, and will be reoffering and reselling the Units only to (A) persons in the United States whom it reasonably believes to be QIBs in reliance on the exemption from the registration requirements of the Act provided by Rule 144A or (B) a limited number of Accredited Investors that execute and deliver to each of the Issuers and the Initial Purchaser a letter containing certain representations and agreements in the form attached as Annex A to the Offering Circular.
(c) No form of general solicitation or general advertising in violation of the Act has been or will be used by such Initial Purchaser or any of its representatives in connection with the offer and sale of any of the Units.
(d) In connection with any resale of the Exempt Resales, Units (other than pursuant to an effective registration statement under the Act) it will solicit offers to buy the Units only from, and will offer and sell the Units only to, Eligible Initial Purchasers QIBs who, in purchasing such Units, will be deemed to have represented and agreed agreed:
(i) if such Eligible Initial Purchasers are QIBs, that they are it is purchasing the Units for their its own accounts or accounts with respect to which they exercise sole investment discretion and that they or such accounts are QIBs, accounts,
(ii) that the Units, the Series A Notes and the Convertible Preferred Membership Interests Warrants will not have been registered under the Act and may be resold, pledged or otherwise transferred, prior to the date that is two years (or such other period that may hereafter be provided under Rule 144(k) as permitting resales of restricted securities by non-affiliates nonaffiliates without restriction) after the later of the original issue date of the Units and the last date on which any either of the Issuers or any of their respective affiliates Affiliates was the owner of the Units, the Series A Notes and the Convertible Preferred Membership Interests Warrants only (A) to either of the Issuers, (B) pursuant to a registration statement which has been declared effective under the Act, (C) for so long as the Units, the Series A Notes and the Convertible Preferred Membership Interests Warrants are eligible for resale pursuant to Rule 144A an exemption under the Act, to a person who the seller reasonably believes is a QIB that purchases for its own account or the account of a QIB to whom notice is given that the transfer is being made in reliance on Rule 144Aan exemption under the Act, or (D) to an institutional "accredited investor" within the meaning of subparagraph (a)( 1), (2), (3) or (7) of Rule 501 under the Act that is acquiring the Units for its own account or the account of such an institutional "accredited investor," for investment purposes and not with a view to, or for offer or sale in connection with, any distribution in violation of the Act or (E) pursuant to another available exemption from the registration requirements of the Act, and and
(iii) that the holder will, and each subsequent holder is required to, notify any purchaser from it of the security evidenced thereby of the resale restrictions set forth in (ii) above.
(ed) It has all requisite power and authority to enter into, deliver and perform its obligations under this Agreement, the Note Registration Rights Agreement and the Warrant Registration Rights Agreement and each of this Agreement, the Note Registration Rights Agreement and the Warrant Registration Rights Agreement has been duly authorized by it.
Appears in 1 contract
Representations and Warranties of the Initial Purchaser. The Initial Purchaser proposes to offer the Notes for sale upon the terms and conditions set forth in this Agreement, and the Initial Purchaser hereby represents and warrants to and agrees with the Company that:
(a) It is a QIB.
(b) It (i) is not acquiring other than pursuant to the Units with a view to any distribution thereof that would violate Exchange, it will offer and sell the Act or the securities laws of any state of the United States or any other applicable jurisdiction, and (ii) will be soliciting offers for the Units only from, and will be reoffering and reselling the Units Notes only to (A) persons in the United States and to U.S. persons (as described in Rule 902 of Regulation S) whom it it, or its agents, reasonably believes to be believe are QIBs in reliance on transactions meeting the exemption from the registration requirements of the Act provided by Rule 144A or (B) a limited number of Accredited Investors that execute and deliver to each of the Issuers and the Initial Purchaser a letter containing certain representations and agreements in the form attached as Annex A to the Offering Circular.
(c) No form of general solicitation or general advertising in violation of the Act has been or will be used by such Initial Purchaser or any of its representatives in connection with the offer and sale of any of the Units.
(d) In connection with the Exempt Resales, it will solicit offers to buy the Units only from, and will offer and sell the Units only to, Eligible Initial Purchasers whothat, in purchasing such UnitsNotes, will be are deemed to have represented and agreed as provided in the Final Memorandum under the caption “Transfer restrictions”;
(ib) if it is a QIB within the meaning of Rule 144A;
(c) it has not and will not, directly or indirectly, solicit offers for, or offer or sell, the Notes by any form of “general solicitation” or “general advertising” (as such Eligible Initial Purchasers terms are QIBsused in Regulation D under the Act) or in any manner involving a public offering within the meaning of Section 4(a)(2) of the Act;
(d) it will offer and sell the Notes to persons outside the United States that are not U.S. persons (as defined in Rule 902 of Regulation S) in accordance with Regulation S under the Act;
(e) it has not made and will not make, that they are purchasing the Units for their own accounts directly or accounts indirectly, any “directed selling efforts” (as defined in Rule 902 of Regulation S) with respect to which they exercise sole investment discretion the Notes or the Shares; and it has complied and will comply with the offering restrictions requirements of Rule 903 of Regulation S;
(f) in connection with offers and sales of the Notes by it other than pursuant to Rule 144A, it will send to each distributor, dealer or person receiving a selling concession, fee or other remuneration that they purchases Notes from it during the 40-day distribution compliance period set forth in Rule 903 of Regulation S a confirmation or such accounts are QIBs, (ii) that notice to substantially the Units, the Series A Notes and the Convertible Preferred Membership Interests will following effect: “The Securities covered hereby have not have been registered under the U.S. Securities Act of 1933, as amended (the “Securities Act”), and may not be resoldoffered or sold within the United States or to, pledged or otherwise transferredfor the account or benefit of, prior to the date that is two years U.S. persons (or such other period that may hereafter be provided under Rule 144(ki) as permitting resales part of restricted securities by non-affiliates without restrictiontheir distribution at any time or (ii) otherwise until 40 days after the later of the original issue date commencement of the Units offering and the last date on which any of closing date, except in either case in accordance with Regulation S (or Rule 144A if available) under the Issuers or any of their respective affiliates was Securities Act. Terms used above have the owner of the Units, the Series A Notes and the Convertible Preferred Membership Interests only meaning given to them by Regulation S”;
(Ag) to the Issuersextent it makes any offers or sales of Notes in Canada, it will offer and sell such Notes in Canada, and to residents of Canada, only in transactions that are exempt from the prospectus requirements of applicable Canadian Securities Laws;
(Bh) pursuant it and/or its affiliates have the requisite registrations or licenses, or are exempt therefrom, under applicable Canadian Securities Laws in each Canadian jurisdiction where it will offer or sell the Notes;
(i) it will offer and sell the Notes only to a registration statement which has been declared effective under the Actpersons that are either (i) resident in Canada who are “accredited investors”, (C) for so long as the Units, the Series A Notes and the Convertible Preferred Membership Interests are eligible for resale pursuant to Rule 144A under the Act, to a person who the seller reasonably believes is a QIB that purchases for its own account or the account of a QIB to whom notice is given that the transfer is being made in reliance on Rule 144A, (D) to an institutional "accredited investor" within the meaning of subparagraph National Instrument 45-106 — Prospectus Exemptions (a)( 1), (2), (3“NI 45-106”) in compliance with the requirements of Canadian Securities Laws or (7ii) not resident in Canada, and in each case who are deemed to acknowledge in a subscription agreement that: (A) no securities commission or similar regulatory authority has reviewed or passed on the merits of Rule 501 under the Act that is acquiring the Units for its own account Notes or the account Shares issuable upon conversion of the Notes; (B) there is no government or other insurance covering the Notes or the Shares issuable upon conversion of the Notes; (C) there are risks associated with the purchase of the Notes and the Shares issuable upon conversion of the Notes; (D) there are restrictions on such person’s ability to resell the Notes and the Shares issuable upon conversion of the Notes and it is the responsibility of such an institutional "accredited investor," for investment purposes person to find out what those restrictions are and not to comply with a view to, them before selling the Notes or for offer or sale in connection with, any distribution in violation the Shares issuable upon conversion of the Act or Notes; and (E) pursuant to another available the Company has advised such purchaser that the Company is relying on an exemption from the registration requirements to provide the purchaser with a prospectus and to sell the Notes and Shares issuable upon conversion of the ActNotes through a person registered to sell securities under the Securities Act (Ontario) and, as a consequence of acquiring the Notes and any Shares issuable upon conversion of the Notes pursuant to this exemption, certain protections, rights and remedies provided by the Securities Act (Ontario), including statutory rights of rescission or damages, will not be available to the purchaser, and in (iiii) that such persons who purchase the holder will, Notes are deemed to have made such representations and each subsequent holder is required to, notify any purchaser from it agreements provided in the Canadian final offering memorandum prepared for delivery with the Final Memorandum to prospective purchasers in Canada under the caption “Representations of the security evidenced thereby of the resale restrictions set forth Investors” and in (ii) above.such persons who purchase the Notes are deemed to have made such representations and agreements as provided in the Final Memorandum under the caption “Transfer Restrictions”;
(ej) It it will deliver to the Company, as soon as practicable, and in any event in sufficient time to allow the Company to comply with all Canadian Securities Laws in any jurisdiction in which the Notes are offered or sold, all necessary information to allow the Company to file all required forms, including those required under NI 45-106, with the relevant Securities Authorities;
(k) it acknowledges that (i) the Notes have not been registered or qualified for distribution in any Canadian province, and are not eligible for resale in Canada for a period ending four months plus one day from the Closing Date other than through an exemption from the prospectus requirement under Canadian Securities Laws, and (ii) any certificate representing the Notes sold in Canada will bear, or if the Notes are entered into a direct registration or other electronic book-entry system then the Initial Purchaser acknowledges notice of such Notes sold in Canada being subject to, the legend set forth below: “UNLESS PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF THIS SECURITY MUST NOT TRADE THE SECURITY BEFORE [insert four months plus 1 day from the Closing Date]; and
(l) it is an “accredited investor”, within the meaning of NI 45-106, entitled to purchase the Notes in reliance on exemptions from the prospectus requirements of applicable Canadian Securities Laws and, unless it has all requisite power and authority provided written advice to enter intothe contrary to the Company, deliver and perform its obligations under this Agreement and it is not an “insider” of the Registration Rights Agreement and each Company (within the meaning of this Agreement and the Registration Rights Agreement has been duly authorized by itCanadian Securities Laws).
Appears in 1 contract
Representations and Warranties of the Initial Purchaser. The Initial ------------------------------------------------------- Purchaser represents and warrants to the Company that:
(a) It is a QIBQualified Institutional Buyer with such knowledge and experience in financial and business matters as are necessary to evaluate the merits and risks of an investment in the Notes. It is acquiring its interest in the Notes for its own account as principal for the purpose of investment and not with a view to the distribution or resale thereof, except resales in compliance with the registration requirements or exemption provisions of the Act and that neither it, nor anyone acting on its behalf, will offer the Notes so as to bring the issuance and sale of the Notes within the provisions of Section 5 of the Act.
(b) It The Initial Purchaser (i1) is not acquiring the Units Notes with any present intention of offering or selling any of the Notes in a view to any distribution thereof transaction that would violate the Act or the securities laws of any state of the United States or any other applicable jurisdiction, and (ii2) will be soliciting offers for the Units only from, and will be reoffering re-offering and reselling the Units Notes only to (A) persons in the United States whom it reasonably believes to be QIBs Qualified Institutional Buyers in reliance on the exemption from the registration requirements of the Act provided by Rule 144A or (B) a limited number of Accredited Investors that execute under the Act and deliver to each outside the United States in reliance on Regulation S of the Issuers Act, and the Initial Purchaser a letter containing certain representations and agreements in the form attached as Annex A to the Offering Circular.
(c3) No has used no form of general solicitation or general advertising in violation of the Act has been or will be used by such Initial Purchaser or any of its representatives in connection with the offer and sale of any of the UnitsNotes.
(dc) In connection with the Exempt Resales, it the Initial Purchaser will solicit offers to buy the Units Notes only from, and will offer and to sell the Units Notes only to, the Eligible Purchasers. The Initial Purchasers whoPurchaser will offer to sell the Notes only to, and will solicit offers to buy the Notes only from, persons who in purchasing such Units, Notes will be deemed to have represented and agreed that (i1) if such Eligible Initial Purchasers are QIBsPurchaser is a Qualified Institutional Buyer, that they are it is purchasing the Units Notes for their its own accounts account or accounts an account with respect to which they exercise it exercises sole investment discretion and that they it or such accounts are QIBsQualified Institutional Buyers, (ii2) that the Units, the Series A such Notes and the Convertible Preferred Membership Interests will have not have been registered under the Act or any securities laws of any jurisdiction and that the Notes may be offered, resold, pledged or otherwise transferred, prior to the date that is two years (or such other period that may hereafter be provided under Rule 144(k) as permitting resales of restricted securities by non-affiliates without restriction) after the later of the original issue date of the Units and the last date on which any of the Issuers or any of their respective affiliates was the owner of the Units, the Series A Notes and the Convertible Preferred Membership Interests transferred only (Ai) to the Issuers, (B) pursuant to a registration statement which has been declared effective under the Act, (C) for so long as the Units, the Series A Notes and the Convertible Preferred Membership Interests are eligible for resale pursuant to Rule 144A under the Act, to a person who the seller reasonably believes is a QIB that purchases for its own account or Qualified Institutional Buyer in a transaction meeting the account requirements of a QIB to whom notice is given that the transfer is being made in reliance on Rule 144A, (D) in a transaction meeting the requirements of Rule 144, outside the United States to a non-U.S. person in a transaction meeting the requirements of Rule 904 under the Act, to an institutional "accredited investor" within the meaning of subparagraph (a)( 1as defined in Rule 501(a)(1), (2), (3) or (7) of Rule 501 under the Act Act), that, prior to such transfer, furnishes the Trustee a signed letter containing certain representations and agreements and, if such transfer is in an aggregate principal amount of less than $100,000, an opinion of counsel acceptable to the Company that such transfer is acquiring in compliance with the Units for its own account or the account of such an institutional "accredited investor," for investment purposes and not with a view toAct, or for offer or sale in connection with, any distribution in violation of the Act or (E) pursuant to accordance with another available exemption from the registration requirements of the ActAct (and based upon an opinion of counsel if the Company so requests), and (ii) to the Company, (iii) that pursuant to an effective registration statement and, in each case, in accordance with any applicable securities laws of any state of the holder United States or any other applicable jurisdiction, (3) such Eligible Purchaser will, and each subsequent holder is will be required to, notify any purchaser of any security from it of the security evidenced thereby of the resale restrictions set forth in (ii2) above.
, and (e4) It has all requisite power the Notes acquired by such Eligible Purchasers in certificated form will bear the legends set forth in the preamble of this Agreement. The Initial Purchaser also understands that the Company and, for purposes of the opinions to be delivered to the Initial Purchaser pursuant to Sections -------- 6(d) and authority 6(e) hereof, counsel to enter intothe Company and counsel to the Initial ------------- Purchaser, deliver will rely upon the accuracy and perform its obligations under this Agreement truth of the foregoing representations and agreements and the Registration Rights Agreement and each of this Agreement and the Registration Rights Agreement has been duly authorized by itInitial Purchaser hereby consents to such reliance.
Appears in 1 contract
Representations and Warranties of the Initial Purchaser. The Initial Purchaser proposes to offer the Securities for sale upon the terms and conditions set forth in this Agreement and the Final Memorandum, and the Initial Purchaser hereby represents and warrants to and agrees with the Company that:
(a) It is a QIB.will offer and sell the Securities only to (i) persons whom it reasonably believes are “qualified institutional buyers” (“QIBs”) within the meaning of Rule 144A in transactions meeting the requirements of Rule 144A and (ii) other eligible persons pursuant to offers and sales that occur outside the United States within the meaning of Regulation S in accordance with Regulations S, which persons, in purchasing such Securities, are deemed to have represented and agreed as provided in the Final Memorandum under the caption “Notice to investors”;
(b) It is a QIB within the meaning of Rule 144A;
(c) It has not and will not directly or indirectly, solicit offers in the United States for, or offer or sell, the Securities by any form of general solicitation, general advertising (as such terms are used in Regulation D) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act; and
(d) With respect to offers and sales outside the United States:
(i) is not acquiring It understands that no action has been or will be taken in any jurisdiction by the Units with a view to any distribution thereof Company that would violate permit a public offering of the Securities, or possession or distribution of either Memorandum or any other offering or publicity material relating to the Securities, in any country or jurisdiction where action for that purpose is required;
(ii) The Securities have not been registered under the Securities Act and may not be offered or the securities laws of any state of sold within the United States or any other applicable jurisdictionto, and (ii) will be soliciting offers or for the Units only fromaccount or benefit of, and will be reoffering and reselling the Units only U.S. persons except in accordance with Rule 144A or pursuant to (A) persons in the United States whom it reasonably believes to be QIBs in reliance on the another exemption from the registration requirements of the Act provided by Rule 144A Securities Act; and
(A) It has not offered or sold, and prior to the expiry of a period of six (6) months from the time of purchase, 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 that 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; (B) a limited number it has only communicated or caused to be communicated and will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of Accredited Investors that execute and deliver to each section 21 of the Issuers Financial Services and Markets Xxx 0000 (the Initial Purchaser a letter containing certain representations and agreements in the form attached as Annex A to the Offering Circular.
(c“FSMA”)) No form of general solicitation or general advertising in violation of the Act has been or will be used received by such Initial Purchaser or any of its representatives it in connection with the offer and issue or sale of any Securities in circumstances in which section 21(1) of the Units.
FSMA does not apply to the Company; and (dC) In connection with the Exempt Resales, it will solicit offers to buy the Units only from, has complied and will offer and sell comply with all applicable provisions of the Units only to, Eligible Initial Purchasers who, in purchasing such Units, will be deemed to have represented and agreed (i) if such Eligible Initial Purchasers are QIBs, that they are purchasing the Units for their own accounts or accounts FSMA with respect to which they exercise sole investment discretion and that they or such accounts are QIBsanything done by it in relation to the Securities in, (ii) that the Units, the Series A Notes and the Convertible Preferred Membership Interests will not have been registered under the Act and may be resold, pledged from or otherwise transferred, prior to involving the date that is two years (or such other period that may hereafter be provided under Rule 144(k) as permitting resales of restricted securities by non-affiliates without restriction) after the later of the original issue date of the Units and the last date on which any of the Issuers or any of their respective affiliates was the owner of the Units, the Series A Notes and the Convertible Preferred Membership Interests only (A) to the Issuers, (B) pursuant to a registration statement which has been declared effective under the Act, (C) for so long as the Units, the Series A Notes and the Convertible Preferred Membership Interests are eligible for resale pursuant to Rule 144A under the Act, to a person who the seller reasonably believes is a QIB that purchases for its own account or the account of a QIB to whom notice is given that the transfer is being made in reliance on Rule 144A, (D) to an institutional "accredited investor" within the meaning of subparagraph (a)( 1), (2), (3) or (7) of Rule 501 under the Act that is acquiring the Units for its own account or the account of such an institutional "accredited investor," for investment purposes and not with a view to, or for offer or sale in connection with, any distribution in violation of the Act or (E) pursuant to another available exemption from the registration requirements of the Act, and (iii) that the holder will, and each subsequent holder is required to, notify any purchaser from it of the security evidenced thereby of the resale restrictions set forth in (ii) aboveUnited Kingdom.
(e) It has all requisite power and authority to enter into, deliver and perform its obligations under this Agreement and the Registration Rights Agreement and each of this Agreement and the Registration Rights Agreement has been duly authorized by it.
Appears in 1 contract
Representations and Warranties of the Initial Purchaser. The Initial Purchaser represents and warrants thatto the Issuer, the Company and the Guarantors that as of the date hereof and as of the Closing Date:
(a) It is a QIBQIB as defined in Rule 144A under the Act, with such knowledge and experience in financial and business matters as are necessary in order to evaluate the merits and risks of an investment in the Notes and the Initial Purchaser acknowledges that it is purchasing the Notes pursuant to a private sale exempt from registration under the Act and that the Notes have not been registered under the Act. It will offer the Notes for resale only upon the terms and conditions set forth in this Agreement and in the Final Offering Circular.
(b) It (i) is not acquiring the Units Notes with a view to any distribution thereof that would violate the Act or the securities laws of any state of the United States States, the United Kingdom or any other applicable jurisdiction, and (ii) . It will be soliciting solicit offers for to buy the Units Notes only from, and will be reoffering offer and reselling sell the Units Notes only to to, (A) persons in reasonably believed by the United States whom it reasonably believes Initial Purchaser to be QIBs in reliance on the exemption from the registration requirements of the Act provided by Rule 144A or (B) a limited number of Accredited Investors that execute and deliver to each of the Issuers and persons reasonably believed by the Initial Purchaser to be Accredited Investors or (C) non-U.S. persons reasonably believed by the Initial Purchaser to be a letter containing certain representations purchaser referred to in Regulation S under the Act; provided, however, that in purchasing such Notes, such persons are deemed to have represented and agreements agreed as provided under the caption “Notice to Investors” contained in the form attached as Annex A to the Final Offering Circular.
(c) No form of general solicitation or general advertising in violation of the Act has been or will be used by such Initial Purchaser or nor will any offers in any manner involving a public offering within the meaning of its representatives in connection with the offer and sale of any Section 4(2) of the UnitsAct.
(d) In connection with With respect to offers and sales outside the Exempt ResalesUnited States, it will solicit offers to buy has offered the Units only from, Notes and will offer and sell the Units only to, Eligible Initial Purchasers who, in purchasing such Units, will be deemed to have represented and agreed Notes (i) if such Eligible Initial Purchasers are QIBs, that they are purchasing the Units for their own accounts or accounts with respect to which they exercise sole investment discretion and that they or such accounts are QIBs, (ii) that the Units, the Series A Notes and the Convertible Preferred Membership Interests will not have been registered under the Act and may be resold, pledged or otherwise transferred, prior to the date that is two years (or such other period that may hereafter be provided under Rule 144(k1) as permitting resales part of restricted securities by non-affiliates without restrictionits distribution at any time and (2) otherwise until 40 days after the later of the original issue date commencement of the Units and the last date on which any offering of the Issuers or any of their respective affiliates was the owner of the Units, the Series A Notes and the Convertible Preferred Membership Interests Closing Date, only (A) to the Issuers, (B) pursuant to a registration statement which has been declared effective under the Act, (C) for so long as the Units, the Series A Notes and the Convertible Preferred Membership Interests are eligible for resale pursuant to in accordance with Rule 144A under the Act, to a person who the seller reasonably believes is a QIB that purchases for its own account 903 of Regulation S or the account of a QIB to whom notice is given that the transfer is being made in reliance on Rule 144A, (D) to an institutional "accredited investor" within the meaning of subparagraph (a)( 1), (2), (3) or (7) of Rule 501 under the Act that is acquiring the Units for its own account or the account of such an institutional "accredited investor," for investment purposes and not with a view to, or for offer or sale in connection with, any distribution in violation of the Act or (E) pursuant to another available exemption from the registration requirements of the Act. Accordingly, neither it nor any person acting on its behalf has engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the Notes. Terms used in this Section 6(e) and (iiiSection 6(f) that have the holder will, and each subsequent holder is required to, notify any purchaser from it of the security evidenced thereby of the resale restrictions set forth in (ii) above.meanings given to them by Regulation S.
(e) It has all requisite power The Initial Purchaser agrees that, at or prior to confirmation of a sale of the Notes pursuant to Regulation S it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Notes from it or through it during the restricted period a confirmation or notice to substantially the following effect: “The Securities covered hereby have not been registered under the United States Securities Act of 1933, as amended (the “Securities Act”), and authority may not be offered or sold within the United States or to enter intoor for the account or benefit of, deliver U.S. persons (i) as part of their distribution at any time and perform its obligations under this Agreement (ii) otherwise until forty days after the later of the date upon which the offering of the Securities commenced and the Registration Rights Agreement date of closing, except in either case in accordance with Regulation S or Rule 144A under the Securities Act. Terms used above have the meaning given to them by Regulation S.”
(f) The Initial Purchaser will deliver to each Subsequent Purchaser of the Notes, in connection with its original distribution of the Notes, a copy of the Final Offering Circular, as amended and supplemented at the date of such delivery.
(g) The initial purchaser has:
(1) only communicated or caused to be communicated and will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the Financial Services and Markets Act 2000 (the “FSMA”)) received by it in connection with the issue or sale of any Notes in circumstances in which section 21(1) of the FSMA does not apply to the Issuer; and
(2) complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the notes included in this Offering in, from or otherwise involving the United Kingdom.
(h) In relation to each Member State of the European Economic Area that has implemented the Prospectus Directive (each, a “Relevant Member State”), the Initial Purchaser has represented and agreed that with effect from and including the date on which the Prospectus Directive (defined below) is implemented in that Relevant Member State (the “Relevant Implementation Date”) it has not made and will not make an offer of Notes to the public in that Relevant Member State prior to the publication of an offering circular in relation to the Notes which has been approved by the competent authority in that Relevant Member State or, where appropriate, approved in another Relevant Member State and notified to the competent authority in that Relevant Member State, all in accordance with the Prospectus Directive, except that it may, with effect from and including the Relevant Implementation Date, make an offer of Notes to the public in that Relevant Member State at any time:
(i) to legal entities which are authorized or registered to operate in the financial markets or, if not so authorized or regulated, whose corporate purpose is solely to invest in securities;
(ii) to any legal entity which has two or more of (1) an average of at least 250 employees during the last financial year; (2) a total balance sheet of more than €43,000,000 and (3) an annual net turnover of more than €50,000,000, as shown in its last annual or consolidated accounts; or
(iii) in any other circumstances which do not require the publication by the Issuer of an offering circular pursuant to Article 3 of the Prospectus Directive. For the purposes of this Agreement provision, the expression an “offer of notes to the public” in relation to any offered notes in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Registration Rights Agreement has been duly authorized notes to be offered so as to enable an investor to decide to purchase or subscribe the notes, as the same may be varied in that Member State by itany measure implementing the Prospectus Directive in that Member State and the expression “Prospectus Directive” means Directive 2003/71/BC and includes any relevant implementing measure in each Relevant Member State.
Appears in 1 contract
Representations and Warranties of the Initial Purchaser. The Initial Purchaser represents and warrants thatto Holdings as follows:
(a) It The Initial Purchaser is a QIBQIB with such knowledge and experience in financial and business matters as are necessary in order to evaluate the merits and risks of an investment in the Units.
(b) It The Initial Purchaser (i) is not acquiring the Units with a view to any distribution thereof or with any present intention of offering or selling any of the Units in a transaction that would violate the Act or the securities laws of any state State of the United States or any other applicable jurisdiction, and (ii) will be soliciting offers for the Units only from, and will be reoffering and reselling the Units only to (A) persons in the United States whom it reasonably believes to be QIBs in reliance on the exemption from the registration requirements of the Act provided by Rule 144A or (B) a limited number of Accredited Investors that execute and deliver to each non-U.S. persons outside the United States in reliance on the exemption from the registration requirements of the Issuers Act provided by Regulation S and (iii) has not solicited and, unless and until the Initial Purchaser a letter containing certain representations and agreements in Units are registered under the form attached as Annex A Act, will not solicit any offer to buy or offer to sell the Offering Circular.
(c) No Units by means of any form of general solicitation or general advertising (as such terms are defined in violation Regulation D under the Act) or in any manner involving a public offering within the meaning of the Act has been or will be used by such Act.
(c) The Initial Purchaser or any of its representatives in connection with the offer and sale of any also understands that Holdings and, for purposes of the Unitsopinions to be delivered to the Initial Purchaser pursuant hereto, counsel to Holdings and counsel to the Initial Purchaser will rely upon the accuracy and truth of the foregoing representations and the Initial Purchaser hereby consents to such reliance.
(d) In The Initial Purchaser further agrees that, in connection with the Exempt Resales, it will solicit offers to buy the Units only from, and will offer and to sell the Units only to, the Eligible Purchasers. The Initial Purchasers whoPurchaser further agrees that it will offer to sell the Units only to, and will solicit offers to buy the Units only from, persons who in purchasing such Units, Units will be deemed to have represented and agreed (i1) if such Eligible Initial Purchasers are QIBsPurchaser is a QIB, that they are it is purchasing the Units for their its own accounts account or accounts an account with respect to which they exercise it exercises sole investment discretion and that they its or such accounts are QIBs, (ii2) that the Units, the Series A Notes and the Convertible Preferred Membership Interests such Units will not have been registered under the Act and may be resold, pledged or otherwise transferred, prior to the date that is two years (or such other period that may hereafter be provided under Rule 144(k) as permitting resales of restricted securities by non-affiliates without restriction) after the later of the original issue date of the Units and the last date on which any of the Issuers or any of their respective affiliates was the owner of the Units, the Series A Notes and the Convertible Preferred Membership Interests only (A) to (I) inside the Issuers, (B) pursuant to a registration statement which has been declared effective under the Act, (C) for so long as the Units, the Series A Notes and the Convertible Preferred Membership Interests are eligible for resale pursuant to Rule 144A under the Act, United States to a person who the seller reasonably believes is a QIB that purchases for its own account or the account of a QIB to whom notice is given that the transfer is being made in reliance on Rule 144A, (D) to an "qualified institutional "accredited investorbuyer" within the meaning of subparagraph (a)( 1), (2), (3) or (7) of Rule 501 144A under the Act that is acquiring in a transaction meeting the Units for its own account or requirements of Rule 144A, (II) in a transaction meeting the account requirements of such an institutional "accredited investor," for investment purposes and not with Rule 144 under the Act, (III) outside the United States to a view to, or for offer or sale foreign person in connection with, any distribution in violation a transaction meeting the requirements of Rule 904 under the Act or (EIV) pursuant to in accordance with another available exemption from the registration requirements of the Act (and based upon an opinion of counsel if Holdings so requests), (B) to Holdings or (C) pursuant to an effective registration statement under the Act, in each case, in accordance with any applicable securities laws of any State of the United States or any other applicable jurisdiction, and (iii3) that the holder will, and each subsequent holder is required to, notify any purchaser from it of the security evidenced thereby of the resale restrictions set forth in (ii2) above.. Accordingly, the Initial Purchaser represents and agrees that neither it, its affiliates nor any persons acting on its or their behalf has engaged or will engage in any directed selling efforts within the meaning of Rule 901(b) of Regulation S with respect to the Units, and it, its affiliates and all persons acting on its or their behalf have complied and will comply with the offering restrictions requirements of Regulation S.
(e) It has all requisite power The Initial Purchaser represents and authority agrees that the Units offered and sold in reliance on Regulation S have been and will be offered and sold only in offshore transactions and that such securities have been and will be represented upon issuance by a global security that may not be exchanged for definitive securities until the expiration of the restricted period (as defined in Regulation S) (except to enter intothe extent of any beneficial owners thereof who acquired an interest therein pursuant to another exemption from registration under the Act and who will take delivery of a beneficial ownership interest in a Rule 144A Global Note (as defined in the Indenture), deliver as contemplated by the Indenture) and perform its obligations only upon certification of beneficial ownership of the securities by a non-U.S. person or a U.S. person who purchased such securities in a transaction that was exempt from the registration requirements of the Act.
(f) The Initial Purchaser agrees that, at or prior to confirmation of a sale of Units (other than a sale pursuant to Rule 144A or pursuant to Paragraph (i) of this Section 8), it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Units from it during the Restricted Period a confirmation or notice to substantially the following effect: "The Securities covered hereby have not been registered under this Agreement the Act and may not be offered and sold within the United States or to, or for the account or benefit of, U.S. persons (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering and the Registration Rights Agreement closing date, except in either case in accordance with Regulation S (or Rule 144A if available) under the Act. Terms used above have the meaning given to them by Regulation S."
(g) The Initial Purchaser further agrees that it has not entered and each will not enter into any contractual arrangement with respect to the distribution or delivery of the Units, except with its affiliates or with the prior written consent of Holdings.
(h) Notwithstanding the foregoing, Units in registered form may be offered, sold and delivered by the Initial Purchaser in the United States and to U.S. persons pursuant to Section 3 of this Agreement without delivery of the written statement required by paragraph (f) of this Section 8.
(i) The Initial Purchaser further represents and agrees that (i) it has not offered or sold and will not offer or sell any Units to persons in the Registration Rights Agreement United Kingdom prior to the expiry of the period of six months from the issue date of the Units, except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995, (ii) it has complied and will comply with all applicable provisions of the Financial Services Xxx 0000 with respect to anything done by it in relation to the Units in, from or otherwise involving the United Kingdom, and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issuance of the Units to a person who is of a kind described in Article 11(3) of the Financial Services Xxx 0000 (Investment Advertisements) (Exemptions) Order 1996 or is a person to whom the document may otherwise lawfully be issued or passed on.
(j) The Initial Purchaser agrees that it will not offer, sell or deliver any of the Units in any jurisdiction outside the United States except under circumstances that will result in compliance with the applicable laws thereof, and that it will take at its own expense whatever action is required to permit its purchase and resale of the Units in such jurisdictions. The Initial Purchaser understands that no action has been duly authorized taken to permit a public offering in any jurisdiction outside the United States where action would be required for such purpose.
(k) The Initial Purchaser agrees not to cause any advertisement of the Units to be published in any newspaper or periodical or posted in any public place and not to issue any circular relating to the Units, except such advertisements that include the statements required by itRegulation S.
(l) The sale of the Units in offshore transactions pursuant to Regulation S is not part of a plan or scheme to evade the registration provisions of the Act. Terms used in this Section 8 that have meanings assigned to them in Regulation S are used herein as so defined.
Appears in 1 contract
Representations and Warranties of the Initial Purchaser. The Initial Purchaser represents represents, warrants and warrants covenants to the Company and the Guarantors and agrees that:
(a) It Such Initial Purchaser is a QIBQIB and an “accredited investor” (as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act), with such knowledge and experience in financial and business matters as are necessary in order to evaluate the merits and risks of an investment in the Additional Notes.
(b) It Such Initial Purchaser (i) is not acquiring the Units Additional Notes with a view to any distribution thereof that would violate the Securities Act or the securities laws of any state of the United States or any other applicable jurisdiction, jurisdiction and (ii) will be soliciting offers for the Units only from, and will be reoffering and reselling the Units Additional Notes only to (A) persons in the United States whom it reasonably believes to be QIBs in reliance on the exemption from the registration requirements of the Securities Act provided by Rule 144A or (B) a limited number of Accredited Investors that execute and deliver to each of in offshore transactions in reliance upon Regulation S under the Issuers and the Initial Purchaser a letter containing certain representations and agreements in the form attached as Annex A to the Offering CircularSecurities Act.
(c) No form of general solicitation or general advertising in violation (within the meaning of Regulation D under the Act Securities Act) has been or will be used by such Initial Purchaser or any of its representatives in connection with the offer and sale of any of the UnitsAdditional Notes, including, but not limited to, articles, notices or other communications published in any newspaper, magazine, or similar medium or broadcast over television or radio, or any seminar or meeting whose attendees have been invited by any general solicitation or general advertising.
(d) In Such Initial Purchaser agrees that, in connection with the Exempt Resales, it will solicit offers to buy the Units Additional Notes only from, and will offer and to sell the Units Additional Notes only to, Eligible Purchasers. Such Initial Purchasers who, in purchasing such Units, will be deemed to have represented and agreed Purchaser further (i) if such agrees that it will offer to sell the Additional Notes only to, and will solicit offers to buy the Additional Notes only from (A) Eligible Purchasers that the Initial Purchasers Purchaser reasonably believes are QIBs, that they are purchasing the Units for their own accounts or accounts with respect to which they exercise sole investment discretion and that they or such accounts are QIBs(B) Reg S Investors, (ii) acknowledges and agrees that, in the case of such QIBs and such Reg S Investors, that the Units, the Series A such Additional Notes and the Convertible Preferred Membership Interests will not have been registered under the Securities Act and may be resold, pledged or otherwise transferred, prior to the date that is two years (or such other period that may hereafter be provided under Rule 144(k) as permitting resales of restricted securities by non-affiliates without restriction) after the later of the original issue date of the Units and the last date on which any of the Issuers or any of their respective affiliates was the owner of the Units, the Series A Notes and the Convertible Preferred Membership Interests transferred only (AA)(1) to the Issuers, (B) pursuant to a registration statement which has been declared effective under the Act, (C) for so long as the Units, the Series A Notes and the Convertible Preferred Membership Interests are eligible for resale pursuant to Rule 144A under the Act, to a person who whom the seller reasonably believes is a QIB that purchases purchasing for its own account or for the account of a QIB to whom notice for which such person is given that acting as a fiduciary or agent, in a transaction meeting the transfer is being made in reliance on requirements of Rule 144A, (D2) to in an institutional "accredited investor" within offshore transaction (as defined in Rule 902 under the meaning Securities Act) meeting the requirements of subparagraph (a)( 1), (2)Rule 904 under the Securities Act, (3) in a transaction meeting the requirements of Rule 144, or (74) of Rule 501 under the Act that is acquiring the Units for its own account or the account of such an institutional "accredited investor," for investment purposes and not in accordance with a view to, or for offer or sale in connection with, any distribution in violation of the Act or (E) pursuant to another available exemption from the registration requirements of the ActSecurities Act (and based upon an opinion of counsel, if the Company and the Guarantors so request), (B) to Parent or any Subsidiary or (C) pursuant to an effective registration statement under the Securities Act and, in each case, in accordance with any applicable securities laws of any state of the United States or any other applicable jurisdiction and (iii) acknowledges that the holder it will, and each subsequent holder is required to, notify any purchaser from it of the security evidenced thereby of the resale restrictions set forth in (ii) above.
(e) It Such Initial Purchaser and its affiliates or any person acting on its or their behalf has all requisite power not engaged or will not engage in any directed selling efforts within the meaning of Regulation S with respect to the Additional Notes or the Guarantees thereof.
(f) The Additional Notes offered and authority sold by such Initial Purchaser pursuant hereto in reliance on Regulation S have been and will be offered and sold only in offshore transactions.
(g) The sale of Additional Notes offered and sold by such Initial Purchaser pursuant hereto in reliance on Regulation S is not part of a plan or scheme to enter intoevade the registration provisions of the Securities Act.
(h) Such Initial Purchaser has not distributed nor, deliver prior to the later to occur of (i) the Closing Date and perform its obligations under this Agreement (ii) completion of the distribution of the Additional Notes, will distribute any material in connection with the offering and sale of the Additional Notes other than the (w) Disclosure Package, (x) the Offering Memorandum, (y) one or more term sheets relating to the Securities containing customary information and conveyed to purchasers of securities or (z) other material, if any, not prohibited by the Securities Act and the Registration Rights Agreement FSMA (or regulations promulgated under the Securities Act or the FMSA), which material shall have been reviewed an approved by the Company.
(i) Such Initial Purchaser agrees that it has not offered or sold and will not offer or sell the Additional Notes in the United States or to, or for the benefit or account of, a U.S. Person (other than a distributor), in each case, as defined in Rule 902 under the Securities Act (i) as part of this Agreement its distribution at any time and (ii) otherwise until 40 days after the later of the commencement of the offering of the Additional Notes pursuant hereto and the Registration Rights Agreement has Closing Date, other than in accordance with Regulation S of the Securities Act or another exemption from the registration requirements of the Securities Act. Such Initial Purchaser agrees that, during such 40-day distribution compliance period, it will not cause any advertisement with respect to the Additional Notes (including any “tombstone” advertisement) to be published in any newspaper or periodical or posted in any public place and will not issue any circular relating to the Additional Notes, except such advertisements as permitted by and include the statements required by Regulation S.
(j) Such Initial Purchaser agrees that, at or prior to confirmation of a sale of Additional Notes by it to any distributor, dealer or person receiving a selling concession, fee or other remuneration during the 40-day distribution compliance period referred to in Rule 903(c)(3) under the Securities Act, it will send to such distributor, dealer or person receiving a selling concession, fee or other remuneration a confirmation or notice to substantially the following effect: “The Additional Notes covered hereby have not been duly authorized registered under the U.S. Securities Act of 1933, as amended (the “Securities Act”), and may not be offered and sold within the United States or to, or for the account or benefit of, U.S. persons (i) as part of your distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the Offering and the Closing Date, except in either case in accordance with Regulation S under the Securities Act (or Rule 144A or to Accredited Institutions in transactions that are exempt from the registration requirements of the Securities Act), and in connection with any subsequent sale by ityou of the Additional Notes covered hereby in reliance on Regulation S during the period referred to above to any distributor, dealer or person receiving a selling concession, fee or other remuneration, you must deliver a notice to substantially the foregoing effect. Terms used above have the meanings assigned to them in Regulation S.”
(k) Such Initial Purchaser agrees that the Additional Notes offered and sold in reliance on Regulation S will be represented upon issuance by a global security that may not be exchanged for definitive securities until the expiration of the 40-day distribution compliance period referred to in Rule 903(c)(3) of the Securities Act and only upon certification of beneficial ownership of such Additional Notes by non-U.S. persons or U.S. persons who purchased such Additional Notes in transactions that were exempt from the registration requirements of the Securities Act. The Initial Purchaser acknowledges that the Company and the Guarantors and, for purposes of the opinions to be delivered to the Initial Purchaser pursuant to Section 10 hereof, counsel for the Company and the Guarantors and counsel for the Initial Purchaser will rely upon the accuracy and truth of the foregoing representations and hereby consent to such reliance.
Appears in 1 contract
