Representations, Warranties and Agreements of the Purchaser. (a) The Purchaser, without conceding that any Mortgage Loans are securities, hereby makes the following representations, warranties and agreements, which shall have been deemed to have been made as of the respective Closing Date: (i) The Purchaser is acquiring the Mortgage Loans for its own account only and not for any other Person. (ii) The Purchaser considers itself a substantial, sophisticated institutional investor having such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of investment in the Mortgage Loans. (iii) The Purchaser has been furnished with all information regarding the Mortgage Loans which it has requested. (iv) Neither the Purchaser nor anyone acting on its behalf has offered, transferred, pledged, sold or otherwise disposed of any Mortgage Loan, any interest in any Mortgage Loan or any other similar security to, or solicited any offer to buy or accept a transfer, pledge or other disposition of any Mortgage Loan, any interest in any Mortgage Loan or any other similar security from, or otherwise approached or negotiated with respect to any Mortgage Loan, any interest in any Mortgage Loan or any other similar security with, any person in any manner, or made any general solicitation by means of general advertising or in any other manner, or taken any other action that would constitute a distribution of the Mortgage Loans under the Securities Act of 1933, as amended (the "Securities Act"), or that would render the disposition of any Mortgage Loan a violation of Section 5 of the Securities Act or require registration pursuant thereto, nor will it act, nor has it authorized or will it authorize any person to act, in such manner with respect to the Mortgage Loans. (b) The Purchaser represents and warrants to the Seller that as of the date hereof, as of the date of each respective Purchase Price and Terms Letter and as of each respective Closing Date (or as of such other date or dates as may be expressly set forth below): (i) The Purchaser is duly organized, validly existing and in good standing as a corporation under the laws of the Maryland. The Purchaser has full power and authority (corporate and otherwise) to enter into and perform its obligations under the Program Documents. (ii) This Agreement, the Master Servicing Agreement and the Custodial Letter Agreement each has been duly authorized, executed and delivered by the Purchaser, and each constitutes the legal, valid and binding agreement of the Purchaser, enforceable against the Purchaser in accordance with its terms. (iii) As of the date the respective Purchase Price and Terms Letter and as of the respective Closing Date, the Purchase Price and Terms Letter has been duly authorized, executed and delivered by the Purchaser, and the Purchase Price and Terms Letter constitutes the legal, valid and binding agreement of the Purchaser, enforceable against the Purchaser in accordance with its terms. (iv) Neither the delivery of the Purchase Price to the Seller, nor the purchase of the Mortgage Loans by the Purchaser, nor the execution or delivery of the Program Documents, nor the consummation of any of the Transactions herein or therein contemplated, nor the fulfillment of the terms hereof or thereof, will result in the breach of any term or provision of the charter or by-laws of the Purchaser, or conflict with, result in a breach, violation or acceleration of or constitute a default under a material term of any indenture or other agreement or instrument to which the Purchaser is a party or by which the Purchaser is bound, or any statute, order or regulation of any court, regulatory body, administrative agency, governmental body or arbitrator. (v) There are no actions, proceedings or investigations pending or, to the Purchaser's knowledge, threatened against the Purchaser that, either in any one instance or in the aggregate, could draw into question the validity of any of the Program Documents or prevent the consummation of any of the Transactions. (vi) No consent, approval, authorization or order of any court, regulatory body, administrative agency, governmental body or arbitrator is required for the execution or delivery by the Purchaser of any of the Program Documents, the performance by the Purchaser of its obligations hereunder or the consummation by the Purchaser of any of the Transactions. (vii) The Purchaser has not dealt with any broker, investment banker, agent or other Person, except the Seller, who may be entitled to any commission or compensation in connection with the purchase of the Mortgage Loans.
Appears in 5 contracts
Samples: Master Mortgage Loan Purchase Agreement (Merrill Lynch Mort Investors Inc Trust Series MLCC 2003-D), Master Mortgage Loan Purchase Agreement (Merrill Lynch Mortgage Investors Trust Series MLCC 2003-G), Master Mortgage Loan Purchase Agreement (Merrill Lynch Mortgage Investors Inc)
Representations, Warranties and Agreements of the Purchaser. (a) The Purchaser, without conceding that any Mortgage Loans are securities, hereby makes the following representations, warranties and agreements, which shall have been deemed to have been made as of the respective Closing Date:
(i) The Purchaser is acquiring the Mortgage Loans for its own account only and not for any other Person.
(ii) The Purchaser considers itself a substantial, sophisticated institutional investor having such has sufficient knowledge and experience in financial and business matters that it is capable matters, including purchase and ownership of evaluating obligations of a nature similar to the Bonds to be able to evaluate the risks and merits and risks of investment in the Mortgage Loans.
(iii) The Purchaser has been furnished with all information regarding the Mortgage Loans which it has requested.
(iv) Neither the Purchaser nor anyone acting on its behalf has offered, transferred, pledged, sold or otherwise disposed of any Mortgage Loan, any interest in any Mortgage Loan or any other similar security to, or solicited any offer to buy or accept a transfer, pledge or other disposition of any Mortgage Loan, any interest in any Mortgage Loan or any other similar security from, or otherwise approached or negotiated with respect to any Mortgage Loan, any interest in any Mortgage Loan or any other similar security with, any person in any manner, or made any general solicitation by means of general advertising or in any other manner, or taken any other action that would constitute a distribution of the Mortgage Loans under investment represented by the Securities Act of 1933, as amended (the "Securities Act"), or that would render the disposition of any Mortgage Loan a violation of Section 5 purchase of the Securities Act or require registration pursuant thereto, nor will it act, nor has it authorized or will it authorize any person to act, in such manner with respect to the Mortgage Loans.Bonds;
(b) The Purchaser represents acknowledges that no offering document, prospectus or official statement has been prepared by or on behalf of the Issuer in connection with the sale of the Bonds;
(c) As a sophisticated investor, the Purchaser has made its own credit inquiry and warrants analysis with respect to the Seller Issuer and the Bonds and has made an independent credit decision based upon such inquiry and analysis. The Issuer has furnished to the Purchaser all the information which the Purchaser, as a reasonable investor, has requested of the Issuer as a result of the Purchaser having attached significance thereto in making its investment decision with respect to the Bonds, and the Purchaser has had the opportunity to ask questions of and receive answers from knowledgeable Issuer officials and other individuals concerning the Issuer and the Bonds. The Purchaser represents that it has received all information it considers material to making its investment decisions with respect to the Bonds and has made such decisions upon its own credit inquiry and analyses. The Purchaser is able and willing to bear the economic risk of the purchase and ownership of the Bonds;
(d) The Purchaser understands that the Bonds have not been registered with any federal or state securities agency or commission;
(e) The Purchaser is acquiring the Bonds for its own account, and not with a present view to, or for present sale in connection with, any distribution of the Bonds or any part thereof; provided, however, that the Purchaser retains the right to sell the Bonds in the future in accordance with the terms of the Trust Agreement;
(f) The Purchaser represents that its purchase of the Bonds and its subsequent sale, if any, are exempt from SEC Rule 15c2-12;
(g) The Purchaser acknowledges and agrees that the Issuer has not offered and has no obligation or responsibility to provide any disclosure or other information relating to the Bonds or the Issuer after issuance of the Bonds, whether in connection with any sale of the Bonds by the Purchaser or otherwise;
(h) The Purchaser represents that it has all necessary power and authority to enter into this Purchase Agreement and to purchase the Bonds as contemplated herein and in the Trust Agreement and has satisfied all legal, statutory, investment policy and any other conditions precedent to entering into this Purchase Agreement or purchasing the Bonds, and that the terms of the sale of the Bonds were negotiated at arm’s length, and the interest rates, terms and security of the Bonds are reasonable market interest rates, terms and security, comparable to other similar obligations;
(i) This Purchase Agreement constitutes a legal, valid and binding obligation of the Purchaser enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, arrangement, fraudulent conveyance, moratorium and other laws relating to or affecting the enforcement of creditor’s rights, to the application of equitable principles and to the exercise of judicial discretion in appropriate cases and to the limitations on legal remedies against public entities in the State of California; and
(j) As of the date hereof, as of there is no action, suit, proceeding or investigation before or by any California court, public board or body pending or threatened to the date of each respective Purchase Price and Terms Letter and as of each respective Closing Date (or as of such other date or dates as may be expressly set forth below):
(i) The Purchaser is duly organized, validly existing and in good standing as a corporation under the laws of the Maryland. The Purchaser has full power and authority (corporate and otherwise) to enter into and perform its obligations under the Program Documents.
(ii) This Agreement, the Master Servicing Agreement and the Custodial Letter Agreement each has been duly authorized, executed and delivered by the Purchaser, and each constitutes the legal, valid and binding agreement actual knowledge of the Purchaser, enforceable against wherein an unfavorable decision, ruling or finding would: (i) affect the Purchaser in accordance with its terms.
(iii) As of the date the respective Purchase Price and Terms Letter and as of the respective Closing Date, the Purchase Price and Terms Letter has been duly authorized, executed and delivered by the Purchaser, and the Purchase Price and Terms Letter constitutes the legal, valid and binding agreement existence or powers of the Purchaser, enforceable against the Purchaser in accordance with its terms.
(ivii) Neither the delivery of the Purchase Price to the Seller, nor enjoin or restrain the purchase of the Mortgage Loans by Bonds, (iii) in any way question or affect the Purchaser, nor the execution validity or delivery enforceability of the Program Documents, nor the consummation of any of the Transactions herein or therein contemplated, nor the fulfillment of the terms hereof or thereof, will result in the breach of any term or provision of the charter or by-laws of the Purchaserthis Purchase Agreement, or conflict with(iv) in any way question or affect the transactions contemplated by this Purchase Agreement, result in a breach, violation or acceleration of or constitute a default under a material term of any indenture or other agreement or instrument to which the Purchaser is a party or by which the Purchaser is bound, or any statute, order or regulation of any court, regulatory body, administrative agency, governmental body or arbitrator.
(v) There are no actions, proceedings or investigations pending or, relating to the Purchaser's knowledge, threatened against the Purchaser that, either in any one instance or in the aggregate, could draw into question the validity of any issuance of the Program Documents or prevent the consummation of any of the TransactionsBonds.
(vi) No consent, approval, authorization or order of any court, regulatory body, administrative agency, governmental body or arbitrator is required for the execution or delivery by the Purchaser of any of the Program Documents, the performance by the Purchaser of its obligations hereunder or the consummation by the Purchaser of any of the Transactions.
(vii) The Purchaser has not dealt with any broker, investment banker, agent or other Person, except the Seller, who may be entitled to any commission or compensation in connection with the purchase of the Mortgage Loans.
Appears in 5 contracts
Samples: Bond Purchase Agreement, Bond Purchase Agreement, Bond Purchase Agreement
Representations, Warranties and Agreements of the Purchaser. (a) The Purchaser, without conceding that severally and not jointly with any Mortgage Loans are securitiesother Purchaser, hereby makes represents and warrants to, and agrees with, the following representations, warranties and agreements, which shall have been deemed to have been made as of Company the respective Closing Datefollowing:
(i) a. The Purchaser is acquiring has the Mortgage Loans for its own account only and not for any other Person.
(ii) The Purchaser considers itself a substantial, sophisticated institutional investor having such knowledge and experience in financial and business matters that it is capable of evaluating necessary to evaluate the merits and risks of its prospective investment in the Mortgage LoansCompany, and has carefully reviewed and understands the risks of, and other considerations relating to, the purchase of Shares and the tax consequences of the investment, and has the ability to bear the economic risks of the investment. The Purchaser can afford the loss of their entire investment.
(iii) b. The Purchaser has been furnished is acquiring the Shares for investment for its own account and not with all information regarding the Mortgage Loans which it has requested.
(iv) Neither the Purchaser nor anyone acting on its behalf has offered, transferred, pledged, sold or otherwise disposed of any Mortgage Loan, any interest in any Mortgage Loan or any other similar security view to, or solicited any offer to buy or accept a transfer, pledge or other disposition of any Mortgage Loanfor resale in connection with, any interest in any Mortgage Loan distribution thereof. The Purchaser understands and acknowledges that the Shares have not been registered under the Securities Act or any state securities laws, by reason of a specific exemption from the registration provisions of the Securities Act and applicable state securities laws, which depends upon, among other similar security fromthings, the bona fide nature of the investment intent as expressed herein. The Purchaser further represents that it does not have any contract, undertaking, agreement or otherwise approached arrangement with any person to sell, transfer or negotiated grant participation to any third person with respect to any Mortgage Loan, any interest in any Mortgage Loan or any other similar security with, any person in any manner, or made any general solicitation by means of general advertising or in any other manner, or taken any other action that would constitute a distribution of the Mortgage Loans Shares. The Purchaser understands and acknowledges that the offering of the Shares pursuant to this Agreement will not be registered under the Securities Act nor under the state securities laws on the ground that the sale provided for in this Agreement and the issuance of 1933, as amended (securities hereunder is exempt from the "Securities Act"), or that would render the disposition of any Mortgage Loan a violation of Section 5 registration requirements of the Securities Act or require registration pursuant theretoand any applicable state securities laws.
c. The Purchaser is an “accredited investor” as defined in Rule 501 of Regulation D as promulgated by the SEC under the Securities Act, nor will it actfor the reason(s) specified on the Accredited Investor Certification attached hereto as completed by Purchaser, nor has it authorized or will it authorize any person to act, in such manner with respect and Purchaser shall submit to the Mortgage Loans.
(b) The Purchaser represents and warrants to the Seller that as of the date hereof, as of the date of each respective Purchase Price and Terms Letter and as of each respective Closing Date (or as Company such further assurances of such other date or dates status as may be expressly reasonably requested by the Company. The Purchaser resides in the jurisdiction set forth below):on the Purchaser’s Omnibus Signature Page affixed hereto.
d. The Purchaser (i) The Purchaser if a natural person, represents that he or she is the greater of (A) 21 years of age or (B) the age of legal majority in his or her jurisdiction of residence, and has full power and authority to execute and deliver this Agreement and all other related agreements or certificates and to carry out the provisions hereof and thereof; (ii) if a corporation, partnership, or limited liability company or partnership, or association, joint stock company, trust, unincorporated organization or other entity, represents that such entity was not formed for the specific purpose of acquiring the Shares, such entity is duly organized, validly existing and in good standing as a corporation under the laws of the Maryland. The Purchaser state or jurisdiction of its organization, the consummation of the transactions contemplated hereby is authorized by, and will not result in a violation of state law or its charter or other organizational documents, such entity has full power and authority (corporate to execute and otherwise) deliver this Agreement and all other related agreements or certificates and to enter into carry out the provisions hereof and perform its obligations under thereof and to purchase and hold the Program Documents.
(ii) This AgreementShares, the Master Servicing execution and delivery of this Agreement and the Custodial Letter Agreement each has been duly authorizedauthorized by all necessary action, this Agreement has been duly executed and delivered by the Purchaser, on behalf of such entity and each constitutes the is a legal, valid and binding agreement obligation of the Purchaser, enforceable against the Purchaser in accordance with its terms.
such entity; or (iii) As if executing this Agreement in a representative or fiduciary capacity, represents that it has full power and authority to execute and deliver this Agreement in such capacity and on behalf of the date subscribing individual, xxxx, partnership, trust, estate, corporation, or limited liability company or partnership, or other entity for whom the respective Purchase Price and Terms Letter and as of the respective Closing Date, the Purchase Price and Terms Letter has been duly authorized, executed and delivered by the PurchaserPurchaser is executing this Agreement, and such individual, partnership, xxxx, trust, estate, corporation, or limited liability company or partnership, or other entity has full right and power to perform pursuant to this Agreement and make an investment in the Purchase Price Company, and Terms Letter represents that this Agreement constitutes the a legal, valid and binding agreement obligation of the Purchaser, enforceable against the Purchaser in accordance with its terms.
(iv) Neither the such entity. The execution and delivery of the Purchase Price to the Sellerthis Agreement will not violate or be in conflict with any order, nor the purchase of the Mortgage Loans by the Purchaserjudgment, nor the execution or delivery of the Program Documentsinjunction, nor the consummation of any of the Transactions herein or therein contemplated, nor the fulfillment of the terms hereof or thereof, will result in the breach of any term or provision of the charter or by-laws of the Purchaser, or conflict with, result in a breach, violation or acceleration of or constitute a default under a material term of any indenture or other agreement or instrument controlling document to which the Purchaser is a party or by which it is bound.
e. The Purchaser understands that the Shares are being offered and sold to it in reliance on specific exemptions from the registration requirements of United States federal and state securities laws and that the Company is relying in part upon the truth and accuracy of, and such Purchaser’s compliance with, the representations, warranties, agreements, acknowledgments and understandings of such Purchaser set forth herein in order to determine the availability of such exemptions and the eligibility of such Purchaser to acquire such securities. The Purchaser further acknowledges and understands that the Company is relying on the representations and warranties made by the Purchaser hereunder and that such representations and warranties are a material inducement to the Company to sell the Shares to the Purchaser. The Purchaser further acknowledges that without such representations and warranties of the Purchaser made hereunder, the Company would not enter into this Agreement with the Purchaser.
f. The Purchaser understands that no public market exists for the Company’s Common Stock and that there can be no assurance that any public market for the Common Stock will exist or continue to exist.
g. The Purchaser has received and reviewed information about the Company, including all Disclosure Materials, and has had an opportunity to discuss the Company’s business, management and financial affairs with the Company’s management. The Purchaser understands that such discussions, as well as any Disclosure Materials provided by the Company, were intended to describe the aspects of the Company’s business and prospects which the Company believes to be material, but were not necessarily a thorough or exhaustive description, and except as expressly set forth in this Agreement, the Company makes no representation or warranty with respect to the completeness of such information and makes no representation or warranty of any kind with respect to any information provided by any entity other than the Company. Some of such information may include projections as to the future performance of the Company, which projections may not be realized, may be based on assumptions which may not be correct and may be subject to numerous factors beyond the Company’s control. Additionally, the Purchaser understands and represents that it is purchasing the Shares notwithstanding the fact that the Company may disclose in the future certain material information the Purchaser has not received, including (without limitation) financial statements of the Company and/or Miramar for the current or prior fiscal periods, and any subsequent period financial statements that will be filed with the SEC, that it is not relying on any such information in connection with its purchase of the Shares and that it waives any right of action with respect to the nondisclosure to it prior to its purchase of the Shares of any such information. Each Purchaser has sought such accounting, legal and tax advice as it has considered necessary to make an informed investment decision with respect to its acquisition of the Shares.
h. The Purchaser acknowledges that none of the Company or the Placement Agents is acting as a financial advisor or fiduciary of the Purchaser (or in any similar capacity) with respect to the Transaction Documents and the transactions contemplated hereby and thereby, and no investment advice has been given by the Company, the Placement Agents or any of their respective representatives or agents in connection with the Transaction Documents and the transactions contemplated hereby and thereby. The Purchaser further represents to the Company that the Purchaser’s decision to enter into the Transaction Documents has been based solely on the independent evaluation by the Purchaser and its representatives.
i. As of the Closing, all actions on the part of Purchaser, and its officers, directors and partners, if applicable, necessary for the authorization, execution and delivery of this Agreement and the Registration Rights Agreement and the performance of all obligations of the Purchaser hereunder and thereunder shall have been taken, and this Agreement and the Registration Rights Agreement, assuming due execution by the parties hereto and thereto, constitute valid and legally binding obligations of the Purchaser, enforceable in accordance with their respective terms, subject to: (i) judicial principles limiting the availability of specific performance, injunctive relief, and other equitable remedies and (ii) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect generally relating to or affecting creditors’ rights.
j. Purchaser represents that neither it nor, to its knowledge, any person or entity controlling, controlled by or under common control with it, nor any person having a beneficial interest in it, nor any person on whose behalf the Purchaser is boundacting: (i) is a person listed in the Annex to Executive Order No. 13224 (2001) issued by the President of the United States (Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or any statute, order Support Terrorism); (ii) is named on the List of Specially Designated Nationals and Blocked Persons maintained by the U.S. Office of Foreign Assets Control; (iii) is a non-U.S. shell bank or regulation is providing banking services indirectly to a non-U.S. shell bank; (iv) is a senior non-U.S. political figure or an immediate family member or close associate of any court, regulatory body, administrative agency, governmental body such figure; or arbitrator.
(v) There are no actionsis otherwise prohibited from investing in the Company pursuant to applicable U.S. anti-money laundering, proceedings anti-terrorist and asset control laws, regulations, rules or investigations pending ororders (categories (i) through (v), each a “Prohibited Purchaser”). The Purchaser agrees to provide the Company, promptly upon request, all information that the Company reasonably deems necessary or appropriate to comply with applicable U.S. anti-money laundering, anti-terrorist and asset 13 control laws, regulations, rules and orders. The Purchaser consents to the Purchaser's knowledgedisclosure to U.S. regulators and law enforcement authorities by the Company and its Affiliates and agents of such information about the Purchaser as the Company reasonably deems necessary or appropriate to comply with applicable U.S. antimony laundering, threatened anti-terrorist and asset control laws, regulations, rules and orders. If the Purchaser is a financial institution that is subject to the USA Patriot Act, the Purchaser represents that it has met all of its obligations under the USA Patriot Act. The Purchaser acknowledges that if, following its investment in the Company, the Company reasonably believes that the Purchaser is a Prohibited Purchaser or is otherwise engaged in suspicious activity or refuses to promptly provide information that the Company requests, the Company has the right or may be obligated to prohibit additional investments, segregate the assets constituting the investment in accordance with applicable regulations or immediately require the Purchaser to transfer the Shares. The Purchaser further acknowledges that the Purchaser will have no claim against the Purchaser that, either in Company or any one instance of its Affiliates or in the aggregate, could draw into question the validity agents for any form of damages as a result of any of the Program Documents foregoing actions. If the Purchaser is Affiliated with a non-U.S. banking institution (a “Foreign Bank”), or prevent if the consummation of Purchaser receives deposits from, makes payments on behalf of, or handles other financial transactions related to a Foreign Bank, the Purchaser represents and warrants to the Company that: (1) the Foreign Bank has a fixed address, other than solely an electronic address, in a country in which the Foreign Bank is authorized to conduct banking activities; (2) the Foreign Bank maintains operating records related to its banking activities; (3) the Foreign Bank is subject to inspection by the banking authority that licensed the Foreign Bank to conduct banking activities; and (4) the Foreign Bank does not provide banking services to any other Foreign Bank that does not have a physical presence in any country and that is not a regulated Affiliate.
k. The Purchaser or its duly authorized representative realizes that because of the Transactionsinherently speculative nature of businesses of the kind conducted and contemplated by the Company, the Company’s financial results may be expected to fluctuate from month to month and from period to period and will, generally, involve a high degree of financial and market risk that could result in substantial or, at times, even total losses for investors in securities of the Company.
(vi) No consent, approval, authorization or order of any court, regulatory body, administrative agency, governmental body or arbitrator is required for the execution or delivery by the Purchaser of any of the Program Documents, the performance by the Purchaser of its obligations hereunder or the consummation by the Purchaser of any of the Transactions.
(vii) l. The Purchaser has adequate means of providing for its current and anticipated financial needs and contingencies, is able to bear the economic risk for an indefinite period of time and has no need for liquidity of the investment in the Shares and could afford complete loss of such investment.
m. The Purchaser is not dealt with subscribing for Shares as a result of or subsequent to any brokeradvertisement, investment bankerarticle, agent notice or other Personcommunication, except published in any newspaper, magazine or similar media or broadcast over television, radio, or the Sellerinternet, who may be entitled or presented at any seminar or meeting, or any solicitation of a subscription by a person not previously known to any commission or compensation the Purchaser in connection with investments in securities generally.
n. The Purchaser acknowledges that no U.S. federal or state agency or any other government or governmental agency has passed upon the purchase Shares or made any finding or determination as to the fairness, suitability or wisdom of any investments therein.
o. The Purchaser agrees to be bound by all of the Mortgage Loansterms and conditions of the Registration Rights Agreement and to perform all obligations thereby imposed upon it.
p. All of the information that the Purchaser has heretofore furnished or which is set forth herein is true, correct and complete as of the date of this Agreement, and, if there should be any material change in such information prior to the admission of the undersigned to the Company, the Purchaser will immediately furnish revised or corrected information to the Company.
q. (For ERISA plans only) The fiduciary of the Employee Retirement Income Security Act of 1974 (“ERISA”) plan (the “Plan”) represents that such fiduciary has been informed of and understands the Company’s investment objectives, policies and strategies, and that the decision to invest “plan assets” (as such term is defined in ERISA) in the Company is consistent with the provisions of ERISA that require diversification of plan assets and impose other fiduciary responsibilities. The Purchaser fiduciary or Plan (a) is responsible for the decision to invest in the Company; (b) is independent of the Company or any of its Affiliates; (c) is qualified to make such investment decision; and (d) in making such decision, the Purchaser fiduciary or Plan has not relied primarily on any advice or recommendation of the Company or any of its Affiliates.
Appears in 2 contracts
Samples: Subscription Agreement (Miramar Labs, Inc.), Subscription Agreement (Miramar Labs, Inc.)
Representations, Warranties and Agreements of the Purchaser. The Purchaser represents and warrants to, and agrees with, the Company, as of the Closing, the following:
(a) The Purchaser, without conceding that any Mortgage Loans are securities, hereby makes Purchaser has the following representations, warranties and agreements, which shall have been deemed to have been made as of the respective Closing Date:
(i) The Purchaser is acquiring the Mortgage Loans for its own account only and not for any other Person.
(ii) The Purchaser considers itself a substantial, sophisticated institutional investor having such knowledge and experience in financial and business matters that it is capable of evaluating necessary to evaluate the merits and risks of its prospective investment in the Mortgage Loans.
(iii) Company, and has carefully reviewed and understands the risks of, and other considerations relating to, the purchase of the Securities and the tax consequences of the investment. The Purchaser has been furnished with all information regarding the Mortgage Loans which it has requested.
(iv) Neither the Purchaser nor anyone acting on its behalf has offered, transferred, pledged, sold or otherwise disposed of any Mortgage Loan, any interest in any Mortgage Loan or any other similar security to, or solicited any offer to buy or accept a transfer, pledge or other disposition of any Mortgage Loan, any interest in any Mortgage Loan or any other similar security from, or otherwise approached or negotiated with respect to any Mortgage Loan, any interest in any Mortgage Loan or any other similar security with, any person in any manner, or made any general solicitation by adequate means of general advertising or in any other mannerproviding for its current and anticipated financial needs and contingencies, or taken any other action that would constitute a distribution and is able to bear the economic risks of the Mortgage Loans under the Securities Act investment for an indefinite period of 1933, as amended (the "Securities Act"), or that would render the disposition of any Mortgage Loan a violation of Section 5 time and has no need for liquidity of the Securities Act or require registration pursuant thereto, nor will it act, nor has it authorized or will it authorize any person to act, investment in such manner with respect to the Mortgage LoansSecurities. The Purchaser can afford the loss of its entire investment.
(b) The Purchaser is acquiring the Securities for investment for its own account and not with the view to, or for resale in connection with, any distribution thereof. The Purchaser understands and acknowledges that the offering and sale of the Securities have not been registered under the Securities Act or any state securities laws, by reason of a specific exemption from the registration provisions of the Securities Act and applicable state securities laws, which depends upon, among other things, the bona fide nature of the investment intent as expressed herein. The Purchaser further represents that it does not have any contract, undertaking, agreement or arrangement with any person to sell, transfer or grant participation to any third person with respect to any of the Securities, other than with respect to an Affiliate of the Purchaser. The Purchaser is an “accredited investor” as defined in Rule 501 of Regulation D as promulgated by the SEC under the Securities Act, and warrants the Purchaser shall submit to the Seller that as of the date hereof, as of the date of each respective Purchase Price and Terms Letter and as of each respective Closing Date (or as Company such further assurances of such other date or dates status as may be expressly reasonably requested by the Company. The Purchaser has not taken any of the actions set forth below):in, and is not subject to, the disqualification provisions of Rule 506(d)(1) of the Securities Act.
(c) The Purchaser represents that (i) The Purchaser it was not formed for the specific purpose of acquiring the Securities, (ii) it is duly organized, validly existing and in good standing as a corporation under the laws of the Maryland. The Purchaser jurisdiction of its organization, (iii) the consummation of the transactions contemplated hereby is authorized by, and will not result in a violation of applicable law or its charter or other organizational documents, (iv) it has full power and authority to execute and deliver each Transaction Document and to carry out the provisions thereof and to purchase and hold the Securities, (corporate v) the execution and otherwise) to enter into and perform its obligations under delivery of each Transaction Document by the Program Documents.
(ii) This Agreement, the Master Servicing Agreement and the Custodial Letter Agreement each Purchaser has been duly authorizedauthorized by all necessary action, and (vi) each Transaction Document has been duly executed and delivered by on behalf of the Purchaser, Purchaser and each constitutes the is a legal, valid and binding agreement obligation of the Purchaser, enforceable against . The execution and delivery of each Transaction Document by the Purchaser in accordance with its terms.
(iii) As of the date the respective Purchase Price and Terms Letter and as of the respective Closing Date, the Purchase Price and Terms Letter has been duly authorized, executed and delivered by the Purchaser, and the Purchase Price and Terms Letter constitutes the legal, valid and binding agreement of the Purchaser, enforceable against the Purchaser in accordance with its terms.
(iv) Neither the delivery of the Purchase Price to the Seller, nor the purchase of the Mortgage Loans by the Purchaser, nor the execution or delivery of the Program Documents, nor the consummation of any of the Transactions herein or therein contemplated, nor the fulfillment of the terms hereof or thereof, will result in the breach of any term or provision of the charter or by-laws of the Purchaser, does not violate or conflict withwith any order, result in a breachjudgment, violation or acceleration of or constitute a default under a material term of any indenture or other injunction, agreement or instrument controlling document to which the Purchaser is a party or by which it is bound.
(d) The Purchaser understands that the Securities are being offered and sold to it in reliance on specific exemptions from the registration requirements of United States federal and state securities laws and that the Company is relying in part upon the truth and accuracy of, and the Purchaser’s compliance with, the representations, warranties, agreements, acknowledgments and understandings of the Purchaser set forth herein in order to determine the availability of such exemptions and the eligibility of the Purchaser to acquire such securities. The Purchaser further acknowledges and understands that the Company is relying on the representations and warranties made by the Purchaser hereunder and that such representations and warranties are a material inducement to the Company to sell the Securities to the Purchaser. The Purchaser further acknowledges that without such representations and warranties of the Purchaser made hereunder, the Company would not enter into the Transaction Documents with the Purchaser.
(e) The Purchaser understands that, other than as provided in the Registration Rights Agreement, the Company does not currently intend to register the Securities under the Securities Act at any time in the future; and the undersigned will not immediately be entitled to the benefits of Rule 144 with respect to the Securities. The Purchaser understands that there can be no assurance that any public market for the Common Stock will exist or continue to exist. The Company makes no representation or warranty with respect to the continued quotation of the Common Stock on the OTC Markets QX tier or listing on any other market or exchange.
(f) The Purchaser has received, reviewed and understood the information about the Company provided to it by the Company and has had an opportunity to discuss the Company’s business, management and financial affairs with the Company’s management. The Purchaser understands that such discussions, as well as any information provided by the Company, were intended to describe the aspects of the Company’s business and prospects which the Company believes to be material, but were not necessarily a thorough or exhaustive description, and except as expressly set forth in this Agreement, the Company makes no representation or warranty with respect to the completeness of such information and makes no representation or warranty of any kind with respect to any information provided by anyone other than the Company. Some of such information may include projections as to the future performance of the Company, which projections may not be realized, may be based on assumptions which may not be correct and may be subject to numerous factors beyond the Company’s control. The Purchaser acknowledges that it is not relying upon any person or entity, other than the Company and its officers and directors, in making its investment or decision to invest in the Company. Additionally, the Purchaser understands and represents that he, she or it is purchasing the Securities notwithstanding the fact that the Company may disclose in the future certain material information the Purchaser has not received, including financial statements of the Company for the current or prior fiscal periods, and any subsequent period financial statements that will be filed with the SEC, that it is not relying on any such information in connection with its purchase of the Securities and that it waives any right of action with respect to the nondisclosure to it prior to its purchase of the Securities of any such information, in each case, without waiving or otherwise limiting any right or claim the Purchaser may have hereunder. The Purchaser has sought such accounting, legal and tax advice as the Purchaser has considered necessary to make an informed investment decision with respect to its acquisition of the Securities.
(g) The Purchaser acknowledges that the Company is not acting as a financial advisor or fiduciary of the Purchaser (or in any similar capacity) with respect to the Transaction Documents and the transactions contemplated thereby, and no investment advice has been given by the Company or any of its representatives or agents in connection with the Transaction Documents and the transactions contemplated thereby. The Purchaser further represents to the Company that the Purchaser’s decision to enter into each Transaction Document has been based solely on the independent evaluation by the Purchaser and the Purchaser’s representatives and the representations and warranties made by the Company in Section 2 hereof.
(h) As of the Closing, all actions on the part of Purchaser, and its officers, directors and partners, if applicable, necessary for the authorization, execution and delivery of each Transaction Document and the performance of all obligations of the Purchaser thereunder shall have been taken, and each Transaction Document, assuming due execution by the parties thereto, constitutes a valid and legally binding obligation of the Purchaser, enforceable in accordance with its terms, subject to: (i) judicial principles limiting the availability of specific performance, injunctive relief, and other equitable remedies and (ii) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect generally relating to or affecting creditors’ rights.
(i) Neither the Purchaser nor, to its knowledge, any person or entity controlled by the Purchaser: (i) is a person listed in the Annex to Executive Order No. 13224 (2001) issued by the President of the United States (Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism); (ii) is named on the List of Specially Designated Nationals and Blocked Persons maintained by the U.S. Office of Foreign Assets Control; (iii) is a non-U.S. shell bank or is providing banking services indirectly to a non-U.S. shell bank; (iv) is a senior non-U.S. political figure or an immediate family member or close associate of such figure; or (v) is otherwise prohibited from investing in the Company pursuant to applicable U.S. anti-money laundering, anti-terrorist and asset control laws, regulations, rules or orders (categories (i) through (v), each a “Prohibited Purchaser”). The Purchaser (i) agrees to provide the Company, promptly upon request, all information that the Company reasonably deems necessary or appropriate to comply with applicable U.S. anti-money laundering, anti-terrorist and asset control laws, regulations, rules and orders and (ii) consents to the disclosure to U.S. regulators and law enforcement authorities by the Company and its Affiliates and agents of such information about the Purchaser as the Company reasonably deems necessary or appropriate to comply with applicable U.S. anti-money laundering, anti-terrorist and asset control laws, regulations, rules and orders. If the Purchaser is bound, or any statute, order or regulation of any court, regulatory body, administrative agency, governmental body or arbitrator.
(v) There are no actions, proceedings or investigations pending or, a financial institution that is subject to the USA Patriot Act, the Purchaser represents that it has met all of its obligations under the USA Patriot Act. The Purchaser acknowledges that if, following its investment in the Company, the Company reasonably determines that the Purchaser is a Prohibited Purchaser's knowledge, threatened the Company has the right or may be obligated to prohibit additional investments and segregate the assets constituting the investment in accordance with applicable regulations. The Purchaser further acknowledges that neither the Purchaser nor any of the Purchaser’s Affiliates or agents will have any claim against the Purchaser that, either in Company for any one instance or in the aggregate, could draw into question the validity form of damages as a result of any of the Program Documents or prevent the consummation of any of the Transactionsforegoing actions.
(vij) No consentIf the Purchaser is an Affiliate of a non-U.S. banking institution (a “Foreign Bank”), approvalor if the Purchaser receives deposits from, authorization makes payments on behalf of, or order of any courthandles other financial transactions related to a Foreign Bank, regulatory bodythe Purchaser represents and warrants to the Company that: (1) the Foreign Bank has a fixed address, administrative agencyother than solely an electronic address, governmental body or arbitrator in a country in which the Foreign Bank is required for authorized to conduct banking activities; (2) the execution or delivery Foreign Bank maintains operating records related to its banking activities; (3) the Foreign Bank is subject to inspection by the Purchaser of banking authority that licensed the Foreign Bank to conduct banking activities; and (4) the Foreign Bank does not provide banking services to any of the Program Documents, the performance by the Purchaser of its obligations hereunder or the consummation by the Purchaser of other Foreign Bank that does not have a physical presence in any of the Transactionscountry and that is not a regulated Affiliate.
(viik) The Purchaser or its duly authorized representative realizes that because of the inherently speculative nature of businesses of the kind conducted and contemplated by the Company, the Company’s future financial results may be expected to fluctuate from month to month and from period to period and will, generally, involve a high degree of financial and market risk that could result in substantial or, at times, even total losses for investors in securities of the Company. The Purchaser has carefully read the risk factors and other information (including the financial statements of the Company) included in the SEC Reports. The Purchaser has carefully considered such risk factors before deciding to invest in the Securities.
(l) The Purchaser is not dealt with subscribing for the Securities as a result of or subsequent to any brokeradvertisement, investment bankerarticle, agent notice or other Personcommunication, except published in any newspaper, magazine or similar media or broadcast over television, radio, or the Sellerinternet, who may be entitled or presented at any seminar or meeting, or any solicitation of a subscription by a person not previously known to any commission or compensation the Purchaser in connection with investments in securities generally.
(m) The Purchaser acknowledges that no U.S. federal or state agency or any other government or governmental agency has passed upon the purchase Securities or made any finding or determination as to the fairness, suitability or wisdom of any investments therein.
(n) Other than consummating the transactions contemplated hereunder, the Purchaser has not directly or indirectly, nor has any individual or entity acting on behalf of or pursuant to any understanding with the Purchaser, executed any purchases or sales, including Short Sales (as defined below), of the Mortgage Loanssecurities of the Company during the period commencing at the time Purchaser was first contacted by the Company or any other individual or entity representing the Company regarding the transactions contemplated hereunder. Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers do not communicate or share information with, and have no direct knowledge of the investment decisions made by, the portfolio managers managing other portions of such Purchaser’s assets, the representation set forth above shall only apply with respect to the portion of assets manage by, the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement. The Purchaser has maintained the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of this transaction). Notwithstanding the foregoing, for avoidance of doubt, nothing contained herein shall constitute a representation or warranty, or preclude any actions, with respect to the identification of the availability of, or securing of, available shares to borrow in order to effect Short Sales or similar transactions in the future. For purposes of this Agreement, “Short Sales” means all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act (but shall not be deemed to include the location and/or reservation of borrowable shares of Common Stock).
Appears in 2 contracts
Samples: Securities Purchase Agreement (Transphorm, Inc.), Securities Purchase Agreement (Transphorm, Inc.)
Representations, Warranties and Agreements of the Purchaser. (a) The Purchaser, without conceding that any Mortgage Loans are securities, hereby makes the following representations, warranties and agreements, which shall have been deemed to have been made as of the respective Closing Date:
(i) The Purchaser is acquiring the Mortgage Loans for its own account only and not for any other Person.
(ii) The Purchaser considers itself a substantial, sophisticated institutional investor having such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of investment in the Mortgage Loans.
(iii) The Purchaser has been furnished with all information regarding the Mortgage Loans which it has requested.
(iv) Neither the Purchaser nor anyone acting on its behalf has offered, transferred, pledged, sold or otherwise disposed of any Mortgage Loan, any interest in any Mortgage Loan or any other similar security to, or solicited any offer to buy or accept a transfer, pledge or other disposition of any Mortgage Loan, any interest in any Mortgage Loan or any other similar security from, or otherwise approached or negotiated with respect to any Mortgage Loan, any interest in any Mortgage Loan or any other similar security with, any person in any manner, or made any general solicitation by means of general advertising or in any other manner, or taken any other action that would constitute a distribution of the Mortgage Loans under the Securities Act of 1933, as amended (the "Securities Act"), or that would render the disposition of any Mortgage Loan a violation of Section 5 of the Securities Act or require registration pursuant thereto, nor will it act, nor has it authorized or will it authorize any person to act, in such manner with respect to the Mortgage Loans.
(b) The Purchaser represents and warrants to the Seller that as of the date hereof, as of the date of each respective Purchase Price and Terms Letter and as of each respective Closing Date (or as of such other date or dates as may be expressly set forth below):
(i) The Purchaser is duly organized, validly existing and in good standing as a corporation under the laws of the Maryland. The Purchaser has full power and authority (corporate and otherwise) to enter into and perform its obligations under the Program Documents.
(ii) This Agreement, the Master Servicing Agreement Agreements and the Custodial Letter Agreement each has been duly authorized, executed and delivered by the Purchaser, and each constitutes the legal, valid and binding agreement of the Purchaser, enforceable against the Purchaser in accordance with its terms.
(iii) As of the date of the respective Purchase Price and Terms Letter and as of the respective Closing Date, the Purchase Price and Terms Letter has been duly authorized, executed and delivered by the Purchaser, and the Purchase Price and Terms Letter constitutes the legal, valid and binding agreement of the Purchaser, enforceable against the Purchaser in accordance with its terms.
(iv) Neither the delivery of the Purchase Price to the Seller, nor the purchase of the Mortgage Loans by the Purchaser, nor the execution or delivery of the Program Documents, nor the consummation of any of the Transactions herein or therein contemplated, nor the fulfillment of the terms hereof or thereof, will result in the breach of any term or provision of the charter or by-laws of the Purchaser, or conflict with, result in a breach, violation or acceleration of or constitute a default under a material term of any indenture or other agreement or instrument to which the Purchaser is a party or by which the Purchaser is bound, or any statute, order or regulation of any court, regulatory body, administrative agency, governmental body or arbitrator.
(v) There are no actions, proceedings or investigations pending or, to the Purchaser's knowledge, threatened against the Purchaser that, either in any one instance or in the aggregate, could draw into question the validity of any of the Program Documents or prevent the consummation of any of the Transactions.
(vi) No consent, approval, authorization or order of any court, regulatory body, administrative agency, governmental body or arbitrator is required for the execution or delivery by the Purchaser of any of the Program Documents, the performance by the Purchaser of its obligations hereunder or the consummation by the Purchaser of any of the Transactions.
(vii) The Purchaser has not dealt with any broker, investment banker, agent or other Person, except the Seller, who may be entitled to any commission or compensation in connection with the purchase of the Mortgage Loans.
Appears in 1 contract
Samples: Master Mortgage Loan Purchase Agreement (Merrill Lynch Mort Inv Inc Mo Pass THR Ce Se MLCC 2003f)
Representations, Warranties and Agreements of the Purchaser. (a) The Purchaser, without conceding that any Mortgage Loans are securities, hereby makes the following representations, warranties and agreements, which shall have been deemed to have been made as of the respective Closing Date:
(i) The Purchaser is acquiring the Mortgage Loans for its own account only and not for any other Person.
(ii) The Purchaser considers itself a substantial, sophisticated institutional investor having such has sufficient knowledge and experience in financial and business matters that it is capable matters, including purchase and ownership of evaluating obligations of a nature similar to the Bonds to be able to evaluate the risks and merits and risks of the investment in represented by the Mortgage Loans.
(iii) purchase of the Bonds; The Purchaser acknowledges that no offering document, prospectus or official statement has been furnished prepared by or on behalf of the Issuer in connection with all information regarding the Mortgage Loans which it has requested.
(iv) Neither sale of the Bonds; As a sophisticated investor, the Purchaser nor anyone acting on has made its behalf has offered, transferred, pledged, sold or otherwise disposed of any Mortgage Loan, any interest in any Mortgage Loan or any other similar security to, or solicited any offer to buy or accept a transfer, pledge or other disposition of any Mortgage Loan, any interest in any Mortgage Loan or any other similar security from, or otherwise approached or negotiated with respect to any Mortgage Loan, any interest in any Mortgage Loan or any other similar security with, any person in any manner, or made any general solicitation by means of general advertising or in any other manner, or taken any other action that would constitute a distribution of the Mortgage Loans under the Securities Act of 1933, as amended (the "Securities Act"), or that would render the disposition of any Mortgage Loan a violation of Section 5 of the Securities Act or require registration pursuant thereto, nor will it act, nor has it authorized or will it authorize any person to act, in such manner own credit inquiry and analysis with respect to the Mortgage Loans.
(b) Issuer and the Bonds and has made an independent credit decision based upon such inquiry and analysis. The Issuer has furnished to the Purchaser all the information which the Purchaser, as a reasonable investor, has requested of the Issuer as a result of the Purchaser having attached significance thereto in making its investment decision with respect to the Bonds, and the Purchaser has had the opportunity to ask questions of and receive answers from knowledgeable Issuer officials and other individuals concerning the Issuer and the Bonds. The Purchaser represents and warrants that it has received all information it considers material to making its investment decisions with respect to the Seller Bonds and has made such decisions upon its own credit inquiry and analyses. The Purchaser is able and willing to bear the economic risk of the purchase and ownership of the Bonds; The Purchaser understands that the Bonds have not been registered with any federal or state securities agency or commission; The Purchaser is acquiring the Bonds for its own account, and not with a present view to, or for present sale in connection with, any distribution of the Bonds or any part thereof; provided, however, that the Purchaser retains the right to sell the Bonds in the future in accordance with the terms of the Trust Agreement; The Purchaser represents that its purchase of the Bonds and its subsequent sale, if any, are exempt from SEC Rule 15c2-12; The Purchaser acknowledges and agrees that the Issuer has not offered and has no obligation or responsibility to provide any disclosure or other information relating to the Bonds or the Issuer after issuance of the Bonds, whether in connection with any sale of the Bonds by the Purchaser or otherwise; The Purchaser represents that it has all necessary power and authority to enter into this Purchase Agreement and to purchase the Bonds as contemplated herein and in the Trust Agreement and has satisfied all legal, statutory, investment policy and any other conditions precedent to entering into this Purchase Agreement or purchasing the Bonds, and that the terms of the sale of the Bonds were negotiated at arm’s length, and the interest rates, terms and security of the Bonds are reasonable market interest rates, terms and security, comparable to other similar obligations; This Purchase Agreement constitutes a legal, valid and binding obligation of the Purchaser enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, arrangement, fraudulent conveyance, moratorium and other laws relating to or affecting the enforcement of creditor’s rights, to the application of equitable principles and to the exercise of judicial discretion in appropriate cases and to the limitations on legal remedies against public entities in the State of California; and As of the date hereof, as of there is no action, suit, proceeding or investigation before or by any California court, public board or body pending or threatened to the date of each respective Purchase Price and Terms Letter and as of each respective Closing Date (or as of such other date or dates as may be expressly set forth below):
(i) The Purchaser is duly organized, validly existing and in good standing as a corporation under the laws of the Maryland. The Purchaser has full power and authority (corporate and otherwise) to enter into and perform its obligations under the Program Documents.
(ii) This Agreement, the Master Servicing Agreement and the Custodial Letter Agreement each has been duly authorized, executed and delivered by the Purchaser, and each constitutes the legal, valid and binding agreement actual knowledge of the Purchaser, enforceable against wherein an unfavorable decision, ruling or finding would: (i) affect the Purchaser in accordance with its terms.
(iii) As of the date the respective Purchase Price and Terms Letter and as of the respective Closing Date, the Purchase Price and Terms Letter has been duly authorized, executed and delivered by the Purchaser, and the Purchase Price and Terms Letter constitutes the legal, valid and binding agreement existence or powers of the Purchaser, enforceable against the Purchaser in accordance with its terms.
(ivii) Neither the delivery of the Purchase Price to the Seller, nor enjoin or restrain the purchase of the Mortgage Loans by Bonds, (iii) in any way question or affect the Purchaser, nor the execution validity or delivery enforceability of the Program Documents, nor the consummation of any of the Transactions herein or therein contemplated, nor the fulfillment of the terms hereof or thereof, will result in the breach of any term or provision of the charter or by-laws of the Purchaserthis Purchase Agreement, or conflict with(iv) in any way question or affect the transactions contemplated by this Purchase Agreement, result in a breach, violation or acceleration of or constitute a default under a material term of any indenture or other agreement or instrument to which the Purchaser is a party or by which the Purchaser is bound, or any statute, order or regulation of any court, regulatory body, administrative agency, governmental body or arbitrator.
(v) There are no actions, proceedings or investigations pending or, relating to the Purchaser's knowledge, threatened against the Purchaser that, either in any one instance or in the aggregate, could draw into question the validity of any issuance of the Program Documents or prevent the consummation of any of the TransactionsBonds.
(vi) No consent, approval, authorization or order of any court, regulatory body, administrative agency, governmental body or arbitrator is required for the execution or delivery by the Purchaser of any of the Program Documents, the performance by the Purchaser of its obligations hereunder or the consummation by the Purchaser of any of the Transactions.
(vii) The Purchaser has not dealt with any broker, investment banker, agent or other Person, except the Seller, who may be entitled to any commission or compensation in connection with the purchase of the Mortgage Loans.
Appears in 1 contract
Samples: Bond Purchase Agreement
Representations, Warranties and Agreements of the Purchaser. The Purchaser hereby represents and warrants to the Company and the Guarantors as follows (it being understood that the Purchaser does not make any representation, warranty, covenant or agreement to any other purchaser of Second Lien Notes or to the Company or the Guarantors on behalf of any other purchaser of the Second Lien Notes):
(a) The Purchaser, without conceding that any Mortgage Loans are securities, hereby makes the following representations, warranties and agreements, which shall have been deemed to have been made as of the respective Closing Date:
Purchaser (i) The Purchaser is knowledgeable, sophisticated and experienced in making, and is qualified to make, decisions with respect to investments in securities representing an investment decision like that involved in the purchase of the Second Lien Notes, and has requested, received, reviewed and considered all information it deems relevant in making an informed decision to purchase the Second Lien Notes; (ii) is acquiring the Mortgage Loans Second Lien Notes in the ordinary course of its business and for its own account for investment purposes only and not for with no present intention of distributing any of such Second Lien Notes or any arrangement or understanding with any other Person.
(ii) The Purchaser considers itself a substantial, sophisticated institutional investor having persons regarding the distribution of such knowledge Second Lien Notes; and experience in financial and business matters that it is capable of evaluating the merits and risks of investment in the Mortgage Loans.
(iii) The Purchaser has been furnished with all information regarding the Mortgage Loans which it has requested.
(iv) Neither the Purchaser nor anyone acting on its behalf has offeredwill not, transferreddirectly or indirectly, pledgedoffer, sold sell, pledge, transfer or otherwise disposed dispose of (or solicit any Mortgage Loanoffers to buy, any interest in any Mortgage Loan or any other similar security to, or solicited any offer to buy or accept a transfer, pledge or other disposition of any Mortgage Loan, any interest in any Mortgage Loan or any other similar security from, purchase or otherwise approached acquire or negotiated with respect to take a pledge of) any Mortgage Loan, any interest in any Mortgage Loan or any other similar security with, any person in any manner, or made any general solicitation by means of general advertising or in any other manner, or taken any other action that would constitute a distribution of the Mortgage Loans under Second Lien Notes except in compliance with the Securities Act of 1933, as amended (the "Securities Act"), or that would render the disposition of and any Mortgage Loan a violation of Section 5 of the Securities Act or require registration pursuant thereto, nor will it act, nor has it authorized or will it authorize any person to act, in such manner with respect to the Mortgage Loansapplicable state securities laws.
(b) The Purchaser represents is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act.
(c) The Purchaser understands and warrants to acknowledges that (i) the Seller that as Second Lien Notes are being offered in transactions not involving any public offering within the meaning of the date hereofSecurities Act; (ii) the initial offering and issuance of the Second Lien Notes has not been registered under the Securities Act or any other securities laws, (iii) if in the future it decides to resell, pledge or otherwise transfer the Second Lien Notes that it purchases hereunder, those Second Lien Notes, absent an effective registration statement under the Securities Act, may be resold, pledged or transferred only pursuant to an applicable exemption from registration under the Securities Act in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and (iv) it will, and each subsequent holder of any of the Second Lien Notes that it purchases in this offering is required to, notify any subsequent purchaser of such Second Lien Notes from it or subsequent holders, as applicable, of the date resale restrictions referred to in clause (iii) above.
(d) The Purchaser understands and acknowledges that the Company and the Guarantors are relying upon the truth and accuracy of, and the Purchaser’s compliance with, the representations, warranties, agreements, acknowledgments and understanding of each respective Purchase Price and Terms Letter and as of each respective Closing Date (or as the Purchaser set forth herein in order to determine the availability of such exemptions and the eligibility of the Purchaser to acquire the Second Lien Notes.
(e) The Purchaser understands that the Second Lien Notes will bear a restrictive legend substantially in the following form: “THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER XXXXXXX 0 XX XXX XXXXXX XXXXXX SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND THE SECURITY EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THE SECURITY EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT (A) SUCH SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (i) (a) TO A PERSON WHO IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (b) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (c) OUTSIDE THE UNITED STATES TO A NON-U.S. PERSON IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 UNDER THE SECURITIES ACT, OR (d) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL IF THE ISSUER SO REQUESTS), (ii) TO THE ISSUER, OR (iii) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE SECURITY EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN CLAUSE (A) ABOVE. NO REPRESENTATION CAN BE MADE AS TO THE AVAILABILITY OF THE EXEMPTION PROVIDED BY RULE 144 FOR RESALE OF THE SECURITY EVIDENCED HEREBY.”
(f) (i) The Purchaser has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (ii) the execution, delivery and performance of the Agreement by the Purchaser and the consummation of the transactions herein contemplated will not violate any provision of the organizational documents of the Purchaser or any statute or any authorization, judgment, decree, order, rule or regulation of any court or any regulatory body, administrative agency or other date governmental body applicable to Purchaser.
(g) The Purchaser understands that no United States federal or dates as may be expressly state agency or any other government or governmental agency has passed upon or made any recommendation or endorsement of the Second Lien Notes or the fairness or suitability of the investment in the Second Lien Notes nor have such authorities passed upon or endorsed the merits of the offering of the Second Lien Notes.
(h) The Purchaser’s principal executive offices are in the jurisdiction set forth below):under the Purchaser’s signature on the signature block hereto.
(i) The Purchaser is duly organizedacknowledges that the Company, validly existing the Guarantors and in good standing as a corporation under its counsel will rely upon the laws accuracy of the Marylandforegoing acknowledgments, representations and agreements. The Purchaser has full power and authority (corporate and otherwise) to enter into and perform its obligations under the Program Documents.
(ii) This Agreement, the Master Servicing Agreement and the Custodial Letter Agreement each has been duly authorized, executed and delivered by the Purchaser, and each constitutes the legal, valid and binding agreement agrees that if any of the Purchaseracknowledgments, enforceable against the representations or agreements that Purchaser in accordance with is deemed to have made by its terms.
(iii) As of the date the respective Purchase Price and Terms Letter and as of the respective Closing Date, the Purchase Price and Terms Letter has been duly authorized, executed and delivered by the Purchaser, and the Purchase Price and Terms Letter constitutes the legal, valid and binding agreement of the Purchaser, enforceable against the Purchaser in accordance with its terms.
(iv) Neither the delivery of the Purchase Price to the Seller, nor the purchase of the Mortgage Loans by Second Lien Notes is no longer accurate, it shall promptly notify the Purchaser, nor Company and the execution or delivery of the Program Documents, nor the consummation of any of the Transactions herein or therein contemplated, nor the fulfillment of the terms hereof or thereof, will result in the breach of any term or provision of the charter or by-laws of the Purchaser, or conflict with, result in a breach, violation or acceleration of or constitute a default under a material term of any indenture or other agreement or instrument to which Guarantors. If the Purchaser is purchasing the Second Lien Notes as a party fiduciary or by which agent for one or more investor accounts, the Purchaser is boundrepresents that it has sole investment discretion with respect to each of those accounts and full power to make the above acknowledgments, or any statute, order or regulation representations and agreements on behalf of any court, regulatory body, administrative agency, governmental body or arbitratoreach account.
(v) There are no actions, proceedings or investigations pending or, to the Purchaser's knowledge, threatened against the Purchaser that, either in any one instance or in the aggregate, could draw into question the validity of any of the Program Documents or prevent the consummation of any of the Transactions.
(vi) No consent, approval, authorization or order of any court, regulatory body, administrative agency, governmental body or arbitrator is required for the execution or delivery by the Purchaser of any of the Program Documents, the performance by the Purchaser of its obligations hereunder or the consummation by the Purchaser of any of the Transactions.
(vii) The Purchaser has not dealt with any broker, investment banker, agent or other Person, except the Seller, who may be entitled to any commission or compensation in connection with the purchase of the Mortgage Loans.
Appears in 1 contract
Representations, Warranties and Agreements of the Purchaser. The Purchaser represents and warrants to, and agrees with, the Company, as of each Closing, the following:
(a) The Purchaser, without conceding that any Mortgage Loans are securities, hereby makes Purchaser has the following representations, warranties and agreements, which shall have been deemed to have been made as of the respective Closing Date:
(i) The Purchaser is acquiring the Mortgage Loans for its own account only and not for any other Person.
(ii) The Purchaser considers itself a substantial, sophisticated institutional investor having such knowledge and experience in financial and business matters that it is capable of evaluating necessary to evaluate the merits and risks of its prospective investment in the Mortgage Loans.
(iii) Company, and has carefully reviewed and understands the risks of, and other considerations relating to, the purchase of the Securities and the tax consequences of the investment. The Purchaser has been furnished with all information regarding the Mortgage Loans which it has requested.
(iv) Neither the Purchaser nor anyone acting on its behalf has offered, transferred, pledged, sold or otherwise disposed of any Mortgage Loan, any interest in any Mortgage Loan or any other similar security to, or solicited any offer to buy or accept a transfer, pledge or other disposition of any Mortgage Loan, any interest in any Mortgage Loan or any other similar security from, or otherwise approached or negotiated with respect to any Mortgage Loan, any interest in any Mortgage Loan or any other similar security with, any person in any manner, or made any general solicitation by adequate means of general advertising or in any other mannerproviding for its current and anticipated financial needs and contingencies, or taken any other action that would constitute a distribution and is able to bear the economic risks of the Mortgage Loans under the Securities Act investment for an indefinite period of 1933, as amended (the "Securities Act"), or that would render the disposition of any Mortgage Loan a violation of Section 5 time and has no need for liquidity of the Securities Act or require registration pursuant thereto, nor will it act, nor has it authorized or will it authorize any person to act, investment in such manner with respect to the Mortgage LoansSecurities. The Purchaser can afford the loss of its entire investment.
(b) The Purchaser is acquiring the Securities for investment for its own account and not with the view to, or for resale in connection with, any distribution thereof. The Purchaser understands and acknowledges that the offering and sale of the Securities have not been registered under the Securities Act or any state securities laws, by reason of a specific exemption from the registration provisions of the Securities Act and applicable state securities laws, which depends upon, among other things, the bona fide nature of the investment intent as expressed herein. The Purchaser further represents that it does not have any contract, undertaking, agreement or arrangement with any person to sell, transfer or grant participation to any third person with respect to any of the Securities, other than with respect to an Affiliate of the Purchaser. The Purchaser is an “accredited investor” as defined in Rule 501 of Regulation D as promulgated by the SEC under the Securities Act, and warrants the Purchaser shall submit to the Seller that as of the date hereof, as of the date of each respective Purchase Price and Terms Letter and as of each respective Closing Date (or as Company such further assurances of such other date or dates status as may be expressly reasonably requested by the Company. The Purchaser has not taken any of the actions set forth below):in, and is not subject to, the disqualification provisions of Rule 506(d)(1) of the Securities Act.
(c) The Purchaser represents that (i) The Purchaser it was not formed for the specific purpose of acquiring the Securities, (ii) it is duly organized, validly existing and in good standing as a corporation under the laws of the Maryland. The Purchaser jurisdiction of its organization, (iii) the consummation of the transactions contemplated hereby is authorized by, and will not result in a violation of applicable law or its charter or other organizational documents, (iv) it has full power and authority to execute and deliver each Transaction Document and to carry out the provisions thereof and to purchase and hold the Securities, (corporate v) the execution and otherwise) to enter into and perform its obligations under delivery of each Transaction Document by the Program Documents.
(ii) This Agreement, the Master Servicing Agreement and the Custodial Letter Agreement each Purchaser has been duly authorizedauthorized by all necessary action, and (vi) each Transaction Document has been duly executed and delivered by on behalf of the Purchaser, Purchaser and each constitutes the is a legal, valid and binding agreement obligation of the Purchaser, enforceable against . The execution and delivery of each Transaction Document by the Purchaser in accordance with its terms.
(iii) As of the date the respective Purchase Price and Terms Letter and as of the respective Closing Date, the Purchase Price and Terms Letter has been duly authorized, executed and delivered by the Purchaser, and the Purchase Price and Terms Letter constitutes the legal, valid and binding agreement of the Purchaser, enforceable against the Purchaser in accordance with its terms.
(iv) Neither the delivery of the Purchase Price to the Seller, nor the purchase of the Mortgage Loans by the Purchaser, nor the execution or delivery of the Program Documents, nor the consummation of any of the Transactions herein or therein contemplated, nor the fulfillment of the terms hereof or thereof, will result in the breach of any term or provision of the charter or by-laws of the Purchaser, does not violate or conflict withwith any order, result in a breachjudgment, violation or acceleration of or constitute a default under a material term of any indenture or other injunction, agreement or instrument controlling document to which the Purchaser is a party or by which it is bound.
(d) The Purchaser understands that the Securities are being offered and sold to it in reliance on specific exemptions from the registration requirements of United States federal and state securities laws and that the Company is relying in part upon the truth and accuracy of, and the Purchaser’s compliance with, the representations, warranties, agreements, acknowledgments and understandings of the Purchaser set forth herein in order to determine the availability of such exemptions and the eligibility of the Purchaser to acquire such securities. The Purchaser further acknowledges and understands that the Company is relying on the representations and warranties made by the Purchaser hereunder and that such representations and warranties are a material inducement to the Company to sell the Securities to the Purchaser. The Purchaser further acknowledges that without such representations and warranties of the Purchaser made hereunder, the Company would not enter into the Transaction Documents with the Purchaser.
(e) The Purchaser understands that, other than as provided in the Registration Rights Agreement, the Company does not currently intend to register the Securities under the Securities Act at any time in the future; and the undersigned will not immediately be entitled to the benefits of Rule 144 with respect to the Securities. The Purchaser understands that there can be no assurance that any public market for the Common Stock will exist or continue to exist. The Company makes no representation or warranty with respect to the continued quotation of the Common Stock on the OTC Markets QX tier or listing on any other market or exchange.
(f) The Purchaser has received, reviewed and understood the information about the Company provided to it by the Company and has had an opportunity to discuss the Company’s business, management and financial affairs with the Company’s management. The Purchaser understands that such discussions, as well as any information provided by the Company, were intended to describe the aspects of the Company’s business and prospects which the Company believes to be material, but were not necessarily a thorough or exhaustive description, and except as expressly set forth in this Agreement, the Company makes no representation or warranty with respect to the completeness of such information and makes no representation or warranty of any kind with respect to any information provided by anyone other than the Company. Some of such information may include projections as to the future performance of the Company, which projections may not be realized, may be based on assumptions which may not be correct and may be subject to numerous factors beyond the Company’s control. The Purchaser acknowledges that it is not relying upon any person or entity, other than the Company and its officers and directors, in making its investment or decision to invest in the Company. Additionally, the Purchaser understands and represents that he, she or it is purchasing the Securities notwithstanding the fact that the Company may disclose in the future certain material information the Purchaser has not received, including financial statements of the Company for the current or prior fiscal periods, and any subsequent period financial statements that will be filed with the SEC, that it is not relying on any such information in connection with its purchase of the Securities and that it waives any right of action with respect to the nondisclosure to it prior to its purchase of the Securities of any such information, in each case, without waiving or otherwise limiting any right or claim the Purchaser may have hereunder. The Purchaser has sought such accounting, legal and tax advice as the Purchaser has considered necessary to make an informed investment decision with respect to its acquisition of the Securities.
(g) The Purchaser acknowledges that the Company is not acting as a financial advisor or fiduciary of the Purchaser (or in any similar capacity) with respect to the Transaction Documents and the transactions contemplated thereby, and no investment advice has been given by the Company or any of its representatives or agents in connection with the Transaction Documents and the transactions contemplated thereby. The Purchaser further represents to the Company that the Purchaser’s decision to enter into each Transaction Document has been based solely on the independent evaluation by the Purchaser and the Purchaser’s representatives and the representations and warranties made by the Company in Section 2 hereof.
(h) As of the First Closing, all actions on the part of Purchaser, and its officers, directors and partners, if applicable, necessary for the authorization, execution and delivery of each Transaction Document and the performance of all obligations of the Purchaser thereunder shall have been taken, and each Transaction Document, assuming due execution by the parties thereto, constitutes a valid and legally binding obligation of the Purchaser, enforceable in accordance with its terms, subject to: (i) judicial principles limiting the availability of specific performance, injunctive relief, and other equitable remedies and (ii) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect generally relating to or affecting creditors’ rights.
(i) Neither the Purchaser nor, to its knowledge, any person or entity controlled by the Purchaser: (i) is a person listed in the Annex to Executive Order No. 13224 (2001) issued by the President of the United States (Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism); (ii) is named on the List of Specially Designated Nationals and Blocked Persons maintained by the U.S. Office of Foreign Assets Control; (iii) is a non-U.S. shell bank or is providing banking services indirectly to a non-U.S. shell bank; (iv) is a senior non-U.S. political figure or an immediate family member or close associate of such figure; or (v) is otherwise prohibited from investing in the Company pursuant to applicable U.S. anti-money laundering, anti-terrorist and asset control laws, regulations, rules or orders (categories (i) through (v), each a “Prohibited Purchaser”). The Purchaser (i) agrees to provide the Company, promptly upon request, all information that the Company reasonably deems necessary or appropriate to comply with applicable U.S. anti-money laundering, anti-terrorist and asset control laws, regulations, rules and orders and (ii) consents to the disclosure to U.S. regulators and law enforcement authorities by the Company and its Affiliates and agents of such information about the Purchaser as the Company reasonably deems necessary or appropriate to comply with applicable U.S. anti-money laundering, anti-terrorist and asset control laws, regulations, rules and orders. If the Purchaser is bound, or any statute, order or regulation of any court, regulatory body, administrative agency, governmental body or arbitrator.
(v) There are no actions, proceedings or investigations pending or, a financial institution that is subject to the USA Patriot Act, the Purchaser represents that it has met all of its obligations under the USA Patriot Act. The Purchaser acknowledges that if, following its investment in the Company, the Company reasonably determines that the Purchaser is a Prohibited Purchaser's knowledge, threatened the Company has the right or may be obligated to prohibit additional investments and segregate the assets constituting the investment in accordance with applicable regulations. The Purchaser further acknowledges that neither the Purchaser nor any of the Purchaser’s Affiliates or agents will have any claim against the Purchaser that, either in Company for any one instance or in the aggregate, could draw into question the validity form of damages as a result of any of the Program Documents or prevent the consummation of any of the Transactionsforegoing actions.
(vij) No consentIf the Purchaser is an Affiliate of a non-U.S. banking institution (a “Foreign Bank”), approvalor if the Purchaser receives deposits from, authorization makes payments on behalf of, or order of any courthandles other financial transactions related to a Foreign Bank, regulatory bodythe Purchaser represents and warrants to the Company that: (1) the Foreign Bank has a fixed address, administrative agencyother than solely an electronic address, governmental body or arbitrator in a country in which the Foreign Bank is required for authorized to conduct banking activities; (2) the execution or delivery Foreign Bank maintains operating records related to its banking activities; (3) the Foreign Bank is subject to inspection by the Purchaser of banking authority that licensed the Foreign Bank to conduct banking activities; and (4) the Foreign Bank does not provide banking services to any of the Program Documents, the performance by the Purchaser of its obligations hereunder or the consummation by the Purchaser of other Foreign Bank that does not have a physical presence in any of the Transactionscountry and that is not a regulated Affiliate.
(viik) The Purchaser or its duly authorized representative realizes that because of the inherently speculative nature of businesses of the kind conducted and contemplated by the Company, the Company’s future financial results may be expected to fluctuate from month to month and from period to period and will, generally, involve a high degree of financial and market risk that could result in substantial or, at times, even total losses for investors in securities of the Company. The Purchaser has carefully read the risk factors and other information (including the financial statements of the Company) included in the SEC Reports. The Purchaser has carefully considered such risk factors before deciding to invest in the Securities.
(l) The Purchaser is not dealt with subscribing for the Securities as a result of or subsequent to any brokeradvertisement, investment bankerarticle, agent notice or other Personcommunication, except published in any newspaper, magazine or similar media or broadcast over television, radio, or the Sellerinternet, who may be entitled or presented at any seminar or meeting, or any solicitation of a subscription by a person not previously known to any commission or compensation the Purchaser in connection with investments in securities generally.
(m) The Purchaser acknowledges that no U.S. federal or state agency or any other government or governmental agency has passed upon the purchase Securities or made any finding or determination as to the fairness, suitability or wisdom of any investments therein.
(n) Other than consummating the transactions contemplated hereunder, the Purchaser has not directly or indirectly, nor has any individual or entity acting on behalf of or pursuant to any understanding with the Purchaser, executed any purchases or sales, including Short Sales (as defined below), of the Mortgage Loans.securities of the Company during the period commencing at the time Purchaser was first contacted by the Company or any other individual or entity representing the Company regarding the transactions contemplated hereunder. Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed
Appears in 1 contract
Representations, Warranties and Agreements of the Purchaser. The Purchaser hereby represents and warrants to the Company and the Guarantors as follows (it being understood that the Purchaser does not make any representation, warranty, covenant or agreement to any other purchaser of First Lien Notes or to the Company or the Guarantors on behalf of any other purchaser of the First Lien Notes):
(a) The Purchaser, without conceding that any Mortgage Loans are securities, hereby makes the following representations, warranties and agreements, which shall have been deemed to have been made as of the respective Closing Date:
Purchaser (i) The Purchaser is knowledgeable, sophisticated and experienced in making, and is qualified to make, decisions with respect to investments in securities representing an investment decision like that involved in the purchase of the First Lien Notes, and has requested, received, reviewed and considered all information it deems relevant in making an informed decision to purchase the First Lien Notes; (ii) is acquiring the Mortgage Loans First Lien Notes in the ordinary course of its business and for its own account for investment purposes only and not for with no present intention of distributing any of such First Lien Notes or any arrangement or understanding with any other Person.
(ii) The Purchaser considers itself a substantial, sophisticated institutional investor having persons regarding the distribution of such knowledge First Lien Notes; and experience in financial and business matters that it is capable of evaluating the merits and risks of investment in the Mortgage Loans.
(iii) The Purchaser has been furnished with all information regarding the Mortgage Loans which it has requested.
(iv) Neither the Purchaser nor anyone acting on its behalf has offeredwill not, transferreddirectly or indirectly, pledgedoffer, sold sell, pledge, transfer or otherwise disposed dispose of (or solicit any Mortgage Loanoffers to buy, any interest in any Mortgage Loan or any other similar security to, or solicited any offer to buy or accept a transfer, pledge or other disposition of any Mortgage Loan, any interest in any Mortgage Loan or any other similar security from, purchase or otherwise approached acquire or negotiated with respect to take a pledge of) any Mortgage Loan, any interest in any Mortgage Loan or any other similar security with, any person in any manner, or made any general solicitation by means of general advertising or in any other manner, or taken any other action that would constitute a distribution of the Mortgage Loans under First Lien Notes except in compliance with the Securities Act of 1933, as amended (the "Securities Act"), or that would render the disposition of and any Mortgage Loan a violation of Section 5 of the Securities Act or require registration pursuant thereto, nor will it act, nor has it authorized or will it authorize any person to act, in such manner with respect to the Mortgage Loansapplicable state securities laws.
(b) The Purchaser represents is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act.
(c) The Purchaser understands and warrants to acknowledges that (i) the Seller that as First Lien Notes are being offered in transactions not involving any public offering within the meaning of the date hereofSecurities Act; (ii) the initial offering and issuance of the First Lien Notes has not been registered under the Securities Act or any other securities laws, (iii) if in the future it decides to resell, pledge or otherwise transfer the First Lien Notes that it purchases hereunder, those First Lien Notes, absent an effective registration statement under the Securities Act, may be resold, pledged or transferred only pursuant to an applicable exemption from registration under the Securities Act in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and (iv) it will, and each subsequent holder of any of the First Lien Notes that it purchases in this offering is required to, notify any subsequent purchaser of such First Lien Notes from it or subsequent holders, as applicable, of the date resale restrictions referred to in clause (iii) above.
(d) The Purchaser understands and acknowledges that the Company and the Guarantors are relying upon the truth and accuracy of, and the Purchaser’s compliance with, the representations, warranties, agreements, acknowledgments and understanding of each respective Purchase Price and Terms Letter and as of each respective Closing Date (or as the Purchaser set forth herein in order to determine the availability of such exemptions and the eligibility of the Purchaser to acquire the First Lien Notes.
(e) The Purchaser understands that the First Lien Notes will bear a restrictive legend substantially in the following form: “THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER XXXXXXX 0 XX XXX XXXXXX XXXXXX SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND THE SECURITY EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THE SECURITY EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT (A) SUCH SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (i) (a) TO A PERSON WHO IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (b) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (c) OUTSIDE THE UNITED STATES TO A NON-U.S. PERSON IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 UNDER THE SECURITIES ACT, OR (d) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL IF THE ISSUER SO REQUESTS), (ii) TO THE ISSUER, OR (iii) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE SECURITY EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN CLAUSE (A) ABOVE. NO REPRESENTATION CAN BE MADE AS TO THE AVAILABILITY OF THE EXEMPTION PROVIDED BY RULE 144 FOR RESALE OF THE SECURITY EVIDENCED HEREBY.”
(f) (i) The Purchaser has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (ii) the execution, delivery and performance of the Agreement by the Purchaser and the consummation of the transactions herein contemplated will not violate any provision of the organizational documents of the Purchaser or any statute or any authorization, judgment, decree, order, rule or regulation of any court or any regulatory body, administrative agency or other date governmental body applicable to Purchaser.
(g) The Purchaser understands that no United States federal or dates as may be expressly state agency or any other government or governmental agency has passed upon or made any recommendation or endorsement of the First Lien Notes or the fairness or suitability of the investment in the First Lien Notes nor have such authorities passed upon or endorsed the merits of the offering of the First Lien Notes.
(h) The Purchaser’s principal executive offices are in the jurisdiction set forth below):under the Purchaser’s signature on the signature block hereto.
(i) The Purchaser is duly organizedacknowledges that the Company, validly existing the Guarantors and in good standing as a corporation under its counsel will rely upon the laws accuracy of the Marylandforegoing acknowledgments, representations and agreements. The Purchaser has full power and authority (corporate and otherwise) to enter into and perform its obligations under the Program Documents.
(ii) This Agreement, the Master Servicing Agreement and the Custodial Letter Agreement each has been duly authorized, executed and delivered by the Purchaser, and each constitutes the legal, valid and binding agreement agrees that if any of the Purchaseracknowledgments, enforceable against the representations or agreements that Purchaser in accordance with is deemed to have made by its terms.
(iii) As of the date the respective Purchase Price and Terms Letter and as of the respective Closing Date, the Purchase Price and Terms Letter has been duly authorized, executed and delivered by the Purchaser, and the Purchase Price and Terms Letter constitutes the legal, valid and binding agreement of the Purchaser, enforceable against the Purchaser in accordance with its terms.
(iv) Neither the delivery of the Purchase Price to the Seller, nor the purchase of the Mortgage Loans by First Lien Notes is no longer accurate, it shall promptly notify the Purchaser, nor Company and the execution or delivery of the Program Documents, nor the consummation of any of the Transactions herein or therein contemplated, nor the fulfillment of the terms hereof or thereof, will result in the breach of any term or provision of the charter or by-laws of the Purchaser, or conflict with, result in a breach, violation or acceleration of or constitute a default under a material term of any indenture or other agreement or instrument to which Guarantors. If the Purchaser is purchasing the First Lien Notes as a party fiduciary or by which agent for one or more investor accounts, the Purchaser is boundrepresents that it has sole investment discretion with respect to each of those accounts and full power to make the above acknowledgments, or any statute, order or regulation representations and agreements on behalf of any court, regulatory body, administrative agency, governmental body or arbitratoreach account.
(v) There are no actions, proceedings or investigations pending or, to the Purchaser's knowledge, threatened against the Purchaser that, either in any one instance or in the aggregate, could draw into question the validity of any of the Program Documents or prevent the consummation of any of the Transactions.
(vi) No consent, approval, authorization or order of any court, regulatory body, administrative agency, governmental body or arbitrator is required for the execution or delivery by the Purchaser of any of the Program Documents, the performance by the Purchaser of its obligations hereunder or the consummation by the Purchaser of any of the Transactions.
(vii) The Purchaser has not dealt with any broker, investment banker, agent or other Person, except the Seller, who may be entitled to any commission or compensation in connection with the purchase of the Mortgage Loans.
Appears in 1 contract
Representations, Warranties and Agreements of the Purchaser. (a) The Purchaser, without conceding that any Mortgage Loans are securitiesthe Loan is a security as defined in the Securities Act (as hereinafter defined), hereby makes the following representations, warranties and agreements, which shall have been deemed to have been made as of the respective Closing Date:
(ia) The Purchaser is acquiring the Mortgage Loans Loan for its own account only and not for any other Personperson.
(iib) The Purchaser considers itself a substantial, sophisticated institutional investor having such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of investment in the Mortgage LoansLoan and is in the business of acquiring commercial real estate loans for investment and other purposes.
(iii) The Purchaser has been furnished with all information regarding the Mortgage Loans which it has requested.
(ivc) Neither the Purchaser nor anyone acting on its behalf has offered, transferred, pledged, sold or otherwise disposed of any Mortgage the Loan, any interest in any Mortgage the Loan or any other similar security to, or solicited any offer to buy or accept a transfer, pledge or other disposition of any Mortgage the Loan, any interest in any Mortgage the Loan or any other similar security from, or otherwise approached or negotiated with respect to any Mortgage the Loan, any interest in any Mortgage the Loan or any other similar security with, any person in any manner, or made any general solicitation by means of general advertising or in any other manner, or taken any other action that would constitute a distribution of the Mortgage Loans Loan under the Securities Act of 1933, as amended (the "“Securities Act"”), or that would render the disposition of any Mortgage the Loan a violation of Section 5 of the Securities Act or require registration pursuant thereto, nor will it act, nor has it authorized or will it authorize any person to act, in such manner with respect to the Mortgage LoansLoan.
(bd) The Purchaser represents acknowledges and warrants to the Seller that agrees that, except as of the date hereof, as of the date of each respective Purchase Price and Terms Letter and as of each respective Closing Date (or as of such other date or dates as may be expressly set forth below):in this Agreement, the Loan is being sold on an “as is” “where is” and “with all faults” basis and without recourse on the terms and conditions herein set forth.
(ie) The Purchaser is duly organizedexpressly agrees and acknowledges that Purchaser’s obligations hereunder are not in any way conditional upon, validly existing and in good standing as a corporation under or qualified by, Purchaser’s ability to obtain financing of any type or nature whatsoever (i.e., whether by way of debt, financing or equity investment or otherwise) to consummate the laws of the Maryland. The transactions contemplated hereby.
(f) Purchaser represents that it has full power and authority (corporate and otherwise) has taken all action necessary to authorize it to enter into and perform its obligations under the Program Documents.
(ii) This Agreement, the Master Servicing this Agreement and the Custodial Letter all other documents or instruments contemplated hereby. Purchaser represents and warrants that this Agreement each has been duly authorized, executed and delivered by the Purchaser, and each . This Agreement constitutes the legal, valid and binding agreement obligation of the Purchaser, enforceable against the Purchaser in accordance with its terms.
(iii) As . Purchaser represents and warrants that the execution, delivery and performance of this Agreement by Purchaser does not conflict with the date the respective Purchase Price and Terms Letter and as organizational documents of the respective Closing Date, the Purchase Price and Terms Letter has been duly authorized, executed and delivered by the Purchaser, and the Purchase Price and Terms Letter constitutes the legal, valid and binding agreement of the Purchaser, enforceable against the Purchaser in accordance with its terms.
(iv) Neither the delivery of the Purchase Price to the Seller, nor the purchase of the Mortgage Loans by the Purchaser, nor the execution or delivery of the Program Documents, nor the consummation of any of the Transactions herein or therein contemplated, nor the fulfillment of the terms hereof or thereof, will result in the breach of any term or provision of the charter or by-laws of the Purchaser, or conflict withwith any law, result in a breachstatute or regulation applicable to Purchaser, violation or acceleration of or constitute a default under a material term of any mortgage, indenture or other Agreement or agreement or instrument to which the Purchaser is a party or party. Purchaser represents and warrants that no litigation exists against Purchaser that would have a material adverse effect on the transactions contemplated by which the Purchaser is bound, or any statute, order or regulation of any court, regulatory body, administrative agency, governmental body or arbitratorthis Agreement.
(v) There are no actions, proceedings or investigations pending or, to the Purchaser's knowledge, threatened against the Purchaser that, either in any one instance or in the aggregate, could draw into question the validity of any of the Program Documents or prevent the consummation of any of the Transactions.
(vi) No consent, approval, authorization or order of any court, regulatory body, administrative agency, governmental body or arbitrator is required for the execution or delivery by the Purchaser of any of the Program Documents, the performance by the Purchaser of its obligations hereunder or the consummation by the Purchaser of any of the Transactions.
(vii) The Purchaser has not dealt with any broker, investment banker, agent or other Person, except the Seller, who may be entitled to any commission or compensation in connection with the purchase of the Mortgage Loans.
Appears in 1 contract
Samples: Loan Documents Purchase and Sale Agreement (Behringer Harvard Opportunity REIT II, Inc.)
Representations, Warranties and Agreements of the Purchaser. (a) The PurchaserPurchaser represents and warrants to, without conceding that any Mortgage Loans are securitiesand agrees with, hereby makes the following representations, warranties and agreements, which shall have been deemed to have been made as of Company the respective Closing Datefollowing:
(i) a. The Purchaser is acquiring has the Mortgage Loans for its own account only and not for any other Person.
(ii) The Purchaser considers itself a substantial, sophisticated institutional investor having such knowledge and experience in financial and business matters that it is capable of evaluating necessary to evaluate the merits and risks of its prospective investment in the Mortgage LoansCompany, and has carefully reviewed and understands the risks of, and other considerations relating to, the purchase of Shares and the tax consequences of the investment.
(iii) b. The Purchaser has been furnished is acquiring the Shares for investment for its own account and not with all information regarding the Mortgage Loans which it has requested.
(iv) Neither the Purchaser nor anyone acting on its behalf has offered, transferred, pledged, sold or otherwise disposed of any Mortgage Loan, any interest in any Mortgage Loan or any other similar security view to, or solicited any offer to buy or accept a transfer, pledge or other disposition of any Mortgage Loanfor resale in connection with, any interest in any Mortgage Loan distribution thereof. The Purchaser understands and acknowledges that the Offering and sale of the Shares have not been registered under the Securities Act or any state securities laws, by reason of a specific exemption from the registration provisions of the Securities Act and applicable state securities laws, which depends upon, among other similar security fromthings, the bona fide nature of the investment intent as expressed herein. The Purchaser further represents that it does not have any contract, undertaking, agreement or otherwise approached arrangement with any person to sell, transfer or negotiated grant participation to any third person with respect to any Mortgage Loan, any interest in any Mortgage Loan or any other similar security with, any person in any manner, or made any general solicitation by means of general advertising or in any other manner, or taken any other action that would constitute a distribution of the Mortgage Loans Shares. The Purchaser understands and acknowledges that the offering of the Shares pursuant to this Agreement will not be registered at the time of their acquisition by the Purchaser, and may never be registered, under the Securities Act nor under the state securities laws on the ground that the sale provided for in this Agreement and the issuance of 1933, as amended (securities hereunder is exempt from the "Securities Act"), or that would render the disposition of any Mortgage Loan a violation of Section 5 registration requirements of the Securities Act or require registration pursuant theretoand any applicable state securities laws.
c. The Purchaser is an “accredited investor” as defined in Rule 501 of Regulation D as promulgated by the SEC under the Securities Act, nor will it actfor the reason(s) specified on the Accredited Investor Certification attached hereto as completed by Purchaser, nor has it authorized or will it authorize any person to act, in such manner with respect and Purchaser shall submit to the Mortgage Loans.
(b) The Purchaser represents and warrants to the Seller that as of the date hereof, as of the date of each respective Purchase Price and Terms Letter and as of each respective Closing Date (or as Company such further assurances of such other date or dates status as may be expressly reasonably requested by the Company. The Purchaser resides in the jurisdiction set forth below):on the Purchaser’s Omnibus Signature Page affixed hereto.
d. The Purchaser (i) The Purchaser if a natural person, represents that he or she is the greater of (A) 21 years of age or (B) the age of legal majority in his or her jurisdiction of residence, and has full power and authority to execute and deliver this Agreement and all other related agreements or certificates and to carry out the provisions hereof and thereof; (ii) if a corporation, partnership, limited liability company or partnership, association, joint stock company, trust, unincorporated organization or other entity, represents that such entity was not formed for the specific purpose of acquiring the Shares, such entity is duly organized, validly existing and in good standing as a corporation under the laws of the Maryland. The Purchaser state or jurisdiction of its organization, the consummation of the transactions contemplated hereby is authorized by, and will not result in a violation of state law or its charter or other organizational documents, such entity has full power and authority (corporate to execute and otherwise) deliver this Agreement and all other related agreements or certificates and to enter into carry out the provisions hereof and perform its obligations under thereof and to purchase and hold the Program Documents.
(ii) This AgreementShares, the Master Servicing execution and delivery of this Agreement and the Custodial Letter Agreement each has been duly authorizedauthorized by all necessary action, this Agreement has been duly executed and delivered by the Purchaser, on behalf of such entity and each constitutes the is a legal, valid and binding agreement obligation of the Purchaser, enforceable against the Purchaser in accordance with its terms.
such entity; or (iii) As if executing this Agreement in a representative or fiduciary capacity, represents that it has full power and authority to execute and deliver this Agreement in such capacity and on behalf of the date subscribing individual, xxxx, partnership, trust, estate, corporation, or limited liability company or partnership, or other entity for whom the respective Purchase Price and Terms Letter and as of the respective Closing Date, the Purchase Price and Terms Letter has been duly authorized, executed and delivered by the PurchaserPurchaser is executing this Agreement, and such individual, partnership, xxxx, trust, estate, corporation, or limited liability company or partnership, or other entity has full right and power to perform pursuant to this Agreement and make an investment in the Purchase Price Company, and Terms Letter represents that this Agreement constitutes the a legal, valid and binding agreement obligation of the Purchaser, enforceable against the Purchaser in accordance with its terms.
(iv) Neither the such entity. The execution and delivery of the Purchase Price to the Sellerthis Agreement will not violate or be in conflict with any order, nor the purchase of the Mortgage Loans by the Purchaserjudgment, nor the execution or delivery of the Program Documentsinjunction, nor the consummation of any of the Transactions herein or therein contemplated, nor the fulfillment of the terms hereof or thereof, will result in the breach of any term or provision of the charter or by-laws of the Purchaser, or conflict with, result in a breach, violation or acceleration of or constitute a default under a material term of any indenture or other agreement or instrument controlling document to which the Purchaser is a party or by which it is bound.
e. The Purchaser understands that the Shares are being offered and sold to it in reliance on specific exemptions from the registration requirements of United States federal and state securities laws and that the Company is relying in part upon the truth and accuracy of, and such Purchaser’s compliance with, the representations, warranties, agreements, acknowledgments and understandings of such Purchaser set forth herein in order to determine the availability of such exemptions and the eligibility of such Purchaser to acquire such securities. The Purchaser further acknowledges and understands that the Company is relying on the representations and warranties made by the Purchaser hereunder and that such representations and warranties are a material inducement to the Company to sell the Shares to the Purchaser. The Purchaser further acknowledges that without such representations and warranties of the Purchaser made hereunder, the Company would not enter into this Agreement with the Purchaser.
f. The Purchaser understands that no public market exists for the Company’s Common Stock and that there can be no assurance that any public market for the Common Stock will exist or continue to exist.
g. The Purchaser has received and reviewed information about the Company, including all Disclosure Materials, and has had an opportunity to discuss the Company’s business, management and financial affairs with the Company’s management. The Purchaser understands that such discussions, as well as any Disclosure Materials provided by the Company, were intended to describe the aspects of the Company’s business and prospects which the Company believes to be material, but were not necessarily a thorough or exhaustive description, and except as expressly set forth in this Agreement, the Company makes no representation or warranty with respect to the completeness of such information and makes no representation or warranty of any kind with respect to any information provided by any entity other than the Company. Some of such information may include projections as to the future performance of the Company, which projections may not be realized, may be based on assumptions which may not be correct and may be subject to numerous factors beyond the Company’s control. Additionally, the Purchaser understands and represents that it is purchasing the Shares notwithstanding the fact that the Company may disclose in the future certain material information the Purchaser has not received, including (without limitation) financial statements of the Company and/or Valeritas for the current or prior fiscal periods, and any subsequent period financial statements that will be filed with the SEC, that it is not relying on any such information in connection with its purchase of the Shares and that it waives any right of action with respect to the nondisclosure to it prior to its purchase of the Shares of any such information. Each Purchaser has sought such accounting, legal and tax advice as it has considered necessary to make an informed investment decision with respect to its acquisition of the Shares.
h. The Purchaser acknowledges that none of the Company or the Placement Agents is acting as a financial advisor or fiduciary of the Purchaser (or in any similar capacity) with respect to the Transaction Documents and the transactions contemplated hereby and thereby, and no investment advice has been given by the Company, the Placement Agents or any of their respective representatives or agents in connection with the Transaction Documents and the transactions contemplated hereby and thereby. The Purchaser further represents to the Company that the Purchaser’s decision to enter into the Transaction Documents has been based solely on the independent evaluation by the Purchaser and its representatives.
i. As of the Closing, all actions on the part of Purchaser, and its officers, directors and partners, if applicable, necessary for the authorization, execution and delivery of this Agreement and the Registration Rights Agreement and the performance of all obligations of the Purchaser hereunder and thereunder shall have been taken, and this Agreement and the Registration Rights Agreement, assuming due execution by the parties hereto and thereto, constitute valid and legally binding obligations of the Purchaser, enforceable in accordance with their respective terms, subject to: (i) judicial principles limiting the availability of specific performance, injunctive relief, and other equitable remedies and (ii) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect generally relating to or affecting creditors’ rights.
j. Purchaser represents that neither it nor, to its knowledge, any person or entity controlling, controlled by or under common control with it, nor any person having a beneficial interest in it, nor any person on whose behalf the Purchaser is boundacting: (i) is a person listed in the Annex to Executive Order No. 13224 (2001) issued by the President of the United States (Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or any statute, order Support Terrorism); (ii) is named on the List of Specially Designated Nationals and Blocked Persons maintained by the U.S. Office of Foreign Assets Control; (iii) is a non-U.S. shell bank or regulation is providing banking services indirectly to a non-U.S. shell bank; (iv) is a senior non-U.S. political figure or an immediate family member or close associate of any court, regulatory body, administrative agency, governmental body such figure; or arbitrator.
(v) There are no actionsis otherwise prohibited from investing in the Company pursuant to applicable U.S. anti-money laundering, proceedings anti-terrorist and asset control laws, regulations, rules or investigations pending ororders (categories (i) through (v), each a “Prohibited Purchaser”). The Purchaser agrees to provide the Company, promptly upon request, all information that the Company reasonably deems necessary or appropriate to comply with applicable U.S. anti-money laundering, anti-terrorist and asset control laws, regulations, rules and orders. The Purchaser consents to the Purchaser's knowledgedisclosure to U.S. regulators and law enforcement authorities by the Company and its Affiliates and agents of such information about the Purchaser as the Company reasonably deems necessary or appropriate to comply with applicable U.S. anti-money laundering, threatened anti-terrorist and asset control laws, regulations, rules and orders. If the Purchaser is a financial institution that is subject to the USA Patriot Act, the Purchaser represents that it has met all of its obligations under the USA Patriot Act. The Purchaser acknowledges that if, following its investment in the Company, the Company reasonably believes that the Purchaser is a Prohibited Purchaser or is otherwise engaged in suspicious activity or refuses to promptly provide information that the Company requests, the Company has the right or may be obligated to prohibit additional investments, segregate the assets constituting the investment in accordance with applicable regulations or immediately require the Purchaser to transfer the Shares. The Purchaser further acknowledges that the Purchaser will have no claim against the Purchaser that, either in Company or any one instance of its Affiliates or in the aggregate, could draw into question the validity agents for any form of damages as a result of any of the Program Documents foregoing actions. If the Purchaser is an Affiliate of a non-U.S. banking institution (a “Foreign Bank”), or prevent if the consummation of Purchaser receives deposits from, makes payments on behalf of, or handles other financial transactions related to a Foreign Bank, the Purchaser represents and warrants to the Company that: (i) the Foreign Bank has a fixed address, other than solely an electronic address, in a country in which the Foreign Bank is authorized to conduct banking activities; (ii) the Foreign Bank maintains operating records related to its banking activities; (iii) the Foreign Bank is subject to inspection by the banking authority that licensed the Foreign Bank to conduct banking activities; and (iv) the Foreign Bank does not provide banking services to any other Foreign Bank that does not have a physical presence in any country and that is not a regulated Affiliate.
k. The Purchaser or its duly authorized representative realizes that because of the Transactionsinherently speculative nature of businesses of the kind conducted and contemplated by the Company, the Company’s financial results may be expected to fluctuate from month to month and from period to period and will, generally, involve a high degree of financial and market risk that could result in substantial or, at times, even total losses for investors in securities of the Company.
(vi) No consent, approval, authorization or order of any court, regulatory body, administrative agency, governmental body or arbitrator is required for the execution or delivery by the Purchaser of any of the Program Documents, the performance by the Purchaser of its obligations hereunder or the consummation by the Purchaser of any of the Transactions.
(vii) l. The Purchaser has adequate means of providing for its current and anticipated financial needs and contingencies, is able to bear the economic risk for an indefinite period of time and has no need for liquidity of the investment in the Shares and could afford complete loss of such investment.
m. The Purchaser is not dealt with subscribing for Shares as a result of or subsequent to any brokeradvertisement, investment bankerarticle, agent notice or other Personcommunication, except published in any newspaper, magazine or similar media or broadcast over television, radio, or the Sellerinternet, who may be entitled or presented at any seminar or meeting, or any solicitation of a subscription by a person not previously known to any commission or compensation the Purchaser in connection with investments in securities generally.
n. The Purchaser acknowledges that no U.S. federal or state agency or any other government or governmental agency has passed upon the purchase Shares or made any finding or determination as to the fairness, suitability or wisdom of any investments therein.
o. Other than consummating the transactions contemplated hereunder, the Purchaser has not directly or indirectly, nor has any individual or entity acting on behalf of or pursuant to any understanding with such Purchaser, executed any purchases or sales, including Short Sales, of the Mortgage Loans.securities of the Company during the period commencing as of the time that such Purchaser first received a term sheet (written or oral) from the Company or any other individual or entity representing the Company setting forth the material terms of the transactions contemplated hereunder and ending immediately prior to the execution hereof. Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the
Appears in 1 contract
Representations, Warranties and Agreements of the Purchaser. (a) The Purchaser, without conceding that severally and not jointly with any Mortgage Loans are securitiesother Purchaser, hereby makes represents and warrants to, and agrees with, the following representations, warranties and agreements, which shall have been deemed to have been made as of Company the respective Closing Datefollowing:
(i) a. The Purchaser is acquiring has the Mortgage Loans for its own account only and not for any other Person.
(ii) The Purchaser considers itself a substantial, sophisticated institutional investor having such knowledge and experience in financial and business matters that it is capable of evaluating necessary to evaluate the merits and risks of its prospective investment in the Mortgage LoansCompany, and has carefully reviewed and understands the risks of, and other considerations relating to, the purchase of Securities and the tax consequences of the investment, and has the ability to bear the economic risks of the investment. The Purchaser can afford the loss of his, her or its entire investment.
(iii) b. The Purchaser has been furnished is acquiring the Securities for investment for his, her or its own account and not with all information regarding the Mortgage Loans which it has requested.
(iv) Neither the Purchaser nor anyone acting on its behalf has offered, transferred, pledged, sold or otherwise disposed of any Mortgage Loan, any interest in any Mortgage Loan or any other similar security view to, or solicited any offer to buy or accept a transfer, pledge or other disposition of any Mortgage Loanfor resale in connection with, any interest in any Mortgage Loan distribution thereof. The Purchaser understands and acknowledges that the Offering and sale of the Securities have not been registered under the Securities Act or any state securities laws, by reason of a specific exemption from the registration provisions of the Securities Act and applicable state securities laws, which depends upon, among other similar security fromthings, the bona fide nature of the investment intent as expressed herein. The Purchaser further represents that he, she or otherwise approached it does not have any contract, undertaking, agreement or negotiated arrangement with any person to sell, transfer or grant participation to any third person with respect to any Mortgage Loan, any interest in any Mortgage Loan or any other similar security with, any person in any manner, or made any general solicitation by means of general advertising or in any other manner, or taken any other action that would constitute a distribution of the Mortgage Loans Securities. Subject to the provisions of Section 5 below, the Purchaser understands and acknowledges that the Offering of the Securities will not be registered under the Securities Act nor under the state securities laws on the ground that the sale of 1933, the Securities to the Purchaser as amended (provided for in this Agreement and the "Securities Act"), or that would render issuance of securities hereunder is exempt from the disposition of any Mortgage Loan a violation of Section 5 registration requirements of the Securities Act or require registration pursuant theretoand any applicable state securities laws. The Purchaser is an “accredited investor” as defined in Rule 501 of Regulation D as promulgated by the SEC under the Securities Act, nor will it actfor the reason(s) specified on the Accredited Investor Certification as completed by Purchaser, nor has it authorized or will it authorize any person to act, in such manner with respect and Purchaser shall submit to the Mortgage Loans.
(b) The Purchaser represents and warrants to the Seller that as of the date hereof, as of the date of each respective Purchase Price and Terms Letter and as of each respective Closing Date (or as Company such further assurances of such other date or dates status as may be expressly reasonably requested by the Company. The Purchaser resides in the jurisdiction set forth below):on the Purchaser’s Omnibus Signature Page affixed hereto. The Purchaser has not taken any of the actions set forth in, and is not subject to, the disqualification provisions of Rule 506(d)(1) of the Securities Act.
c. The Purchaser (i) The Purchaser if a natural person, represents that he or she is the greater of (A) 21 years of age or (B) the age of legal majority in his or her jurisdiction of residence, and has full power and authority to execute and deliver this Agreement and all other related agreements or certificates and to carry out the provisions hereof and thereof; (ii) if a corporation, partnership, limited liability company, association, joint stock company, trust, unincorporated organization or other entity, represents that such entity was not formed for the specific purpose of acquiring the Securities, such entity is duly organized, validly existing and in good standing as a corporation under the laws of the Maryland. The Purchaser state or jurisdiction of its organization, the consummation of the transactions contemplated hereby is authorized by, and will not result in a violation of state law or its charter or other organizational documents, such entity has full power and authority (corporate to execute and otherwise) deliver this Agreement and all other related agreements or certificates and to enter into carry out the provisions hereof and perform its obligations under thereof and to purchase and hold the Program Documents.
(ii) This AgreementSecurities, the Master Servicing execution and delivery of this Agreement and the Custodial Letter Agreement each has been duly authorizedauthorized by all necessary action, this Agreement has been duly executed and delivered by the Purchaser, on behalf of such entity and each constitutes the is a legal, valid and binding agreement obligation of the Purchaser, enforceable against the Purchaser in accordance with its terms.
such entity; or (iii) As if executing this Agreement in a representative or fiduciary capacity, represents that he, she or it has full power and authority to execute and deliver this Agreement in such capacity and on behalf of the date subscribing individual, xxxx, partnership, trust, estate, corporation, or limited liability company or partnership, or other entity for whom the respective Purchase Price and Terms Letter and as of the respective Closing Date, the Purchase Price and Terms Letter has been duly authorized, executed and delivered by the PurchaserPurchaser is executing this Agreement, and such individual, partnership, xxxx, trust, estate, corporation, or limited liability company or partnership, or other entity has full right and power to perform pursuant to this Agreement and make an investment in the Purchase Price Company, and Terms Letter represents that this Agreement constitutes the a legal, valid and binding agreement obligation of the Purchaser, enforceable against the Purchaser in accordance with its terms.
(iv) Neither the such entity. The execution and delivery of the Purchase Price to the Sellerthis Agreement will not violate or be in conflict with any order, nor the purchase of the Mortgage Loans by the Purchaserjudgment, nor the execution or delivery of the Program Documentsinjunction, nor the consummation of any of the Transactions herein or therein contemplated, nor the fulfillment of the terms hereof or thereof, will result in the breach of any term or provision of the charter or by-laws of the Purchaser, or conflict with, result in a breach, violation or acceleration of or constitute a default under a material term of any indenture or other agreement or instrument controlling document to which the Purchaser is a party or by which it is bound.
d. The Purchaser understands that the Securities are being offered and sold to him, her or it in reliance on specific exemptions from the registration requirements of United States federal and state securities laws and that the Company is relying in part upon the truth and accuracy of, and such Purchaser’s compliance with, the representations, warranties, agreements, acknowledgments and understandings of such Purchaser set forth herein in order to determine the availability of such exemptions and the eligibility of such Purchaser to acquire such securities. The Purchaser further acknowledges and understands that the Company is relying on the representations and warranties made by the Purchaser hereunder and that such representations and warranties are a material inducement to the Company to sell the Securities to the Purchaser. The Purchaser further acknowledges that without such representations and warranties of the Purchaser made hereunder, the Company would not enter into this Agreement with the Purchaser.
e. Unless the Purchaser has completed the Accredited Investor Certification, the Purchaser is boundnot a U.S. Purchaser, the Purchaser is resident outside of the United States and represents;
(i) the Purchaser is knowledgeable of, or has been independently advised as to, the applicable securities laws having application in the jurisdiction in which the Purchaser is resident (the “International Jurisdiction”) which would apply to the offer and sale of the Securities;
(ii) the Purchaser is purchasing the Securities pursuant to exemptions from prospectus or equivalent requirements under applicable laws of the International Jurisdiction or, if such is not applicable, the Purchaser is permitted to purchase the Securities under applicable securities laws of the International Jurisdiction without the need to rely on any exemptions;
(iii) the applicable laws and regulations of the International Jurisdiction do not and will not require the Company to make any filings or seek any approvals of any kind from any securities regulator of any kind in the International Jurisdiction in connection with the offer, issue, sale or resale of any of the Securities;
(iv) the purchase of the Securities by the Purchaser does not trigger:
A. any obligation to prepare and file a prospectus or similar document, or any statuteother report with respect to such purchase in the International Jurisdiction, order or regulation or
B. any continuous disclosure reporting obligation of any courtthe Companyin the International Jurisdiction, regulatory body, administrative agency, governmental body or arbitrator.and
(v) There are the Purchaser will, if requested by the Issuer, deliver to the Company a certificate or opinion of local counsel from the International Jurisdiction which will confirm the matters referred to in subparagraphs (ii), (iii) and (iv) above to the satisfaction of the Issuer, acting reasonably.
f. The Purchaser understands that no actionspublic market exists for the Company’s shares and that there can be no assurance that any public market for the shares will exist or continue to exist.
g. The Purchaser has received, proceedings reviewed and understood the information about the Company, and has had an opportunity to discuss the Company’s business, management and financial affairs with the Company’s management. The Purchaser understands that such discussions, were intended to describe the aspects of the Company’s business and prospects and the Offering which the Company believes to be material, but were not necessarily a thorough or investigations pending orexhaustive description, and except as expressly set forth in this Agreement, the Company makes no representation or warranty with respect to the completeness of such information and makes no representation or warranty of any kind with respect to any information provided by any entity other than the Company. Some of such information may include projections as to the future performance of the Company, which projections may not be realized, may be based on assumptions which may not be correct and may be subject to numerous factors beyond the Company’s control. The Purchaser acknowledges that he, she or it is not relying upon any person or entity, other than the Company and its officers and directors, in making its investment or decision to invest in the Company. Each Purchaser has sought such accounting, legal and tax advice as the Purchaser has considered necessary to make an informed investment decision with respect to his, her or its acquisition of the Securities.
h. The Purchaser acknowledges that the Company is not acting as a financial advisor or fiduciary of the Purchaser (or in any similar capacity) with respect to the Transaction Documents and the transactions contemplated hereby and thereby, and no investment advice has been given by the Company or any of their respective representatives or agents in connection with the Transaction Documents and the transactions contemplated hereby and thereby. The Purchaser further represents to the Company that the Purchaser’s decision to enter into the Transaction Documents has been based solely on the independent evaluation by the Purchaser and the Purchaser’s representatives, as well as the provisions of the Transaction Documents.
i. As of the applicable Closing, all actions on the part of Purchaser, and its officers, directors and partners, if applicable, necessary for the authorization, execution and delivery of this Agreement and the performance of all obligations of the Purchaser hereunder and thereunder shall have been taken, and this Agreement, assuming due execution by the parties hereto and thereto, constitute valid and legally binding obligations of the Purchaser, enforceable in accordance with their respective terms, subject to: (i) judicial principles limiting the availability of specific performance, injunctive relief, and other equitable remedies and (ii) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect generally relating to or affecting creditors’ rights.
j. Purchaser represents that neither it nor, to its knowledge, any person or entity controlling, controlled by or under common control with it, nor any person having a beneficial interest in the Purchaser's knowledge, threatened nor any person on whose behalf the Purchaser is acting: (i) is a person listed in the Annex to Executive Order No. 13224 (2001) issued by the President of the United States (Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism); (ii) is named on the List of Specially Designated Nationals and Blocked Persons maintained by the U.S. Office of Foreign Assets Control; (iii) is a non-U.S. shell bank or is providing banking services indirectly to a non-U.S. shell bank; (iv) is a senior non-U.S. political figure or an immediate family member or close associate of such figure; or (v) is otherwise prohibited from investing in the Company pursuant to applicable U.S. anti-money laundering, anti-terrorist and asset control laws, regulations, rules or orders (categories (i) through (v), each a “Prohibited Purchaser”). The Purchaser agrees to provide the Company, promptly upon request, all information that the Company reasonably deems necessary or appropriate to comply with applicable U.S. anti-money laundering, anti-terrorist and asset control laws, regulations, rules and orders. The Purchaser consents to the disclosure to U.S. regulators and law enforcement authorities by the Company and its Affiliates and agents of such information about the Purchaser as the Company reasonably deems necessary or appropriate to comply with applicable U.S. anti-money laundering, anti-terrorist and asset control laws, regulations, rules and orders. If the Purchaser is a financial institution that is subject to the USA Patriot Act, the Purchaser represents that it has met all of its obligations under the USA Patriot Act. The Purchaser acknowledges that if, following its investment in the Company, the Company reasonably determines that the Purchaser is a Prohibited Purchaser or is otherwise engaged in suspicious activity or refuses to promptly provide information that the Company requests, the Company has the right or may be obligated to prohibit additional investments, segregate the assets constituting the investment in accordance with applicable regulations or immediately require the Purchaser to transfer the Securities. The Purchaser further acknowledges that neither the Purchaser nor any of the Purchaser’s Affiliates or agents will have any claim against the Purchaser that, either in Company for any one instance or in the aggregate, could draw into question the validity form of damages as a result of any of the Program Documents foregoing actions.
k. If the Purchaser is Affiliated with a non-U.S. banking institution (a “Foreign Bank”), or prevent if the consummation of Purchaser receives deposits from, makes payments on behalf of, or handles other financial transactions related to a Foreign Bank, the Purchaser represents and warrants to the Company that: (1) the Foreign Bank has a fixed address, other than solely an electronic address, in a country in which the Foreign Bank is authorized to conduct banking activities; (2) the Foreign Bank maintains operating records related to its banking activities; (3) the Foreign Bank is subject to inspection by the banking authority that licensed the Foreign Bank to conduct banking activities; and (4) the Foreign Bank does not provide banking services to any other Foreign Bank that does not have a physical presence in any country and that is not a regulated Affiliate.
l. The Purchaser or its duly authorized representative realizes that because of the Transactions.
(vi) No consent, approval, authorization or order inherently speculative nature of any court, regulatory body, administrative agency, governmental body or arbitrator is required for businesses of the execution or delivery kind conducted and contemplated by the Purchaser Company, the Company’s financial results may be expected to fluctuate from month to month and from period to period and will, generally, involve a high degree of any financial and market risk that could result in substantial or, at times, even total losses for investors in securities of the Program Documents, the performance by the Purchaser of its obligations hereunder or the consummation by the Purchaser of any of the TransactionsCompany.
(vii) The Purchaser has not dealt with any broker, investment banker, agent or other Person, except the Seller, who may be entitled to any commission or compensation in connection with the purchase of the Mortgage Loans.
Appears in 1 contract
Representations, Warranties and Agreements of the Purchaser. (a) The PurchaserPurchaser represents and warrants to, without conceding that any Mortgage Loans are securitiesand agrees with, hereby makes the following representations, warranties and agreements, which shall have been deemed to have been made as of Company the respective Closing Datefollowing:
(i) a. The Purchaser is acquiring has the Mortgage Loans for its own account only and not for any other Person.
(ii) The Purchaser considers itself a substantial, sophisticated institutional investor having such knowledge and experience in financial and business matters that it is capable of evaluating necessary to evaluate the merits and risks of its prospective investment in the Mortgage LoansCompany, and has carefully reviewed and understands the risks of, and other considerations relating to, the purchase of Shares and the tax consequences of the investment.
(iii) b. The Purchaser has been furnished is acquiring the Shares for investment for its own account and not with all information regarding the Mortgage Loans which it has requested.
(iv) Neither the Purchaser nor anyone acting on its behalf has offered, transferred, pledged, sold or otherwise disposed of any Mortgage Loan, any interest in any Mortgage Loan or any other similar security view to, or solicited any offer to buy or accept a transfer, pledge or other disposition of any Mortgage Loanfor resale in connection with, any interest in any Mortgage Loan distribution thereof. The Purchaser understands and acknowledges that the Offering and sale of the Shares have not been registered under the Securities Act or any state securities laws, by reason of a specific exemption from the registration provisions of the Securities Act and applicable state securities laws, which depends upon, among other similar security fromthings, the bona fide nature of the investment intent as expressed herein. The Purchaser further represents that it does not have any contract, undertaking, agreement or otherwise approached arrangement with any person to sell, transfer or negotiated grant participation to any third person with respect to any Mortgage Loan, any interest in any Mortgage Loan or any other similar security with, any person in any manner, or made any general solicitation by means of general advertising or in any other manner, or taken any other action that would constitute a distribution of the Mortgage Loans Shares. The Purchaser understands and acknowledges that the offering of the Shares pursuant to this Agreement will not be registered at the time of their acquisition by the Purchaser, and may never be registered, under the Securities Act nor under the state securities laws on the ground that the sale provided for in this Agreement and the issuance of 1933, as amended (securities hereunder is exempt from the "Securities Act"), or that would render the disposition of any Mortgage Loan a violation of Section 5 registration requirements of the Securities Act or require registration pursuant theretoand any applicable state securities laws.
c. The Purchaser is an “accredited investor” as defined in Rule 501 of Regulation D as promulgated by the SEC under the Securities Act, nor will it actfor the reason(s) specified on the Accredited Investor Certification attached hereto as completed by Purchaser, nor has it authorized or will it authorize any person to act, in such manner with respect and Purchaser shall submit to the Mortgage Loans.
(b) The Purchaser represents and warrants to the Seller that as of the date hereof, as of the date of each respective Purchase Price and Terms Letter and as of each respective Closing Date (or as Company such further assurances of such other date or dates status as may be expressly reasonably requested by the Company. The Purchaser resides in the jurisdiction set forth below):on the Purchaser’s Omnibus Signature Page affixed hereto.
d. The Purchaser (i) The Purchaser if a natural person, represents that he or she is the greater of (A) 21 years of age or (B) the age of legal majority in his or her jurisdiction of residence, and has full power and authority to execute and deliver this Agreement and all other related agreements or certificates and to carry out the provisions hereof and thereof; (ii) if a corporation, partnership, limited liability company or partnership, association, joint stock company, trust, unincorporated organization or other entity, represents that such entity was not formed for the specific purpose of acquiring the Shares, such entity is duly organized, validly existing and in good standing as a corporation under the laws of the Maryland. The Purchaser state or jurisdiction of its organization, the consummation of the transactions contemplated hereby is authorized by, and will not result in a violation of state law or its charter or other organizational documents, such entity has full power and authority (corporate to execute and otherwise) deliver this Agreement and all other related agreements or certificates and to enter into carry out the provisions hereof and perform its obligations under thereof and to purchase and hold the Program Documents.
(ii) This AgreementShares, the Master Servicing execution and delivery of this Agreement and the Custodial Letter Agreement each has been duly authorizedauthorized by all necessary action, this Agreement has been duly executed and delivered by the Purchaser, on behalf of such entity and each constitutes the is a legal, valid and binding agreement obligation of the Purchaser, enforceable against the Purchaser in accordance with its terms.
such entity; or (iii) As if executing this Agreement in a representative or fiduciary capacity, represents that it has full power and authority to execute and deliver this Agreement in such capacity and on behalf of the date subscribing individual, xxxx, partnership, trust, estate, corporation, or limited liability company or partnership, or other entity for whom the respective Purchase Price and Terms Letter and as of the respective Closing Date, the Purchase Price and Terms Letter has been duly authorized, executed and delivered by the PurchaserPurchaser is executing this Agreement, and such individual, partnership, xxxx, trust, estate, corporation, or limited liability company or partnership, or other entity has full right and power to perform pursuant to this Agreement and make an investment in the Purchase Price Company, and Terms Letter represents that this Agreement constitutes the a legal, valid and binding agreement obligation of the Purchaser, enforceable against the Purchaser in accordance with its terms.
(iv) Neither the such entity. The execution and delivery of the Purchase Price to the Sellerthis Agreement will not violate or be in conflict with any order, nor the purchase of the Mortgage Loans by the Purchaserjudgment, nor the execution or delivery of the Program Documentsinjunction, nor the consummation of any of the Transactions herein or therein contemplated, nor the fulfillment of the terms hereof or thereof, will result in the breach of any term or provision of the charter or by-laws of the Purchaser, or conflict with, result in a breach, violation or acceleration of or constitute a default under a material term of any indenture or other agreement or instrument controlling document to which the Purchaser is a party or by which it is bound.
e. The Purchaser understands that the Shares are being offered and sold to it in reliance on specific exemptions from the registration requirements of United States federal and state securities laws and that the Company is relying in part upon the truth and accuracy of, and such Purchaser’s compliance with, the representations, warranties, agreements, acknowledgments and understandings of such Purchaser set forth herein in order to determine the availability of such exemptions and the eligibility of such Purchaser to acquire such securities. The Purchaser further acknowledges and understands that the Company is relying on the representations and warranties made by the Purchaser is bound, or any statute, order or regulation of any court, regulatory body, administrative agency, governmental body or arbitrator.
(v) There hereunder and that such representations and warranties are no actions, proceedings or investigations pending or, a material inducement to the Company to sell the Shares to the Purchaser's knowledge, threatened against . The Purchaser further acknowledges that without such representations and warranties of the Purchaser thatmade hereunder, either in any one instance or in the aggregate, could draw Company would not enter into question this Agreement with the validity of any of the Program Documents or prevent the consummation of any of the TransactionsPurchaser.
(vi) No consent, approval, authorization or order of any court, regulatory body, administrative agency, governmental body or arbitrator is required f. The Purchaser understands that no public market exists for the execution Company’s Common Stock and that there can be no assurance that any public market for the Common Stock will exist or delivery by the Purchaser of any of the Program Documents, the performance by the Purchaser of its obligations hereunder or the consummation by the Purchaser of any of the Transactionscontinue to exist.
(vii) g. The Purchaser has not dealt with any brokerreceived and reviewed information about the Company, investment bankerincluding all Disclosure Materials, agent or other Personand has had an opportunity to discuss the Company’s business, except the Seller, who may be entitled to any commission or compensation in connection management and financial affairs with the purchase of the Mortgage Loans.Company’s
Appears in 1 contract
Representations, Warranties and Agreements of the Purchaser. The Purchaser represents, warrants and agrees that:
(a) The Purchaser, without conceding that any Mortgage Loans are securities, hereby makes the following representations, warranties and agreementsPurchaser is [a national banking association], which shall have been deemed to have been made is either (a) a “qualified institutional buyer” as of the respective Closing Date:
(i) The Purchaser that term is acquiring the Mortgage Loans for its own account only and not for any other Person.
(ii) The Purchaser considers itself a substantial, sophisticated institutional investor having such knowledge and experience defined in financial and business matters that it is capable of evaluating the merits and risks of investment in the Mortgage Loans.
(iii) The Purchaser has been furnished with all information regarding the Mortgage Loans which it has requested.
(iv) Neither the Purchaser nor anyone acting on its behalf has offered, transferred, pledged, sold or otherwise disposed of any Mortgage Loan, any interest in any Mortgage Loan or any other similar security to, or solicited any offer to buy or accept a transfer, pledge or other disposition of any Mortgage Loan, any interest in any Mortgage Loan or any other similar security from, or otherwise approached or negotiated with respect to any Mortgage Loan, any interest in any Mortgage Loan or any other similar security with, any person in any manner, or made any general solicitation by means of general advertising or in any other manner, or taken any other action that would constitute a distribution of the Mortgage Loans Rule 144A under the Securities Act of 1933, as amended (the "“Securities Act"”), or (b) an “accredited investor” as that would render the disposition of any Mortgage Loan a violation of Section 5 of term is defined in Regulation D under the Securities Act or require registration pursuant thereto, nor will it act, nor has it authorized or will it authorize any person to act, in such manner with respect to the Mortgage LoansAct.
(b) The Purchaser represents and warrants to the Seller that as of the date hereof, as of the date of each respective This Purchase Price and Terms Letter and as of each respective Closing Date (or as of such other date or dates as may be expressly set forth below):
(i) The Purchaser is duly organized, validly existing and in good standing as a corporation under the laws of the Maryland. The Purchaser has full power and authority (corporate and otherwise) to enter into and perform its obligations under the Program Documents.
(ii) This Agreement, the Master Servicing Agreement and the Custodial Letter Agreement each has been duly authorized, executed and delivered by the PurchaserPurchaser and, assuming the due authorization, execution and each delivery by the District and the County, this Purchase Agreement constitutes the legal, a valid and binding agreement obligation of the Purchaser, enforceable against the Purchaser in accordance with its terms., except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors rights and by the application of equitable principles and by the exercise of judicial discretion in appropriate cases;
(iiic) As of the date the respective Purchase Price The Purchaser has sufficient knowledge and Terms Letter experience in financial and as of the respective Closing Datebusiness matters, the Purchase Price including making loans to government agencies and Terms Letter has been duly authorized, executed and delivered by the Purchaserpolitical subdivisions, and the Purchase Price purchase and Terms Letter constitutes the legal, valid ownership of municipal and binding agreement other obligations of the Purchaser, enforceable against the Purchaser in accordance with its terms.
(iv) Neither the delivery of the Purchase Price a nature similar to the SellerNote, nor to be able to evaluate the risks and merits of the purchase of the Mortgage Loans by the Purchaser, nor the execution or delivery of the Program Documents, nor the consummation of any of the Transactions herein or therein contemplated, nor the fulfillment of the terms hereof or thereof, will result Note. The Purchaser recognizes that an investment in the breach of any term or provision of the charter or by-laws of the PurchaserNote involves significant risks, or conflict with, result in a breach, violation or acceleration of or constitute a default under a material term of any indenture or other agreement or instrument to which and the Purchaser is a party or by which not relying upon the Purchaser is boundDistrict, or any statuteof its affiliates, order consultants, agents or regulation employees, for advice as to the merits and risks of investment in the Note. The Purchaser has sought such independent accounting, legal and tax advice as it has considered necessary to make an informed investment decision. The Purchaser recognizes that no guarantee can be made, or has been made by the District or the County, that an established market for the Note will develop, or that if such a market exists, that no guarantee can be made, or has been made by the District or the County, that the Note can be sold at any court, regulatory body, administrative agency, governmental body or arbitratorparticular price.
(vd) There are no actionsThe Purchaser is acquiring the Note for its own account and does not presently intend to make a public distribution of, proceedings or investigations pending orto resell or transfer, to the Purchaser's knowledge, threatened against the Purchaser that, either in all or any one instance or in the aggregate, could draw into question the validity of any part of the Program Documents or prevent the consummation of any Note. The Purchaser is not acting in a broker-dealer capacity in connection with its purchase of the TransactionsNote.
(vi) No consent, approval, authorization or order of any court, regulatory body, administrative agency, governmental body or arbitrator is required for the execution or delivery by the Purchaser of any of the Program Documents, the performance by the Purchaser of its obligations hereunder or the consummation by the Purchaser of any of the Transactions.
(viie) The Purchaser has not dealt with any brokerconducted its own independent examination of, investment bankerand has had an opportunity to ask questions and receive answers concerning, agent or the District, the authorizing documents, resolutions and other Person, except legislative actions of the Seller, who may be entitled to any commission or compensation District and the County in connection with the purchase Note, including but not limited to, the Note and the security therefor and the transactions and documents related to or contemplated by the foregoing.
(f) The Purchaser acknowledges that the Note are exempt from the requirements of Rule 15c2-12 of the Mortgage LoansSecurities and Exchange Commission and that the District has not undertaken to provide any continuing disclosure with respect to the Note.
Appears in 1 contract
Samples: Note Purchase Agreement
Representations, Warranties and Agreements of the Purchaser. Each Purchaser, severally and not jointly, represents and warrants to, and agrees with, the Company, as of the date hereof and as of the Closing Date, the following:
(a) The Purchaser, without conceding that any Mortgage Loans are securities, hereby makes Purchaser has the following representations, warranties and agreements, which shall have been deemed to have been made as of the respective Closing Date:
(i) The Purchaser is acquiring the Mortgage Loans for its own account only and not for any other Person.
(ii) The Purchaser considers itself a substantial, sophisticated institutional investor having such knowledge and experience in financial and business matters that it is capable of evaluating necessary to evaluate the merits and risks of its prospective investment in the Mortgage Loans.
(iii) Company, and has carefully reviewed and understands the risks of, and other considerations relating to, the purchase of Securities and the tax consequences of the investment. The Purchaser has been furnished with all information regarding the Mortgage Loans which it has requested.
(iv) Neither the Purchaser nor anyone acting on its behalf has offered, transferred, pledged, sold or otherwise disposed of any Mortgage Loan, any interest in any Mortgage Loan or any other similar security to, or solicited any offer to buy or accept a transfer, pledge or other disposition of any Mortgage Loan, any interest in any Mortgage Loan or any other similar security from, or otherwise approached or negotiated with respect to any Mortgage Loan, any interest in any Mortgage Loan or any other similar security with, any person in any manner, or made any general solicitation by adequate means of general advertising or in any other mannerproviding for its current and anticipated financial needs and contingencies, or taken any other action that would constitute a distribution and is able to bear the economic risks of the Mortgage Loans under the Securities Act investment for an indefinite period of 1933, as amended (the "Securities Act"), or that would render the disposition of any Mortgage Loan a violation of Section 5 time and has no need for liquidity of the Securities Act investment in the Securities. The Purchaser can afford the loss of his, her or require registration pursuant thereto, nor will it act, nor has it authorized or will it authorize any person to act, in such manner with respect to the Mortgage Loansits entire investment.
(b) The Purchaser is acquiring the Securities for investment for his, her or its own account and not with the view to, or for resale in connection with, any distribution thereof. The Purchaser understands and acknowledges that the offering and sale of the Securities have not been registered under the Securities Act or any state securities Laws, by reason of a specific exemption from the registration provisions of the Securities Act and applicable state securities Laws, which depends upon, among other things, the bona fide nature of the investment intent as expressed herein. The Purchaser further represents that he, she or it does not have any contract, undertaking, agreement or arrangement with any person to sell, transfer or grant participation to any third person with respect to any of the Securities, other than with respect to an Affiliate of the Purchaser. The Purchaser understands and warrants acknowledges that the offering of the Securities will not be registered under the Securities Act nor under the state securities laws on the ground that the sale of the Securities to the Seller that Purchaser as provided for in this Agreement and the issuance of securities hereunder is exempt from the registration requirements of the date hereof, Securities Act and any applicable state securities laws. The Purchaser is an “accredited investor” as defined in Rule 501 of Regulation D as promulgated by the date of each respective Purchase Price and Terms Letter and SEC under the Securities Act for the reason(s) specified on the Accredited Investor Certification attached hereto as of each respective Closing Date (or as of such other date or dates as may be expressly completed by the Purchaser. The Purchaser resides in the jurisdiction set forth below):
on the Purchaser’s Omnibus Signature Page affixed hereto. If the Purchaser is, with respect to the Company, (i) a predecessor of the Company; (ii) an affiliated issuer; (iii) a director, executive officer, other officer participating in the offering, general partner or managing member of the Company; (iii) any beneficial owner of 20% or more of the Company’s outstanding voting equity securities, calculated on the basis of voting power; (iv) any promoter connected with the Company in any capacity at the time of such sale; (v) any investment manager of the Company if the Company is a pooled investment fund; (vi) any person that has been or will be paid (directly or indirectly) remuneration for solicitation of purchasers in connection with the offering of the Securities; (vii) any general partner or managing member of any such investment manager or solicitor; or (viii) any director, executive officer or other officer participating in the offering of any such investment manager or solicitor or general partner or managing member of such investment manager or solicitor (each such category, a “Covered Person”), the Purchaser has not taken any of the actions set forth in, and is not subject to, the disqualification provisions of Rule 506(d)(1) of the Securities Act.
(c) The Purchaser represents that it is duly organized, validly existing and in good standing as a corporation under the laws Laws of the Maryland. The state or jurisdiction of its organization, the consummation of the transactions contemplated hereby is authorized by, and will not result in a violation of applicable Law or its charter or other organizational documents, such Purchaser has full power and authority (corporate to execute and otherwise) deliver this Agreement and all other related agreements or certificates and to enter into carry out the provisions hereof and perform its obligations under thereof and to purchase and hold the Program Documents.
(ii) This AgreementSecurities, the Master Servicing execution and delivery of this Agreement and the Custodial Letter Agreement each has been duly authorizedauthorized by all necessary action, this Agreement has been duly executed and delivered by the Purchaser, on behalf of such Purchaser and each constitutes the is a legal, valid and binding agreement obligation of the Purchaser, enforceable against the Purchaser in accordance with its terms.
(iii) As of the date the respective Purchase Price . The execution and Terms Letter and as of the respective Closing Date, the Purchase Price and Terms Letter has been duly authorized, executed and delivered by the Purchaser, and the Purchase Price and Terms Letter constitutes the legal, valid and binding agreement of the Purchaser, enforceable against the Purchaser in accordance with its terms.
(iv) Neither the delivery of the Purchase Price to the Sellerthis Agreement will not violate or be in conflict with any order, nor the purchase of the Mortgage Loans by the Purchaserjudgment, nor the execution or delivery of the Program Documentsinjunction, nor the consummation of any of the Transactions herein or therein contemplated, nor the fulfillment of the terms hereof or thereof, will result in the breach of any term or provision of the charter or by-laws of the Purchaser, or conflict with, result in a breach, violation or acceleration of or constitute a default under a material term of any indenture or other agreement or instrument controlling document to which the such Purchaser is a party or by which the Purchaser it is bound, except for any violation or any statute, order or regulation of any court, regulatory body, administrative agency, governmental body or arbitrator.
(v) There are no actions, proceedings or investigations pending or, to the Purchaser's knowledge, threatened against the Purchaser conflict that, either in any one instance individually or in the aggregate, could draw has not had and would not reasonably be expected to have a material adverse effect on the ability of such Purchaser to perform its obligations under this Agreement and the other Transaction Documents or to consummate any transactions contemplated hereby or thereby.
(d) The Purchaser understands that the Securities are being offered and sold to him, her or it in reliance on specific exemptions from the registration requirements of United States federal and state securities Laws and that the Company is relying in part upon the truth and accuracy of, and the Purchaser’s compliance with, the representations, warranties, agreements, acknowledgments and understandings of the Purchaser set forth herein in order to determine the availability of such exemptions and the eligibility of the Purchaser to acquire such securities. The Purchaser further acknowledges and understands that the Company is relying on the representations and warranties made by the Purchaser hereunder and that such representations and warranties are a material inducement to the Company to sell the Securities to the Purchaser. The Purchaser further acknowledges that without such representations and warranties of the Purchaser made hereunder, the Company would not enter into question this Agreement with the validity Purchaser.
(e) The Purchaser understands that, other than as expressly provided in the Registration Rights Agreement, the Company does not currently intend to register the Securities under the Securities Act at any time in the future; and the undersigned will not immediately be entitled to the benefits of Rule 144 with respect to the Securities.
(f) The Purchaser acknowledges that the Company is not acting as a financial advisor or fiduciary of the Purchaser (or in any similar capacity) with respect to the Transaction Documents and the transactions contemplated hereby and thereby, and no investment advice has been given by the Company or any of its respective representatives or agents in connection with the Transaction Documents and the transactions contemplated hereby and thereby.
(g) As of the Closing, all actions on the part of the Purchaser, and its officers, directors and partners, if applicable, necessary for the authorization, execution and delivery of this Agreement and the Registration Rights Agreement and the performance of all obligations of the Purchaser hereunder and thereunder shall have been taken, and this Agreement and the Registration Rights Agreement, assuming due execution by the parties hereto and thereto, constitute valid and legally binding obligations of the Purchaser, enforceable in accordance with their respective terms, except as such enforceability may be limited by general principles of equity or applicable bankruptcy, insolvency, reorganization, moratorium, liquidation or similar Laws relating to, or affecting generally, the enforcement of creditors’ rights and remedies.
(h) The Purchaser represents that neither it nor, to its knowledge, any person or entity controlling, controlled by or under common control with it, nor any person having a beneficial interest in the Purchaser, nor any person on whose behalf the Purchaser is acting: (i) is a person listed in the Annex to Executive Order No. 13224 (2001) issued by the President of the United States (Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism); (ii) is named on the List of Specially Designated Nationals and Blocked Persons maintained by the U.S. Office of Foreign Assets Control; (iii) is a non-U.S. shell bank or is providing banking services indirectly to a non-U.S. shell bank; (iv) is a senior non-U.S. political figure or an immediate family member or close associate of such figure; or (v) is otherwise prohibited from investing in the Company pursuant to applicable U.S. anti-money laundering, anti-terrorist and asset control Laws, regulations, rules or orders (categories (i) through (v), each a “Prohibited Purchaser”). The Purchaser (A) agrees to provide the Company, promptly upon request, all information that the Company reasonably deems necessary or appropriate to comply with applicable U.S. anti-money laundering, anti-terrorist and asset control Laws, regulations, rules and orders and (B) consents to the disclosure to U.S. regulators and law enforcement authorities by the Company and its Affiliates and agents of such information about the Purchaser as the Company reasonably deems necessary or appropriate to comply with applicable U.S. anti-money laundering, anti-terrorist and asset control Laws, regulations, rules and orders. If the Purchaser is a financial institution that is subject to the USA Patriot Act, the Purchaser represents that it has met all of its obligations under the USA Patriot Act. The Purchaser acknowledges that if, following its investment in the Company, the Company reasonably believes that the Purchaser is a Prohibited Purchaser or is otherwise engaged in suspicious activity or refuses to promptly provide information that the Company requests, the Company has the right or may be obligated to prohibit additional investments, segregate the assets constituting the investment in accordance with applicable regulations or immediately require the Purchaser to transfer the Securities. The Purchaser further acknowledges that neither the Purchaser nor any of the Purchaser’s Affiliates or agents will have any claim against the Company for any form of damages as a result of any of the Program Documents or prevent the consummation of any of the Transactionsforegoing actions.
(vii) No consentIf the Purchaser is an Affiliate of a non-U.S. banking institution (a “Foreign Bank”), approvalor if the Purchaser receives deposits from, authorization makes payments on behalf of, or order of any courthandles other financial transactions related to a Foreign Bank, regulatory bodythe Purchaser represents and warrants to the Company that: (1) the Foreign Bank has a fixed address, administrative agencyother than solely an electronic address, governmental body or arbitrator in a country in which the Foreign Bank is required for authorized to conduct banking activities; (2) the execution or delivery Foreign Bank maintains operating records related to its banking activities; (3) the Foreign Bank is subject to inspection by the Purchaser of banking authority that licensed the Foreign Bank to conduct banking activities; and (4) the Foreign Bank does not provide banking services to any of the Program Documents, the performance by the Purchaser of its obligations hereunder or the consummation by the Purchaser of other Foreign Bank that does not have a physical presence in any of the Transactionscountry and that is not a regulated Affiliate.
(viij) The Purchaser or its duly authorized representative realizes that because of the inherently speculative nature of businesses of the kind conducted and contemplated by the Company, the Company’s financial results may be expected to fluctuate from month to month and from period to period and will, generally, involve a high degree of financial and market risk that could result in substantial or, at times, even total losses for investors in securities of the Company. The Purchaser has considered the risk factors in the SEC Documents before deciding to invest in the Securities.
(k) The Purchaser is not dealt with subscribing for Shares as a result of or subsequent to any brokeradvertisement, investment bankerarticle, agent notice or other Personcommunication, except published in any newspaper, magazine or similar media or broadcast over television, radio, or the Sellerinternet, who may be entitled or presented at any seminar or meeting, or any solicitation of a subscription by a person not previously known to any commission or compensation the Purchaser in connection with investments in securities generally.
(l) The Purchaser acknowledges that no U.S. federal or state agency or any other government or governmental agency has passed upon the purchase Securities or made any finding or determination as to the fairness, suitability or wisdom of any investments therein.
(m) Other than consummating the transactions contemplated hereunder, the Purchaser has not directly or indirectly, nor has any individual or entity acting on behalf of or pursuant to any understanding with the Purchaser, executed any purchases or sales, including Short Sales (as defined below), of the Mortgage Loanssecurities of the Company during the period commencing at the time the Purchaser was first contacted by the Company or any other individual or entity representing the Company (including one or more of the Placement Agents) regarding the transactions contemplated hereunder. Notwithstanding the foregoing, in the case of the Purchaser being a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of the Purchaser’s assets and the portfolio managers do not communicate or share information with, and have no direct knowledge of the investment decisions made by, the portfolio managers managing other portions of the Purchaser’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement. Notwithstanding the foregoing, for avoidance of doubt, nothing contained herein shall constitute a representation or warranty, or preclude any actions, with respect to the identification of the availability of, or securing of, available shares to borrow in order to effect Short Sales or similar transactions in the future. For purposes of this Agreement, “Short Sales” means all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act (but shall not be deemed to include the location and/or reservation of borrowable shares of Common Stock).
Appears in 1 contract
Representations, Warranties and Agreements of the Purchaser. The Purchaser represents and warrants to, and agrees with, the Company, as of each Closing, the following:
(a) The Purchaser, without conceding that any Mortgage Loans are securities, hereby makes Purchaser has the following representations, warranties and agreements, which shall have been deemed to have been made as of the respective Closing Date:
(i) The Purchaser is acquiring the Mortgage Loans for its own account only and not for any other Person.
(ii) The Purchaser considers itself a substantial, sophisticated institutional investor having such knowledge and experience in financial and business matters that it is capable of evaluating necessary to evaluate the merits and risks of its prospective investment in the Mortgage Loans.
(iii) Company, and has carefully reviewed and understands the risks of, and other considerations relating to, the purchase of the Securities and the tax consequences of the investment. The Purchaser has been furnished with all information regarding the Mortgage Loans which it has requested.
(iv) Neither the Purchaser nor anyone acting on its behalf has offered, transferred, pledged, sold or otherwise disposed of any Mortgage Loan, any interest in any Mortgage Loan or any other similar security to, or solicited any offer to buy or accept a transfer, pledge or other disposition of any Mortgage Loan, any interest in any Mortgage Loan or any other similar security from, or otherwise approached or negotiated with respect to any Mortgage Loan, any interest in any Mortgage Loan or any other similar security with, any person in any manner, or made any general solicitation by adequate means of general advertising or in any other mannerproviding for its current and anticipated financial needs and contingencies, or taken any other action that would constitute a distribution and is able to bear the economic risks of the Mortgage Loans under the Securities Act investment for an indefinite period of 1933, as amended (the "Securities Act"), or that would render the disposition of any Mortgage Loan a violation of Section 5 time and has no need for liquidity of the Securities Act or require registration pursuant thereto, nor will it act, nor has it authorized or will it authorize any person to act, investment in such manner with respect to the Mortgage LoansSecurities. The Purchaser can afford the loss of its entire investment.
(b) The Purchaser is acquiring the Securities for investment for its own account and not with the view to, or for resale in connection with, any distribution thereof. The Purchaser understands and acknowledges that the offering and sale of the Securities have not been registered under the Securities Act or any state securities laws, by reason of a specific exemption from the registration provisions of the Securities Act and applicable state securities laws, which depends upon, among other things, the bona fide nature of the investment intent as expressed herein. The Purchaser further represents that it does not have any contract, undertaking, agreement or arrangement with any person to sell, transfer or grant participation to any third person with respect to any of the Securities, other than with respect to an Affiliate of the Purchaser. The Purchaser is an “accredited investor” as defined in Rule 501 of Regulation D as promulgated by the SEC under the Securities Act, and warrants the Purchaser shall submit to the Seller that as of the date hereof, as of the date of each respective Purchase Price and Terms Letter and as of each respective Closing Date (or as Company such further assurances of such other date or dates status as may be expressly reasonably requested by the Company. The Purchaser has not taken any of the actions set forth below):in, and is not subject to, the disqualification provisions of Rule 506(d)(1) of the Securities Act.
(c) The Purchaser represents that (i) The Purchaser it was not formed for the specific purpose of acquiring the Securities, (ii) it is duly organized, validly existing and in good standing as a corporation under the laws of the Maryland. The Purchaser jurisdiction of its organization, (iii) the consummation of the transactions contemplated hereby is authorized by, and will not result in a violation of applicable law or its charter or other organizational documents, (iv) it has full power and authority to execute and deliver each Transaction Document and to carry out the provisions thereof and to purchase and hold the Securities, (corporate v) the execution and otherwise) to enter into and perform its obligations under delivery of each Transaction Document by the Program Documents.
(ii) This Agreement, the Master Servicing Agreement and the Custodial Letter Agreement each Purchaser has been duly authorizedauthorized by all necessary action, and (vi) each Transaction Document has been duly executed and delivered by on behalf of the Purchaser, Purchaser and each constitutes the is a legal, valid and binding agreement obligation of the Purchaser, enforceable against . The execution and delivery of each Transaction Document by the Purchaser in accordance with its terms.
(iii) As of the date the respective Purchase Price and Terms Letter and as of the respective Closing Date, the Purchase Price and Terms Letter has been duly authorized, executed and delivered by the Purchaser, and the Purchase Price and Terms Letter constitutes the legal, valid and binding agreement of the Purchaser, enforceable against the Purchaser in accordance with its terms.
(iv) Neither the delivery of the Purchase Price to the Seller, nor the purchase of the Mortgage Loans by the Purchaser, nor the execution or delivery of the Program Documents, nor the consummation of any of the Transactions herein or therein contemplated, nor the fulfillment of the terms hereof or thereof, will result in the breach of any term or provision of the charter or by-laws of the Purchaser, does not violate or conflict withwith any order, result in a breachjudgment, violation or acceleration of or constitute a default under a material term of any indenture or other injunction, agreement or instrument controlling document to which the Purchaser is a party or by which it is bound.
(d) The Purchaser understands that the Securities are being offered and sold to it in reliance on specific exemptions from the registration requirements of United States federal and state securities laws and that the Company is relying in part upon the truth and accuracy of, and the Purchaser’s compliance with, the representations, warranties, agreements, acknowledgments and understandings of the Purchaser set forth herein in order to determine the availability of such exemptions and the eligibility of the Purchaser to acquire such securities. The Purchaser further acknowledges and understands that the Company is relying on the representations and warranties made by the Purchaser hereunder and that such representations and warranties are a material inducement to the Company to sell the Securities to the Purchaser. The Purchaser further acknowledges that without such representations and warranties of the Purchaser made hereunder, the Company would not enter into the Transaction Documents with the Purchaser.
(e) The Purchaser understands that, other than as provided in the Registration Rights Agreement, the Company does not currently intend to register the Securities under the Securities Act at any time in the future; and the undersigned will not immediately be entitled to the benefits of Rule 144 with respect to the Securities. The Purchaser understands that there can be no assurance that any public market for the Common Stock will exist or continue to exist. The Company makes no representation or warranty with respect to the continued quotation of the Common Stock on the OTC Markets QX tier or listing on any other market or exchange.
(f) The Purchaser has received, reviewed and understood the information about the Company provided to it by the Company and has had an opportunity to discuss the Company’s business, management and financial affairs with the Company’s management. The Purchaser understands that such discussions, as well as any information provided by the Company, were intended to describe the aspects of the Company’s business and prospects which the Company believes to be material, but were not necessarily a thorough or exhaustive description, and except as expressly set forth in this Agreement, the Company makes no representation or warranty with respect to the completeness of such information and makes no representation or warranty of any kind with respect to any information provided by anyone other than the Company. Some of such information may include projections as to the future performance of the Company, which projections may not be realized, may be based on assumptions which may not be correct and may be subject to numerous factors beyond the Company’s control. The Purchaser acknowledges that it is not relying upon any person or entity, other than the Company and its officers and directors, in making its investment or decision to invest in the Company. Additionally, the Purchaser understands and represents that he, she or it is purchasing the Securities notwithstanding the fact that the Company may disclose in the future certain material information the Purchaser has not received, including financial statements of the Company for the current or prior fiscal periods, and any subsequent period financial statements that will be filed with the SEC, that it is not relying on any such information in connection with its purchase of the Securities and that it waives any right of action with respect to the nondisclosure to it prior to its purchase of the Securities of any such information, in each case, without waiving or otherwise limiting any right or claim the Purchaser may have hereunder. The Purchaser has sought such accounting, legal and tax advice as the Purchaser has considered necessary to make an informed investment decision with respect to its acquisition of the Securities.
(g) The Purchaser acknowledges that the Company is not acting as a financial advisor or fiduciary of the Purchaser (or in any similar capacity) with respect to the Transaction Documents and the transactions contemplated thereby, and no investment advice has been given by the Company or any of its representatives or agents in connection with the Transaction Documents and the transactions contemplated thereby. The Purchaser further represents to the Company that the Purchaser’s decision to enter into each Transaction Document has been based solely on the independent evaluation by the Purchaser and the Purchaser’s representatives and the representations and warranties made by the Company in Section 2 hereof.
(h) As of the First Closing, all actions on the part of Purchaser, and its officers, directors and partners, if applicable, necessary for the authorization, execution and delivery of each Transaction Document and the performance of all obligations of the Purchaser thereunder shall have been taken, and each Transaction Document, assuming due execution by the parties thereto, constitutes a valid and legally binding obligation of the Purchaser, enforceable in accordance with its terms, subject to: (i) judicial principles limiting the availability of specific performance, injunctive relief, and other equitable remedies and (ii) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect generally relating to or affecting creditors’ rights.
(i) Neither the Purchaser nor, to its knowledge, any person or entity controlled by the Purchaser: (i) is a person listed in the Annex to Executive Order No. 13224 (2001) issued by the President of the United States (Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism); (ii) is named on the List of Specially Designated Nationals and Blocked Persons maintained by the U.S. Office of Foreign Assets Control; (iii) is a non-U.S. shell bank or is providing banking services indirectly to a non-U.S. shell bank; (iv) is a senior non-U.S. political figure or an immediate family member or close associate of such figure; or (v) is otherwise prohibited from investing in the Company pursuant to applicable U.S. anti-money laundering, anti-terrorist and asset control laws, regulations, rules or orders (categories (i) through (v), each a “Prohibited Purchaser”). The Purchaser (i) agrees to provide the Company, promptly upon request, all information that the Company reasonably deems necessary or appropriate to comply with applicable U.S. anti-money laundering, anti-terrorist and asset control laws, regulations, rules and orders and (ii) consents to the disclosure to U.S. regulators and law enforcement authorities by the Company and its Affiliates and agents of such information about the Purchaser as the Company reasonably deems necessary or appropriate to comply with applicable U.S. anti-money laundering, anti-terrorist and asset control laws, regulations, rules and orders. If the Purchaser is bound, or any statute, order or regulation of any court, regulatory body, administrative agency, governmental body or arbitrator.
(v) There are no actions, proceedings or investigations pending or, a financial institution that is subject to the USA Patriot Act, the Purchaser represents that it has met all of its obligations under the USA Patriot Act. The Purchaser acknowledges that if, following its investment in the Company, the Company reasonably determines that the Purchaser is a Prohibited Purchaser's knowledge, threatened the Company has the right or may be obligated to prohibit additional investments and segregate the assets constituting the investment in accordance with applicable regulations. The Purchaser further acknowledges that neither the Purchaser nor any of the Purchaser’s Affiliates or agents will have any claim against the Purchaser that, either in Company for any one instance or in the aggregate, could draw into question the validity form of damages as a result of any of the Program Documents or prevent the consummation of any of the Transactionsforegoing actions.
(vij) No consentIf the Purchaser is an Affiliate of a non-U.S. banking institution (a “Foreign Bank”), approvalor if the Purchaser receives deposits from, authorization makes payments on behalf of, or order of any courthandles other financial transactions related to a Foreign Bank, regulatory bodythe Purchaser represents and warrants to the Company that: (1) the Foreign Bank has a fixed address, administrative agencyother than solely an electronic address, governmental body or arbitrator in a country in which the Foreign Bank is required for authorized to conduct banking activities; (2) the execution or delivery Foreign Bank maintains operating records related to its banking activities; (3) the Foreign Bank is subject to inspection by the Purchaser of banking authority that licensed the Foreign Bank to conduct banking activities; and (4) the Foreign Bank does not provide banking services to any of the Program Documents, the performance by the Purchaser of its obligations hereunder or the consummation by the Purchaser of other Foreign Bank that does not have a physical presence in any of the Transactionscountry and that is not a regulated Affiliate.
(viik) The Purchaser or its duly authorized representative realizes that because of the inherently speculative nature of businesses of the kind conducted and contemplated by the Company, the Company’s future financial results may be expected to fluctuate from month to month and from period to period and will, generally, involve a high degree of financial and market risk that could result in substantial or, at times, even total losses for investors in securities of the Company. The Purchaser has carefully read the risk factors and other information (including the financial statements of the Company) included in the SEC Reports. The Purchaser has carefully considered such risk factors before deciding to invest in the Securities.
(l) The Purchaser is not dealt with subscribing for the Securities as a result of or subsequent to any brokeradvertisement, investment bankerarticle, agent notice or other Personcommunication, except published in any newspaper, magazine or similar media or broadcast over television, radio, or the Sellerinternet, who may be entitled or presented at any seminar or meeting, or any solicitation of a subscription by a person not previously known to any commission or compensation the Purchaser in connection with investments in securities generally.
(m) The Purchaser acknowledges that no U.S. federal or state agency or any other government or governmental agency has passed upon the purchase Securities or made any finding or determination as to the fairness, suitability or wisdom of any investments therein.
(n) Other than consummating the transactions contemplated hereunder, the Purchaser has not directly or indirectly, nor has any individual or entity acting on behalf of or pursuant to any understanding with the Purchaser, executed any purchases or sales, including Short Sales (as defined below), of the Mortgage Loanssecurities of the Company during the period commencing at the time Purchaser was first contacted by the Company or any other individual or entity representing the Company regarding the transactions contemplated hereunder. Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers do not communicate or share information with, and have no direct knowledge of the investment decisions made by, the portfolio managers managing other portions of such Purchaser’s assets, the representation set forth above shall only apply with respect to the portion of assets manage by, the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement. The Purchaser has maintained the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of this transaction). Notwithstanding the foregoing, for avoidance of doubt, nothing contained herein shall constitute a representation or warranty, or preclude any actions, with respect to the identification of the availability of, or securing of, available shares to borrow in order to effect Short Sales or similar transactions in the future. For purposes of this Agreement, “Short Sales” means all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act (but shall not be deemed to include the location and/or reservation of borrowable shares of Common Stock).
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