PURCHASE AGREEMENT
Exhibit
99(k)(9)
THIS PURCHASE AGREEMENT (the “Agreement”) is entered into as of the 30th day of
June 2009 between The Xxxxxxx MLP Total Return Fund, a statutory trust organized and existing under
the laws of Delaware (the “Fund”), and Peak Financial Management, Inc., (the “Advisor”) on behalf
of certain accounts managed by the Advisor (the “Purchasers”).
INTRODUCTION
In consideration of the mutual representations, warranties, covenants, agreements and
conditions contained herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
AGREEMENT
1. Purchase and Sale.
1.1 Purchase and Sale. At the Closing, as defined in Section 1.2 below, the Advisor shall
purchase from the Fund on behalf of the Purchasers, and the Fund shall sell to the Advisor on
behalf of the Purchasers 826,090 common shares (the “Purchased Shares”) of beneficial interest, par
value $0.001, representing undivided beneficial interests in the Fund (the “Common Shares”) at a
price per Common Share of $5.85 for an aggregate purchase price of $4,832,626.50 (the “Purchase
Price”).
1.2 Closing. The settlement date of the purchase and sale of the Purchased Shares hereunder
(the “Closing”) shall be July 1, 2009, or at such other time upon which the parties shall agree
(the “Closing Date”). The Closing shall be effective upon the receipt by the parties of the
agreements, documents, instruments and consideration described in Section 1.3.
1.3 Deliveries at Closing. Settlement shall be through the delivery versus payment method of
settlement through the facilities of the Depository Trust Company whereby release of the Purchased
Shares by the Fund shall occur simultaneously with receipt of the Purchase Price by the Fund. Wire
instructions and account information for delivery of the Purchase Price and the Purchased Shares
shall be provided by the respective parties in advance of Closing.
2. Representations and Warranties.
2.1 Advisor’s Representations and Warranties. The Advisor represents and warrants to the
Fund:
2.1.1 Authority; Enforceability. The Advisor has all requisite power and authority to execute
and deliver this Agreement on behalf of each Purchaser and to act on behalf of each Purchaser in
connection with the transactions contemplated hereby. The Advisor and each Purchaser have all
requisite power and authority to enter into this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery by the Advisor of
this Agreement and the consummation of the transactions contemplated hereby have been duly
authorized by all necessary actions on the part of the Advisor and each Purchaser. This
Agreement has been duly executed and delivered by the Advisor on behalf of each Purchaser and
constitutes a valid and binding obligation of the Advisor and each Purchaser enforceable in
accordance with its terms, except that such enforceability may be subject to (i) bankruptcy,
insolvency, reorganization, or other similar laws relating to enforcement of creditors’ rights
generally and (ii) general equitable principles.
2.1.2 Restrictions. Each Purchaser is purchasing the Purchased Shares for investment purposes
only and does not intend to immediately re-sell the Purchased Shares.
2.1.3 Ownership of Common Shares. As of the date hereof and prior to giving effect to the
acquisition of the Purchased Shares by each Purchaser at Closing, none of the Purchasers own,
directly or indirectly, in the aggregate more than 1% of the outstanding Common Shares.
2.2 Purchasers’ Representations and Warranties. The Advisor represents and warrants to the
Fund on behalf of each Purchaser:
2.2.1 Authority; Enforceability. Each Purchaser has all requisite power and authority to
enter into this Agreement and to consummate the transactions contemplated hereby. The execution
and delivery by the Advisor of this Agreement on behalf of each Purchaser and the consummation of
the transactions contemplated hereby have been duly authorized by all necessary actions on the part
of each Purchaser. This Agreement has been duly executed and delivered by the Advisor on behalf of
each Purchaser and constitutes a valid and binding obligation of each Purchaser enforceable in
accordance with its terms, except that such enforceability may be subject to (i) bankruptcy,
insolvency, reorganization, or other similar laws relating to enforcement of creditors’ rights
generally and (ii) general equitable principles.
2.2.2 Restrictions. Each Purchaser is purchasing the Purchased Shares for investment purposes
only and does not intend to immediately re-sell the Purchased Shares.
2.2.3 Ownership of Common Shares. As of the date hereof and prior to giving effect to
acquisition of the Purchased Shares by each Purchaser at Closing, none of the Purchasers own,
directly or indirectly, in the aggregate more than 1% of the outstanding Common Shares.
2.3 Fund’s Representations and Warranties. The Fund represents and warrants to the Advisor
and each Purchaser as follows:
2.3.1 Authority; Enforceability. The Fund has all requisite power and authority to enter into
this Agreement and to consummate the transactions contemplated hereby. The execution and delivery
by the Fund of this Agreement and the consummation of the transactions contemplated hereby have
been duly authorized by all necessary actions on the part of the Fund. This Agreement has been
duly executed and delivered by the Fund and constitutes a valid and binding obligation of the Fund
enforceable in accordance with its terms, except that such enforceability may be subject to (i)
bankruptcy, insolvency, reorganization, or other similar laws relating to enforcement of creditors’
rights generally and (ii) general equitable principles.
3. Survival of Representations and Warranties. All representations, warranties, agreements and
covenants contained in this Agreement shall survive the Closing.
4. Miscellaneous.
4.1 Entire Agreement. This Agreement represents the entire agreement among the parties with
respect to the transactions contemplated herein and supersedes all prior agreements, written or
oral, with respect thereto. This Agreement may be amended only by an instrument that is executed
and authorized by each party affected by such amendment.
4.2 Expenses. Without limiting Section 4.6, the Advisor, each Purchaser and the Fund will
each pay its own respective expenses, including attorneys’ fees, in connection with the negotiation
of this Agreement, the performance of its obligations hereunder, and the consummation of the
transactions contemplated by this Agreement.
4.3 Successors and Assigns. This Agreement and all of the provisions hereof will be binding
upon and inure to the benefit of the parties hereto and their respective successors and permitted
assigns; provided, however, that neither this Agreement nor any of the rights, interests or
obligations hereunder may be assigned by any party without the prior written consent of each other
party, except that the Shares may be transferred by the Advisor and each Purchaser without the
consent of the Fund.
4.4 Governing Law. This Agreement shall be governed by, and construed in accordance with, the
laws of the State of Texas, without giving effect to the choice of law principles thereof.
4.5 Nonwaiver. The failure of any party to insist upon strict adherence to any one or more of
the covenants and restrictions in this Agreement, on one or more occasion, shall not be construed
as a waiver, nor deprive such party of the right to require strict compliance thereafter with the
same. All waivers must be in writing and signed by the waiving party.
4.6 Attorneys’ Fees and Expenses. In any suit or action brought to enforce this Agreement, or
to obtain an adjudication, declaratory or otherwise, of rights hereunder, the losing party shall
pay to the prevailing party reasonable attorneys’ fees and all other costs and expenses that may be
incurred by the prevailing party in such action. The foregoing shall be in addition to, and shall
not limit, any other rights that the non-breaching party may have against the breaching party at
law or in equity.
4.7 Notices. Any notice required or permitted to be given under the terms of this Agreement
shall be sent by certified or registered mail (return receipt requested) or delivered personally or
by courier (including a recognized overnight delivery service) or by facsimile and shall be
effective five days after being placed in the mail, if mailed by regular U.S. mail, or upon
receipt, if delivered personally or by courier (including a recognized overnight delivery service)
or by facsimile, in each case addressed to a party. The addresses for such communications shall
be:
If to the Fund:
The Xxxxxxx MLP Total Return Fund
0000 Xxx Xxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxx X. Minces
Facsimile: (000) 000-0000
The Xxxxxxx MLP Total Return Fund
0000 Xxx Xxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxx X. Minces
Facsimile: (000) 000-0000
If to the Advisor or any Purchaser:
Peak Financial Management, Inc.
000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
Each party shall provide notice to the other of any changes in address.
4.8 Counterparts. This Agreement may be executed in any number of counterparts, each of which
when so executed and delivered shall be an original, but all of which shall constitute one and the
same instrument. It shall not be necessary in making proof of this Agreement to produce or account
for more than one such counterpart. Each counterpart may consist of a number of copies hereof,
each signed by less than all, but together signed by all, of the parties hereto.
4.9 Severability. The provisions of this Agreement shall be deemed severable and the
invalidity or unenforceability of any provision shall not affect the validity or enforceability of
the other provisions hereof. If any provision of this Agreement, or the application thereof to any
person or entity or any circumstance, is invalid or unenforceable, (a) a suitable and equitable
provision shall be substituted therefor in order to carry out, so far as may be valid and
enforceable, the intent and purpose of such invalid or unenforceable provision and (b) the
remainder of this Agreement and the application of such provision to other persons, entities or
circumstances shall not be affected by such invalidity or unenforceability, nor shall such
invalidity or unenforceability affect the validity or enforceability of such provision, or the
application thereof, in any other jurisdiction.
4.10 Construction. Each covenant contained herein shall be construed (absent express
provision to the contrary) as being independent of each other covenant contained herein, so that
compliance with any one covenant shall not (absent such an express contrary provision) be deemed to
excuse compliance with any other covenant. Where any provision herein refers to action to be taken
by any person, or which such person is prohibited from taking, such provision shall be applicable
whether such action is taken directly or indirectly by such person, whether or not expressly
specified in such provision. The construction of this Agreement shall not be affected by which
party drafted this Agreement.
4.11 Headings. The headings of the sections and subsections hereof are provided for
convenience only and shall not in any way affect the meaning or construction of any provision of
this Agreement.
4.12 Further Assurances. In connection with this Agreement and the transactions contemplated
herein, the parties to this Agreement shall execute and deliver any additional documents and
instruments and perform any additional acts that may be necessary or appropriate to effectuate and
perform the provisions of this Agreement and such transactions.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
mentioned above.
| THE XXXXXXX MLP TOTAL RETURN FUND | ||||
By: |
/s/ Xxxx Xxxxxxx | |||
Name:
|
Xxxx Xxxxxxx
|
|||
Title: |
Chief Financial Officer | |||
| PEAK FINANCIAL MANAGEMENT, INC. | ||||
By: |
/s/ Xxxx X. Xxxx | |||
| Title: President |
