Acknowledgment Regarding Buyer’s Status The Company acknowledges and agrees that the Buyer is acting solely in the capacity of arm’s length purchaser with respect to the Transaction Documents and the transactions contemplated hereby and thereby. The Company further acknowledges that the Buyer is not acting as a financial advisor or fiduciary of the Company (or in any similar capacity) with respect to the Transaction Documents and the transactions contemplated hereby and thereby and any advice given by the Buyer or any of its representatives or agents in connection with the Transaction Documents and the transactions contemplated hereby and thereby is merely incidental to the Buyer’s purchase of the Securities. The Company further represents to the Buyer that the Company’s decision to enter into the Transaction Documents has been based solely on the independent evaluation by the Company and its representatives and advisors.
Acknowledgment of Seller Seller hereby acknowledges the provisions of this Agreement, including the obligations under Sections 2.1(a), 2.2, 2.3(b) and 8.11 of this Agreement and further acknowledges the Depositor's assignment of its rights and remedies for the breach of the representations and warranties made by the Seller under the MLPA. * * * * * *
Acknowledgment Regarding Buyer’s Purchase of the Convertible Debentures The Company acknowledges and agrees that the Buyer(s) is acting solely in the capacity of an arm’s length purchaser with respect to this Agreement and the transactions contemplated hereby. The Company further acknowledges that the Buyer(s) is not acting as a financial advisor or fiduciary of the Company (or in any similar capacity) with respect to this Agreement and the transactions contemplated hereby and any advice given by the Buyer(s) or any of their respective representatives or agents in connection with this Agreement and the transactions contemplated hereby is merely incidental to such Buyer’s purchase of the Convertible Debentures or the Conversion Shares. The Company further represents to the Buyer that the Company’s decision to enter into this Agreement has been based solely on the independent evaluation by the Company and its representatives.
Buyer’s Representations Buyer represents and warrants to, and covenants with, Seller as follows:
Buyer’s Investigation Buyer is an informed and sophisticated purchaser and is experienced in the evaluation and purchase of companies such as the Company and Spardee's Realty. Except for the environmental investigations described in Section 6.9 below, Buyer has undertaken such investigation as it has deemed necessary to enable it to make an informed and intelligent decision with respect to this Agreement, and Buyer acknowledges that the Seller Parties and the Company Group have allowed Buyer such access as has been reasonably requested by Buyer to the personnel, properties, premises and records of the Company Group for this purpose. To the extent expressly permitted hereafter under this Agreement, Buyer will undertake such further investigation as it deems necessary. Buyer acknowledges that in entering this Agreement, in acquiring the Shares and in consummating the other transactions contemplated herein, Buyer has relied solely upon its own investigation and analysis and, to the extent expressly permitted by this Agreement, the representations and warranties contained in this Agreement, and that none of the Seller Parties and the Company Group (and any of their respective agents, officers, directors, employees, Affiliates or representatives) has made any representation or warranty as to the Seller Parties, the Company Group, the Shares, this Agreement or the business of the Company Group except as expressly set forth in this Agreement, and Buyer agrees, to the fullest extent permitted by Law, that, except as expressly provided for herein or pursuant to the express provisions hereof, none of the Seller Parties (and any of their respective agents, officers, directors, employees, Affiliates or representatives) shall have any liability to Buyer (or any of its agents, officers, directors, employees, Affiliates or representatives) on any basis based upon any information made available or statements made to Buyer (or any of its agents, officers, directors, employees, Affiliates or representatives).
Acknowledgment Regarding Buyer’s Purchase of Securities The Company acknowledges and agrees that the Buyer is acting solely in the capacity of arm’s length purchaser with respect to this Agreement and the transactions contemplated hereby. The Company further acknowledges that the Buyer is not acting as a financial advisor or fiduciary of the Company (or in any similar capacity) with respect to this Agreement and the transactions contemplated hereby and any statement made by the Buyer or any of its respective representatives or agents in connection with this Agreement and the transactions contemplated hereby is not advice or a recommendation and is merely incidental to the Buyer’s purchase of the Securities. The Company further represents to the Buyer that the Company’s decision to enter into this Agreement has been based solely on the independent evaluation of the Company and its representatives.
Investigation by Buyer Buyer has conducted its own independent review and analysis of the business, operations, technology, assets, liabilities, results of operations, financial condition and prospects of the Companies and acknowledges that Sellers have provided Buyer with the access requested by Buyer to the personnel, properties, premises and records of the Companies for this purpose. In entering into this Agreement, Buyer has relied upon its own investigation and analysis as well as the representations and warranties of Sellers contained in this Agreement and the Ancillary Agreements, and Buyer (a) acknowledges that none of Sellers, the Companies or any of their respective directors, officers, employees, Affiliates, controlling Persons, agents or representatives makes or has made any representation or warranty, either express or implied, as to the accuracy or completeness of any of the information provided or made available to Buyer or its directors, officers, employees, Affiliates, controlling Persons, agents or representatives, and (b) agrees, to the fullest extent permitted by law, that neither Sellers, the Companies nor any of their respective directors, officers, employees, Affiliates, controlling Persons, agents or representatives shall have any liability or responsibility whatsoever to Buyer or its directors, officers, employees, Affiliates, controlling Persons, agents or representatives on any basis (including, without limitation, in contract or tort, under federal or state securities laws or otherwise) based upon any information provided or made available, or statements made, to Buyer or its directors, officers, employees, Affiliates, controlling Persons, agents or representatives (or any omissions therefrom), except in the case of clauses (a) and (b) as and only to the extent expressly set forth in this Agreement with respect to the representations and warranties of Sellers in Article III and subject to the limitations and restrictions contained in this Agreement.
Purchaser's Investment Representations Each Purchaser hereby represents (i) that it is acquiring the Restricted Securities purchased hereunder or acquired pursuant hereto for its own account with the present intention of holding such securities for purposes of investment, and that it has no intention of selling such securities in a public distribution in violation of the federal securities laws or any applicable state securities laws, (ii) that it is an "accredited investor" and a sophisticated investor for purposes of applicable U.S. federal and state securities laws and regulations, (iii) that this Agreement and each of the other agreements contemplated hereby constitutes (or will constitute) the legal, valid and binding obligation of each Purchaser, enforceable in accordance with its terms, except to the extent that enforceability may be limited by bankruptcy, insolvency or other similar laws affecting creditors' rights generally and (iv) that the execution, delivery and performance of this Agreement and such other agreements by such Purchaser does not and will not conflict with, violate or cause a breach of any agreement, contract or instrument to which such purchaser is subject. Notwithstanding the foregoing, nothing contained herein shall prevent such Purchaser and subsequent holders of Restricted Securities from transferring such securities in compliance with the provisions of SECTION 4 hereof. Each certificate for Restricted Securities shall be imprinted with a legend in substantially the following form: "THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY ISSUED ON [DATE OF ISSUANCE] AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THE TRANSFER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO THE CONDITIONS SPECIFIED IN THE PURCHASE AGREEMENT, DATED AS OF SEPTEMBER __, 2001 BY AND AMONG THE ISSUER (THE "COMPANY") AND CERTAIN INVESTORS, AND THE COMPANY RESERVES THE RIGHT TO REFUSE THE TRANSFER OF SUCH SECURITIES UNTIL SUCH CONDITIONS HAVE BEEN FULFILLED WITH RESPECT TO SUCH TRANSFER. A COPY OF SUCH CONDITIONS SHALL BE FURNISHED BY THE COMPANY TO THE HOLDER HEREOF UPON WRITTEN REQUEST AND WITHOUT CHARGE."
Securities Law Representations The Purchaser acknowledges that the Restricted Shares are not being registered under the Securities Act, based, in part, in reliance upon an exemption from registration under Rule 701 promulgated under the Securities Act, and a comparable exemption from qualification under applicable state securities laws, as each may be amended from time to time. The Purchaser, by executing this Agreement, hereby makes the following representations to the Company and acknowledges that the Company’s reliance on federal and state securities law exemptions from registration and qualification is predicated, in substantial part, upon the accuracy of these representations: • The Purchaser is acquiring the Restricted Shares solely for the Purchaser’s own account, for investment purposes only, and not with a view or an intent to sell, or to offer for resale in connection with any unregistered distribution, all or any portion of the shares within the meaning of the Securities Act and/or any applicable state securities laws. • The Purchaser is an “accredited investor”, as that term is defined in Rule 501(a)(1), (2) or (3) of Regulation D promulgated under the Securities Act. • The Purchaser has had an opportunity to ask questions and receive answers from the Company regarding the terms and conditions of the Restricted Shares. The Purchaser has been furnished with, and/or has access to, such information as the Purchaser considers necessary or appropriate for deciding whether to purchase the Restricted Shares. However, in evaluating the merits and risks of an investment in the Restricted Shares, the Purchaser has and will rely only upon the advice of the Purchaser’s own legal counsel, tax advisors, and/or investment advisors. • The Purchaser is aware that any value the Restricted Shares may have depends on their vesting and certain other factors, and that any investment in common shares of a closely held corporation such as the Company is non-marketable, non-transferable and could acquire capital to be invested for an indefinite period of time, possibly without return, and at substantial risk of loss. • The Purchaser understands that the Restricted Shares will be characterized as “restricted securities” under the federal securities laws, and that, under such laws and applicable regulations, such securities may be resold without registration under the Securities Act only in certain limited circumstances, including in accordance with the conditions of Rule 144 promulgated under the Securities Act, as presently in effect. The Purchaser acknowledges receiving a copy of Rule 144 promulgated under the Securities Act, as presently in effect, and represents that the Purchaser is familiar with such rule, and understands the resale limitations imposed thereby and by the Securities Act and the applicable state securities law. • The Purchaser has read and understands the restrictions, limitations and the Company’s rights set forth in the Management Investor Rights Agreement, the Plan and this Agreement that will be imposed on the Restricted Shares (including those restrictions and limitations which will continue after the Shares have vested). The Purchaser acknowledges that to the extent the Purchaser is not a party to the Management Investor Rights Agreement at the time that the Purchaser purchases the Restricted Shares, such purchase shall be treated for all purposes as effecting the Purchaser’s simultaneous execution of the Management Investor Rights Agreement and the Purchaser shall be bound thereby. • The Purchaser has not relied upon any oral representation made to the Purchaser relating to the Restricted Shares or upon information presented in any promotional meeting or material relating to the Restricted Shares. • The Purchaser understands and acknowledges that (a) any certificate evidencing the Restricted Shares (or evidencing any other securities issued with respect thereto pursuant to any stock split, stock dividend, merger or other form of reorganization or recapitalization) when issued shall bear any legends which may be required by applicable federal and state securities laws or the Management Investor Rights Agreement or the Plan, and (b) except as otherwise provided under the Management Investor Rights agreement, the Company has no obligation to register the Shares or file any registration statement under federal or state securities laws. The Committee reserves the right to account for Shares through book entry or other electronic means rather than the issuance of stock certificates.
Investigation by Purchaser Seller will (a) provide Purchaser and its officers, employees, counsel, accountants, financial advisors, potential lenders, Purchaser's and potential lenders' consultants and other representatives (collectively, "Representatives") with full access, upon reasonable prior notice and during normal business hours, to the Employees and such other officers, employees and agents of Seller who have any responsibility for the PSE Colstrip Interests, to Seller's accountants and, subject to the terms and conditions of the Colstrip Contracts, to the Assets (including, to the extent it is within Seller's power to do so, access to the Colstrip 1, 2, 3 and 4 site), but only to the extent that such access does not unreasonably interfere with Seller's business and the operation of the Assets, (b) make available to Purchaser and its Representatives, upon request, a copy of each report, schedule or other document filed or received by Seller between the Bid Date and the Closing with or from the SEC, FERC, EPA, WUTC or any other relevant Governmental or Regulatory Authority and relating to the ownership, operation and maintenance of the Assets or the transactions contemplated by this Agreement, and all such information and data (including copies of Business Contracts, Transferable Permits, Fuel Contracts, Colstrip Contracts, and other Books and Records) concerning the ownership, operation and maintenance of the PSE Colstrip Interests and the Assets and the Assumed Liabilities as Purchaser or its Representatives reasonably may request in connection with such investigation, except to the extent that furnishing any such report, schedule, other documents, information or data would violate any Law, Order (including any protective order or similar confidentiality obligation), Contract, License or Environmental Permit applicable to Seller or by which any of its Assets and Properties is bound. In furtherance of the foregoing, Seller agrees to cooperate with Purchaser in connection with Purchaser's efforts to obtain Purchaser Financing, as defined in Section 5.07. Seller's cooperation shall include the negotiation and execution of a consent with the lenders with respect to the Operative Agreements, which consent shall include providing such lenders with rights to cure a Purchaser default under the Operative Agreements; provided, however, that Seller shall not be obligated, in connection with such cooperation or consent, to take any action or enter into any agreement that would have any adverse effect on Seller or any of its rights or benefits under this Agreement or the Operative Agreements.
