EXHIBIT-99.02
SUBSCRIPTION AGREEMENT
FOR
SW ACQUISITION, L.P.
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THE LIMITED PARTNERSHIP INTERESTS REFERRED TO HEREIN HAVE NOT BEEN
REGISTERED, QUALIFIED, APPROVED OR DISAPPROVED UNDER ANY FEDERAL OR STATE
SECURITIES LAWS, NOR HAS THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION OR
ANY OTHER FEDERAL OR STATE REGULATORY AUTHORITY PASSED ON OR ENDORSED THE MERITS
OF THE OFFERING OF SUCH INTERESTS. ANY REPRESENTATION TO THE CONTRARY IS
UNLAWFUL. THE LIMITED PARTNERSHIP INTERESTS REFERRED TO HEREIN ARE SUBJECT TO
RESTRICTIONS ON TRANSFER SET FORTH IN THE AGREEMENT OF LIMITED PARTNERSHIP OF SW
ACQUISITION, L.P. DATED AS OF MAY 24, 1999 AND THE LIMITED PARTNERSHIP INTERESTS
MAY NOT BE SOLD, TRANSFERRED, OR OTHERWISE DISPOSED OF BY AN INVESTOR UNLESS
THEY ARE REGISTERED UNDER FEDERAL SECURITIES LAWS AND, WHERE REQUIRED, UNDER THE
LAWS OF OTHER JURISDICTIONS, UNLESS SUCH PROPOSED SALE, TRANSFER OR DISPOSITION
IS EXEMPT FROM SUCH REGISTRATION. EXCEPT AS SET FORTH IN THE AGREEMENT OF
LIMITED PARTNERSHIP, THERE IS NO OBLIGATION OF THE ISSUER TO REGISTER THE
LIMITED PARTNERSHIP INTERESTS. ACCORDINGLY, A PURCHASER OF A LIMITED PARTNERSHIP
INTEREST MUST BE PREPARED TO BEAR THE ECONOMIC RISK OF THE INVESTMENT FOR AN
INDEFINITE PERIOD OF TIME.
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SW Acquisition, L.P.
0 Xxxxxxx Xxxx
Xxxxx 000
Xxxxxxx, XX 00000
Ladies and Gentlemen:
The undersigned is executing this Agreement in connection with
its subscription for a limited partnership interest (an "Interest") in SW
Acquisition GP, L.P. (the "Partnership"), a Texas limited partnership in which
SW I Acquisition, L.P., a Texas limited partnership, is the general partner (the
"General Partner"). The undersigned understands that the Partnership and the
General Partner are relying upon the accuracy and completeness of the
information contained herein in complying with their obligations under federal
and state securities and other applicable laws. Capitalized terms used but not
defined herein have the same meanings as in the Agreement of Limited Partnership
of the Partnership, dated as of May 24, 1999 (the "Partnership Agreement"), a
copy of which is attached as Exhibit A hereto.
The undersigned hereby irrevocably agrees with, and represents
and warrants to and for the benefit of, the Partnership, the General Partner and
the limited partners in the Partnership (the "Limited Partners") as follows:
1. Subscription.
(a) Subject to the terms and conditions of this Agreement, the
undersigned hereby irrevocably subscribes for Interests in the Partnership and
agrees to make an aggregate Capital Contribution (the "Aggregate Capital
Contribution") to the Partnership in respect thereof in the amount set forth on
the signature page hereof and agrees (i) to become a Limited Partner and (ii) to
pay such Aggregate Capital Contributions to the Partnership in accordance with
the terms of the Partnership Agreement and this Agreement. Upon the execution of
this Agreement and the Partnership Agreement, the undersigned is paying to the
Partnership an amount equal to .0001% of the Aggregate Capital Contribution. At
the closing of the merger under the merger agreement (the "Closing"), the
undersigned shall make an additional Capital Contribution to the Partnership of
an amount equal to 99.999% of the Aggregate Capital Contribution, less any
Capital Contributions made pursuant to paragraph (b) below.
(b) To the extent that, from time to time prior to the
Closing, the General Partner notifies the undersigned, together with all other
Partners, that the Partnership has incurred actual reasonable out-of-pocket
expenses (the "Expenses"), in connection with (i) obtaining the insurance
required by Section 8.8(c) of the Partnership Agreement, (ii) leasing office
space for the General Partner, and reasonable overhead expenses in connection
therewith, and (iii) payments to unrelated third parties in connection with
satisfying the conditions under the financing agreements entered into in
connection with the Merger Agreement, the undersigned will make an additional
Capital Contribution (an "Expense Capital Contribution") to the Partnership,
within five days of such notice, in an amount equal to its pro rata portion
(based on the relative actual Capital Contributions of all Partners) of the
Expenses, and any such Expense Capital Contribution shall be treated as an
advance payment of a portion of the Aggregate Capital Contribution required to
be paid at the Closing pursuant to paragraph (a); provided that the aggregate
Capital Contributions required to be made by all Partners for such Expenses
shall in no event exceed $600,000; provided further that in no event shall any
such Expense Capital Contribution increase the Aggregate Capital Contribution
which the undersigned has agreed to make under this Agreement.
(c) The undersigned herewith tenders two signed copies of this
Agreement and an executed signature page of the Partnership Agreement.
2. General Partner Acceptance. Upon acceptance of this Agreement by the
General Partner, this Agreement shall become a binding agreement between the
Partnership and the undersigned and the General Partner shall deliver one
original fully executed copy of this Agreement and a fully executed copy of the
Partnership Agreement to the undersigned.
3. Other Subscription Agreements. The Partnership has heretofore
entered into, and expects to enter into, separate but substantially identical
subscription agreements (the "Other Subscription Agreements" and, together with
this Agreement, the "Subscription Agreements") with other purchasers (the "Other
Purchasers"), providing for the subscription by the Other Purchasers of
Interests for an aggregate Capital Contribution to the Partnership of
$100,000,000 (including the Capital Contributions subscribed for hereunder).
This Agreement and the Other Subscription Agreements are separate and several
agreements, and the sales of Interests to the undersigned and to the Other
Purchasers are to be separate and several sales.
4. Representations and Warranties of the General Partner and the
Partnership. The General Partner and the Partnership hereby represent and
warrant to the undersigned that the following statements are true and correct as
of the date hereof (unless another date is specified) with respect to the
General Partner and the Partnership, as applicable:
(a) Organization and Qualification. Each of the Partnership
and the General Partner is duly formed, validly existing and in good
standing under the laws of the State of Texas and has full power and
authority to conduct its business as and to the extent now conducted
and to own, use and lease its assets and properties, except for such
failures to be so formed, existing and in good standing or to have such
power and authority which, individually or in the aggregate, are not
having and could not be reasonably expected to have a material adverse
effect (as defined in the Merger Agreement) on the General Partner or
on the Partnership and its subsidiaries taken as a whole. Each of the
Partnership and the General Partner was formed solely for the purpose
of engaging in the transactions contemplated by the Partnership
Agreement and Merger Agreement, has engaged in no other business
activities and has conducted its operations only as contemplated
thereby.
(b) Authority. Each of the Partnership and the General Partner
(in its capacity as such) has the requisite partnership, power and
authority to execute this Agreement, the Partnership Agreement and the
Merger Agreement, to perform its obligations hereunder and thereunder
and to consummate the transactions contemplated hereby and thereby.
Except as set forth in the Merger Agreement, the execution, delivery
and performance of this Agreement, the Partnership Agreement and the
Merger Agreement by each of the Partnership and the General Partner (in
its capacity as such) and the consummation by each of the Partnership
and the General Partner of the transactions contemplated hereby and
thereby have been duly and validly approved by all necessary
partnership action and by the General Partner (in its capacity as
such), and no other proceedings on the part of the Partnership or the
General Partner are necessary to authorize the execution, delivery and
performance of this Agreement, the Partnership Agreement or the Merger
Agreement by the Partnership and the General Partner and the
consummation by the Partnership and the General Partner of the
transactions contemplated hereby and thereby. Each of this Agreement,
the Partnership Agreement and the Merger Agreement has been duly and
validly executed and delivered by each of the Partnership and the
General Partner (in its capacity as such), as applicable, and, assuming
the due authorization, execution and delivery thereof by the other
parties thereto, constitutes a legal, valid and binding obligation of
each of the Partnership and the General Partner enforceable against
each of the Partnership and the General Partner in accordance with its
terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
the enforcement of creditors' rights generally and by general equitable
principles (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
(c) Non-Contravention; Approvals and Consents. (i) The
execution and delivery of this Agreement, the Partnership Agreement and
the Merger Agreement by each of the Partnership and the General Partner
(in its capacity as such) do not, and the performance by each of the
Partnership and the General Partner (in its capacity as such) of its
obligations hereunder and thereunder and the consummation of the
transactions contemplated hereby and thereby will not, conflict with,
result in a violation or breach of, constitute (with or without notice
or lapse of time or both) default under, result in or give to any
person any right of payment or reimbursement, termination,
cancellation, modification or acceleration of, or result in the
creation or imposition of any Lien (as defined in the Merger Agreement)
upon any of the assets or properties of the General Partner or of the
Partnership or any of the Partnership's subsidiaries under, any of the
terms, conditions or provisions of (1) the certificate of formation of
the Partnership or the General Partner or the certificates or articles
of incorporation or bylaws (or other comparable charter documents) of
any of the Partnership's subsidiaries, or (2) subject to the taking of
the actions described in paragraph (ii) of this Section, (x) any laws
existing on the date hereof or orders of any Governmental or Regulatory
Authority (as defined in the Merger Agreement) applicable to the
Partnership or any of the Partnership's subsidiaries or any of their
respective assets or properties, or (y) any Contracts to which the
General Partner or the Partnership or any of the Partnership's
subsidiaries is a party or by which the General Partner or the
Partnership or any of Partnership's subsidiaries or any of their
respective assets or properties is bound, excluding from the foregoing
clauses (x) and (y) conflicts, violations, breaches, defaults,
terminations, modifications, accelerations and creations and
impositions of Liens which, individually or in the aggregate, could not
be reasonably expected to have a material adverse effect on the ability
of the Partnership and the General Partner to consummate the
transactions contemplated by this Agreement or the Merger Agreement.
(ii) Except for the approvals required in connection with the
Merger as described in the Merger Agreement, no consent, approval or
action of, filing with or notice to any Governmental or Regulatory
Authority or other public or private third party is necessary or
required under any of the terms, conditions or provisions of any law or
order of any Governmental or Regulatory Authority or any Contract to
which the General Partner or the Partnership or any of the Partnership
subsidiaries is a party or by which the General Partner or the
Partnership or any of the Partnership's subsidiaries or any of their
respective assets or properties is bound for the execution and delivery
of this Agreement or the Merger Agreement by each of the General
Partner and the Partnership, the performance by each of the General
Partner and the Partnership of its obligations hereunder or thereunder
or the consummation of the transactions contemplated hereby and
thereby, other than such consents, approvals, actions, filings and
notices which the failure to make or obtain, as the case may be,
individually or in the aggregate, could not be reasonably expected to
have a material adverse effect on the ability of the General Partner
and the Partnership to consummate the transactions contemplated by this
Agreement, the Partnership Agreement or the Merger Agreement.
(d) Legal Proceedings. There are no actions, suits,
arbitrations or proceedings pending or, to the knowledge of the General
Partner or the Partnership, threatened against, relating to or
affecting, nor to the knowledge of the General Partner or the
Partnership are there any Governmental or Regulatory Authority (as
defined in the Merger Agreement) investigations or audits pending or
threatened against, relating to or affecting, the Partnership or any of
its subsidiaries or any of their respective assets and properties
which, individually or in the aggregate, could be reasonably expected
to have a material adverse effect on the ability of the Partnership to
consummate the transactions contemplated by this Agreement, the
Partnership Agreement or the Merger Agreement, and neither the
Partnership nor any of its subsidiaries is subject to any order of any
Governmental or Regulatory Authority which, individually or in the
aggregate, could be reasonably expected to have a material adverse
effect on the ability of the Partnership to consummate the transactions
contemplated by this Agreement, the Partnership Agreement or the Merger
Agreement.
(e) Offer of Interests. None of the General Partner, the
Partnership or any agent acting on behalf of the General Partner or the
Partnership has, directly or indirectly, offered the Interests or
solicited an offer to acquire the Interests from any person so as to
require registration of the issuance and sale of the Interests sold to
the undersigned or the Other Purchasers under the provisions of Section
5 of the Securities Act of 1933, as amended (the "Act"). Assuming the
representations and warranties of the undersigned contained herein are
true and correct, the sale of the Interests under this Agreement is
exempt from the registration and prospectus delivery requirements of
the Act. No form of general solicitation or general advertising was
used by the Partnership or its representatives in connection with the
offer or sale of the Interests hereunder.
(f) Capitalization. On the date hereof, after giving effect to
the Initial Capital Contributions of all subscribers, the aggregate
capital of the Partnership is $1,000. After giving effect to the Other
Subscription Agreements and the transactions contemplated hereby, the
aggregate Capital Contributions to the Partnership will, upon
consummation of the transactions contemplated by the Merger Agreement,
be not less than $100,000,000. All of the Interests subscribed for
hereby will be validly issued, fully paid and nonassessable and, when
delivered by the Partnership on the Closing Date, shall be free and
clear of all liens, claims, options, charges or other security
interests or encumbrances.
(g) Holding Company Regulation. The Partnership is not, and as
a result of the consummation of the transactions contemplated by this
Agreement and the Merger Agreement, is not reasonably expected to be,
and, upon consummation of the Merger, the Surviving Corporation (as
defined in the Merger Agreement) is not reasonably expected to be
subject to regulation (i) as a registered public utility holding
company under Public Utility Holding Company Act of 1935, as amended
("PUHCA"), (ii) as a public utility holding company under (x) the New
Mexico Public Utility Act (other than under Section 62-6-12 thereof),
or (y) the Texas Public Utility Act or (iii) as a public utility under
the Federal Power Act (the "FPA").
5. Representations and Warranties of the Undersigned. The
undersigned hereby represents and warrants to the General Partner and the
Partnership as follows:
(a) Organization and Qualification. The undersigned is duly
organized or formed, validly existing and in good standing under the
laws of the state of its organization or formation, except for such
failures to be so formed, existing and in good standing which,
individually or in the aggregate, are not having and could not be
reasonably expected to have a material adverse effect on the
undersigned and its subsidiaries taken as a whole.
(b) Authority. The undersigned has the requisite power and
authority to enter into this Agreement and the Partnership Agreement,
to perform its obligations hereunder and thereunder and to consummate
the transactions contemplated hereby and thereby. The execution,
delivery and performance of this Agreement and the Partnership
Agreement by the undersigned and the consummation by the undersigned of
the transactions contemplated hereby and thereby have been duly and
validly approved by all necessary action, and no other proceedings on
the part of the undersigned are necessary to authorize the execution,
delivery and performance of this Agreement by the undersigned and the
consummation by the undersigned of the transactions contemplated hereby
and thereby. Each of this Agreement and the Partnership Agreement has
been duly and validly executed and delivered by the undersigned and,
assuming the due authorization, execution and delivery of this
Agreement and the Partnership Agreement by the Partnership and the
General Partner in its capacity as such, constitutes a legal, valid and
binding obligation of the undersigned enforceable against the
undersigned in accordance with their terms, except as enforceability
may be limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights
generally and by general equitable principles (regardless of whether
such enforceability is considered in a proceeding in equity or at law).
(c) Non-Contravention; Approvals and Consents.
(i) The execution and delivery of this Agreement and
the Partnership Agreement by the undersigned do not, and the
performance by the undersigned of its obligations hereunder
and thereunder and the consummation of the transactions
contemplated hereby and thereby will not, conflict with,
result in a violation or breach of, constitute (with or
without notice or lapse of time or both) default under, result
in or give to any person any right of payment or
reimbursement, termination, cancellation, modification or
acceleration of, or result in the creation or imposition of
any Lien upon any of the assets or properties of the
undersigned or any of the undersigned's subsidiaries under,
any of the terms, conditions or provisions of (1) the
certificates or articles of incorporation or bylaws (or other
comparable charter documents) of the undersigned or any of its
subsidiaries, or (2) subject to the taking of the actions
described in paragraph (ii) of this Section, (x) any laws
existing on the date hereof or orders of any Governmental or
Regulatory Authority applicable to the undersigned or any of
its subsidiaries or any of their respective assets or
properties, or (y) any Contracts to which the undersigned or
any of its subsidiaries is a party or by which the undersigned
or any of its subsidiaries or any of their respective assets
or properties is bound, excluding from the foregoing clauses
(x) and (y) conflicts, violations, breaches, defaults,
terminations, modifications, accelerations and creations and
impositions of Liens which, individually or in the aggregate,
could not be reasonably expected to have a material adverse
effect on the ability of the undersigned to consummate the
transactions contemplated by this Agreement.
(ii) Except as disclosed on Schedule 5(c) hereto, no
consent, approval or action of, filing with or notice to any
Governmental or Regulatory Authority or other public or
private third party is necessary or required under any of the
terms, conditions or provisions of any law or order of any
Governmental or Regulatory Authority or any Contract to which
the undersigned or any of its subsidiaries is a party or by
which the undersigned or any of its subsidiaries or any of
their respective assets or properties is bound for the
execution and delivery of this Agreement or the Partnership
Agreement by the undersigned, the performance by the
undersigned of its obligations hereunder or thereunder or the
consummation of the transactions contemplated hereby or
thereby, other than such consents, approvals, actions, filings
and notices which the failure to make or obtain, as the case
may be, individually or in the aggregate, could not be
reasonably expected to have a material adverse effect on the
ability of the undersigned to consummate the transactions
contemplated by this Agreement or the Partnership Agreement.
(d) Residence. The principal place of business address set
forth on the signature page hereof is the undersigned's true and
correct principal place of business and is the only jurisdiction in
which an offer to sell the Interests was made to the undersigned and
the undersigned has no present intention of moving its principal place
of business to any other state or jurisdiction;
(e) No Registration. The undersigned understands that the
Interests have not been registered under the Act, or under the laws of
any other jurisdiction, and that except as otherwise contemplated
pursuant to the Partnership Agreement, the Partnership does not
contemplate and is under no obligation to so register the Interests.
The undersigned understands and agrees that the Interests must be held
indefinitely unless they are subsequently transferred (i) pursuant to
an effective registration statement under the Act and, where required,
under the laws of other jurisdictions or (ii) pursuant to an exemption
from applicable registration requirements. Even if such exemption is
available, the undersigned agrees that the assignment and
transferability of the Interests will be governed by the Partnership
Agreement. The Partnership Agreement imposes substantial restrictions
on assignment or transfer of Interests. The undersigned recognizes that
there is no established trading market for the Interests and that it is
unlikely that any public market for the Interests will develop for at
least five years. The undersigned will not offer, sell, transfer or
assign its Interest or any interest therein in contravention of this
Agreement, the Partnership Agreement, the Act or any state or federal
law;
(f) Purchase for Investment. The Interests for which the
undersigned hereby subscribes are being acquired solely for the
undersigned's own account for investment and are not being purchased
with a view to or for resale, distribution or other disposition, and
the undersigned has no present plans to enter into any contract,
undertaking, agreement or arrangement for any such resale, distribution
or other disposition, except, in the case that the undersigned is a
Distributing Partner (as defined in Section 7(c)), as contemplated by
Section 7(c) and permitted under the Partnership Agreement;
(g) Knowledge. The undersigned has been furnished and has
carefully read the Partnership Agreement. The undersigned understands,
acknowledges and agrees that:
(i) the Partnership has recently been organized
and therefore has no financial or operating history;
(ii) the undersigned is not entitled to cancel,
terminate or revoke this Agreement or any of the powers
conferred herein;
(iii) various conflicts of interest may arise out
of transactions between the Partnership, the Limited Partners
and the General Partner and their respective Affiliates;
(iv) the Interests are speculative investments
which involve a high degree of risk; and
(v) the General Partner and its Affiliates will
receive substantial compensation in connection with the
management of and investment in the Partnership;
(h) Information. The undersigned has been granted the
opportunity to ask questions of, and receive answers from, the General
Partner and the sponsors of the Partnership concerning the terms and
conditions of the sale of the Interests, the Merger Agreement and the
transactions contemplated thereby, and to obtain any additional
information which the undersigned deems necessary to make an informed
investment decision. The undersigned has received or has had access to
other documents requested from the Partnership relating to the
Interests and the purchase thereof, and the Partnership has afforded
the undersigned the opportunity to discuss the undersigned's investment
in the Partnership and to ask and receive answers to any questions
relating to the investment in the Interests, the Merger Agreement and
the transactions contemplated thereby. The undersigned understands and
has evaluated the risks of a purchase of the Interests;
(i) Accredited Investor. The undersigned has read
the text of Rule 501(a)(1) - (8) of Regulation D under the Act and
confirms that it is an "accredited investor" as described thereby;
(j) Plan Assets.
(i) By checking below, the undersigned has indicated
whether or not it is, or is acting on behalf of, a "benefit
plan investor", as defined in 29 C.F.R. ss. 2510.3-101. The
undersigned acknowledges that (A) a benefit plan investor
includes (x) an "employee benefit plan" within the meaning of
Section 3(3) of the U.S. Employee Retirement Income Security
Act of 1974, as amended ("ERISA"), whether or not such plan is
subject to ERISA, or (y) a plan or arrangement subject to
Section 4975 of the Code or (iii) an entity which is deemed to
hold the assets of any such employee benefit plan, plan or
arrangement described in (x) or (y) above pursuant to 29
C.F.R. ss. 2510.3-101 or otherwise, (B) a plan which is
maintained by a foreign corporation, governmental entity or
church, a Xxxxx plan covering no common-law employees and an
individual retirement account would each be a benefit plan
investor for this purpose, even though they are generally not
subject to ERISA and (C) a foreign or U.S. entity which is not
an operating company and which is not publicly traded or
registered as an investment company under the Investment
Company Act of 1940, as amended, and in which 25% or more of
the value of any class of equity interests is held by benefit
plan investors, would be deemed to hold the assets of one or
more employee benefit plans pursuant to 29 C.F.R. 2510.3-101.
The undersigned further understands that for purposes of
determining whether this 25% threshold has been met or
exceeded, the value of any equity interests held by a person
(other than a benefit plan investor) who has discretionary
authority or control with respect to the assets of the entity,
or any person who provides investment advice for a fee (direct
or indirect) with respect to such assets, or any affiliate of
such a person, is disregarded:
___ Yes ___ No
(ii) By checking below, the undersigned has indicated
whether it is, or is acting on behalf of, such an employee
benefit plan, plan or arrangement described in the preceding
question, or is an entity deemed to hold the assets of any
such employee benefit plan, plan or arrangement that is
subject to ERISA and/or Section 4975 of the Code"
___ Yes ___ No
(iii) By checking below, the undersigned has
indicated whether it is an insurance company using assets of
its general account?
___ Yes ___ No
If the answer to the above question is yes, please indicate
the percentage of the general account that is attributable to
benefit plan investors subject to ERISA and/or Section 4975 of
the Code: _______%;
(k) Holding Company. The undersigned is not a "public
utility company", a "holding company", a "subsidiary company" of a
"holding company", or an "affiliate" of a "holding company" or of a
"subsidiary company", as such terms are defined in the PUHCA or
a "public utility" as such term is defined in the FPA; and
(l) Ownership of Company Common Stock. As of the date hereof,
except as set forth in Schedule 5(l) attached hereto, the undersigned
does not, either individually or as part of a group for purposes of
Rule 13-d under the Securities Exchange Act of 1934, as amended,
beneficially own any shares of Company Common Stock (as defined in the
Merger Agreement).
6. Conditions to Closing. (a) The undersigned's obligation to
purchaseand deliver the Capital Contribution for the Interest to be sold
by the Partnership at the Closing is subject to the fulfillment on or prior
to the Closing of the following conditions:
(i) Representations and Warranties. Each representation and
warranty made by the Partnership in this Agreement shall be true and
correct in all material respects on and as of the Closing Date as
though such representation or warranty was made on the Closing Date,
and any representation or warranty made as of a specified date earlier
than the Closing Date shall have been true and correct in all material
respects on and as of such earlier date, and the Partnership shall have
delivered to the undersigned a certificate, dated the Closing Date and
executed in the name and on behalf of the Partnership by its General
Partner, to such effect.
(ii) Performance. The Partnership shall have performed and
complied with, in all material respects, each agreement, covenant and
obligation required by this Agreement to be so performed or complied
with by the Partnership at or before the Closing Date, and the
Partnership shall have delivered to the undersigned a certificate,
dated the Closing Date and executed in the name and on behalf of the
Partnership by its General Partner, to such effect.
(iii) Merger Agreement. As of the Closing all conditions to
the consummation of the transactions contemplated by the Merger
Agreement shall have been satisfied or waived and the closing of the
transactions contemplated by the Merger Agreement shall occur
simultaneously with the payment of the Capital Contribution hereunder.
(iv) No Orders. As of the Closing Date, there shall not be
outstanding any rule or order of any court, administrative agency or
governmental body which in any way restrains or prevents the carrying
out of the transactions contemplated by this Agreement.
(v) Regulatory Consents and Approvals. All consents, approvals
and actions of, filings with and notices to any Governmental or
Regulatory Authority or any other public or private third parties
necessary to permit the undersigned and the Partnership to perform
their obligations under this Agreement and to consummate the
transactions contemplated hereby shall have been duly obtained, made or
given and shall be in full force and effect, and all terminations or
expirations of waiting periods imposed by any Governmental or
Regulatory Authority necessary for the consummation of the transaction
contemplated by this Agreement, including under the Xxxx-Xxxxx-Xxxxxx
Antitrust Improvements Act of 1976, as amended and the rules and
regulations promulgated thereunder (the "HSR Act"), shall have
occurred.
(vi) Holding Company Acts and FPA. As a result of consummation
of the transactions contemplated by this Agreement and the Merger
Agreement, neither the undersigned nor the Partnership would reasonably
be expected to be subject to regulation (x) as a registered public
utility holding company under PUHCA, (y) as a public utility holding
company under the New Mexico Public Utility Act (other than, in the
case of the Partnership, under Section 62-6-12 thereof) or the Texas
Public Utility Act or (z) as a public utility under the FPA.
(b) In connection with any purchase of Interests as contemplated by
Section 7(c), the Partnership and the General Partner's obligation to accept the
undersigned's Capital Contribution and admit the undersigned as a Limited
Partner in the Partnership at the Closing is subject to the fulfillment on or
prior to the Closing Date of the following conditions:
(i) Representations and Warranties. Each representation and
warranty made by the undersigned in this Agreement shall be true and
correct in all material respects on and as of the Closing Date as
though such representation or warranty was made on the Closing Date,
and any representation or warranty made as of a specified date earlier
than the Closing Date shall have been true and correct in all material
respects on and as of such earlier date, and the undersigned shall have
delivered to the Partnership a certificate, dated the Closing Date and
executed in the name and on behalf of the undersigned, to such effect;
and
(ii) Performance. The undersigned shall have performed and
complied with, in all material respects, each agreement, covenant and
obligation required by this Agreement to be so performed or complied
with by the undersigned at or before the Closing Date, and the
undersigned shall have delivered to the Partnership a certificate,
dated the Closing Date and executed in the name and on behalf of the
undersigned, to such effect.
7. Covenants. Each of the General Partner and the undersigned covenants
and agrees with the other that, at all times from and after the date hereof
until the Closing Date, it will comply with all covenants and provisions of this
Section 7, except to the extent the other party may otherwise consent in
writing.
(a) Covenant to Update Information. The undersigned
covenants to advise the General Partner by telephone and in writing if
any representation and warranty contained in Section 5 or 6 hereof
becomes untrue prior to the Closing Date.
(b) Regulatory and Other Approvals.
(i) Subject to the terms and conditions of this
Agreement, each of the General Partner, the Partnership and
the undersigned will proceed diligently and in good faith to,
as promptly as practicable (x) obtain all consents, approvals
or actions of, make all filings with and give all notices to
governmental or regulatory authorities or any public or
private third parties required of the General Partner, the
Partnership and the undersigned to consummate the transactions
contemplated hereby and by the Merger Agreement, and (y)
provide such other information and communications to such
governmental or regulatory authorities or other public or
private third parties as the other party or such governmental
or regulatory authorities or other public or private third
parties may reasonably request in connection therewith. In
addition to and not in limitation of the foregoing, each of
the parties will (1) take promptly all actions necessary to
make the filings required of General Partner and the
undersigned under the HSR Act, (2) comply at the earliest
practicable date with any request for additional information
received by such party or its affiliates from the Federal
Trade Commission (the "FTC") or the Antitrust Division of the
Department of Justice (the "Antitrust Division"), pursuant to
the HSR Act, and (3) cooperate with the other party in
connection with such party's filings under the HSR Act and in
connection with resolving any investigation or other inquiry
concerning the transactions contemplated by this Agreement
commenced by either the FTC or the Antitrust Division or state
attorneys general.
(ii) Each of the General Partner and the Partnership
further agrees that, promptly following any good faith request
by either Continental Casualty Company or Caravelle Investment
Fund, L.L.C. (x) it will cause to be filed with the Securities
and Exchange Commission (the "SEC"), on behalf of the
Partnership, a request for a "no-action letter" substantially
in the form of the draft thereof provided to the undersigned
prior to the date of this Agreement, with such changes therein
as may reasonably be advisable to obtain from the SEC such
"no-action letter", and (y) thereafter use its reasonable best
efforts to obtain such "no-action" letter.
(c) Sale of Interests.
(i) The Partnership, the General Partner and the
undersigned acknowledge and agree that, notwithstanding the
transfer restrictions contained in the Partnership Agreement,
certain Partners will be permitted to transfer all or any
portion of their respective Interests and rights hereunder in
accordance with Section 9.14 of the Partnership Agreement (the
"Distributing Partners"). The undersigned hereby agrees that,
to the extent it is a Distributing Partner, any such transfer
by it may only be made to a limited number of institutions,
each of which is reasonably believed by the Distributing
Partners to be an "accredited investor" within the meaning of
Rule 501(a)(1), (2), (3) or (7) under the Act or an entity in
which all of the equity owners are accredited investors within
the meaning of Rule 501(a)(1), (2), (3) or (7) under the Act
(each, an "Institutional Accredited Investor"), and that each
such Institutional Accredited Investor shall, to the extent
such transfer is completed prior to the Closing Date, execute
and deliver to the Partnership, prior to the consummation of
any transfer of rights to subscribe for Interests to such
Institutional Accredited Investor, a Subscription Agreement
substantially in the form hereof. In no event will any such
transfer relieve the undersigned from its obligations under
this Subscription Agreement. The undersigned acknowledges and
agrees that, pursuant to the engagement letter dated the date
hereof between the Partnership, on behalf of the Distributing
Partners, and CIBC World Markets Corp. (the "Engagement
Letter"), any offering and sale of Interests or rights to
subscribe for Interests shall be made by the Distributing
Partners in accordance with this paragraph (c) and in
accordance with the terms of the Engagement Letter. The
undersigned will, to the extent it is a Distributing Partner,
cooperate with the Underwriters (as defined in the Engagement
Letter) in accordance with Section 4 of the Engagement Letter.
The Partnership hereby agrees not to agree to any material
amendment to the Engagement Letter without the prior written
consent of the undersigned. Neither the undersigned nor any of
its affiliates has entered into, or will without the prior
written consent of the Partnership enter into, any contractual
arrangement with respect to a distribution of the Interests
contrary to the provisions of this Agreement or the
Partnership Agreement;
(ii) The General Partner shall take all such actions
as shall be necessary to admit to the Partnership each
purchaser of an Interest hereunder; provided, however, that
notwithstanding anything herein to the contrary, none of the
Distributing Partners shall cause to be completed, and the
General Partner and the Partnership may refuse to accept and
register, any assignment, transfer or sale pursuant to this
paragraph (c) if such assignment, transfer or sale would
result in a breach by the Partnership of any of the
representations or warranties made by the Partnership in, or
of any of the covenants or agreements to be performed by the
Partnership pursuant to, of the Merger Agreement.
(d) Notice and Cure. Each of the General Partner and the
undersigned will promptly notify the other in writing of, and
contemporaneously will provide the other with true and complete copies
of any and all information or documents relating to, and will use all
commercially reasonable efforts to cure before the Closing Date, any
event, transaction or circumstance, occurring after the date of this
Agreement that causes or will cause any covenant or agreement of either
such party under this Agreement to be breached or that renders or will
render untrue any representation or warranty of either such party
contained in this Agreement as if the same were made on or as of the
date of such event, transaction or circumstance.
(e) Fulfillment of Conditions. Each of the General Partner and
the undersigned will take all commercially reasonable steps necessary
or desirable and proceed diligently and in good faith to satisfy each
condition to the obligations of such party contained in this Agreement
and will not take or fail to take any action that could reasonably be
expected to result in the nonfulfillment of any such condition.
8. Partnership Agreement. The undersigned agrees to enter into
the Partnership Agreement upon acceptance of this Subscription Agreement by the
General Partner.
9. Indemnification. The undersigned agrees to indemnify and hold
harmless the Partnership, the General Partner, each other Limited Partner, or
any officer, director or control person (within the meaning of Section 15 of the
Act) of any such entity from and against any and all loss, damage or liability
due to or arising out of a breach of any representation or warranty of the
undersigned contained in any document furnished by the undersigned in connection
with the offering and sale of the Interests, including, without limitation, this
Agreement, or failure by the undersigned to comply with any covenant or
agreement made by the undersigned herein or in any other document furnished by
the undersigned to any of the foregoing in connection with this transaction.
10. Survival; Binding Effect. All covenants, agreements,
representations and warranties made herein shall survive the execution and
delivery of this Agreement and delivery of the Interests and payment therefor
and, notwithstanding any investigation heretofore or hereafter made by the
undersigned or on the undersigned's behalf, shall continue in full force and
effect. Whenever in this Agreement any of the parties hereto is referred to,
such reference shall be deemed to include the successors and assigns of such
party; and all covenants, promises and agreements in this Agreement by or on
behalf of the Partnership, or by or on behalf of the undersigned, shall bind and
inure to the benefit of the successors and assigns of such parties hereto.
11. Termination. (a) This Agreement may be terminated, and the
transactions contemplated hereby may be abandoned (i) at any time before the
Closing, by mutual written agreement of the General Partner (following action by
the Advisory Committee) and the undersigned or (ii) at any time before the
Closing, by the General Partner or the undersigned, in the event that any order
or law becomes effective restraining, enjoining or otherwise prohibiting or
making illegal the consummation of any of the transactions contemplated by this
Agreement or the Partnership, upon notification of the non-terminating party by
the terminating party.
(b) This Agreement shall automatically terminate, with no
further action being required on the part of either party hereto, upon any
termination of the Merger Agreement in accordance with its terms.
(c) This Agreement may be terminated by the undersigned if any
occurrence or circumstance results in a failure to satisfy the conditions in
Section 6(a)(iv), (v) or (vi) hereof.
(d) If this Agreement is validly terminated pursuant to this
Section, this Agreement will forthwith become null and void, and there will be
no liability or obligation on the part of the undersigned or the Partnership (or
any of their respective partners, officers, directors, employees, agents or
other representatives or affiliates). Notwithstanding the foregoing, no such
termination shall affect the obligations of the undersigned pursuant to Section
1(b) or Section 9, which shall survive any such termination.
12. Notices. All notices, statements, instructions or other documents
required to be given hereunder shall be in writing and shall be given either
personally, by overnight courier or by facsimile, addressed to the Partnership
at its principal offices and to the other parties at their addresses or
facsimile numbers reflected in the records of the Partnership. The undersigned,
by written notice given to the Partnership in accordance with this Section 12
may change the address to which notices, statements, instructions or other
documents are to be sent to the undersigned. All notices, statements,
instructions and other documents hereunder that are mailed shall be deemed to
have been given on the date of delivery. Whenever pursuant to this Agreement any
notice is required to be given by the undersigned to any other Partner, the
undersigned may request from the Partnership a list of addresses of all Partners
of the Partnership, which list shall be promptly furnished to the undersigned.
13. Complete Agreement; Counterparts. This Agreement constitutes the
entire agreement and supersedes all other agreements and understandings, both
written and oral, among the parties or any of them, with respect to the subject
matter hereof. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the same
instrument.
14. Assignment. Neither this Agreement nor any right, interest or
obligation hereunder may be assigned by any party hereto and any attempt to do
so will be void, except that the undersigned may assign any or all of its
rights, interests and obligations hereunder to a Permitted Transferee that
agrees in writing to be bound by all of the terms, conditions and provisions
contained herein, but no such assignment shall relieve the undersigned of its
obligations hereunder. Subject to the preceding sentence, this Agreement shall
be binding upon, inure to the benefit of and shall be enforceable by the parties
hereto and their respective successors and assigns.
15. Amendment and Waiver. This Agreement may be amended or modified
only by an instrument signed by the parties hereto. A waiver of any provision of
this Agreement must be in writing, designated as such, and signed by the party
against whom enforcement of that waiver is sought. The waiver by a party of a
breach of any provision of this Agreement shall not operate or be construed as a
waiver of any subsequent or other breach thereof.
16. Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of New York.
Signature Page for Corporate, Partnership or Trust Subscribers
IN WITNESS WHEREOF, the undersigned has executed this
Subscription Agreement on this 24th day of May, 1999.
Caravelle Investment Fund, L.L.C. 000 Xxxxxxxxx Xxxxxx, 0xx Floor
---------------------------------------- -------------------------------
Name of Entity (Print) Mailing Address -- Street
By: Caravelle Advisors, L.L.C., Xxx Xxxx XX 00000
----------------------------------- -------------------------------
as Investment Manager Attorney-in-Fact City State Zip Code
By: /s/ Xxxxx Xxxxx 00-000-0000
----------------------------------- -------------------------------
Signature Tax Identification Number
Xxxxx Xxxxx
-----------------------------------
Name (Print)
Executive Director
-----------------------------------
Title
Total amount of Interest subscribed for: 24.375% Interest in the
Partnership for $24,375,000 contributed, less the amount, if any, of
Capital Contributions actually received by the Partnership from all
subscribers which have agreed to subscribe for the Interests referred to
above in accordance with the provisions of Section 7(c) of this
Subscription Agreement.
000-000-0000
----------------------------------
Telecopy No.
000-000-0000
----------------------------------
Telephone No.
Signature Page for Corporate, Partnership or Trust Subscribers
IN WITNESS WHEREOF, the undersigned has executed this
Subscription Agreement on this 24th day of May, 1999.
CIBC WG Argosy Merchant Fund 2, L.L.C. 000 Xxxxxxxxx Xxxxxx
------------------------------------ ---------------------------------
Name of Entity (Print) Mailing Address -- Street
By: /s/ Xxx Xxxxxx Xxx Xxxx XX 00000
------------------------------------ --------------------------------
Signature City State Zip Code
Xxx Xxxxxx 00-0000000
------------------------------------ ---------------------------------
Name (Print) Tax Identification Number
Managing Director
-----------------------------------
Title
Total amount of Interest subscribed for: 21.9375% Interest in the
Partnership for $21,937,500 contributed, less the amount, if any, of
Capital Contributions actually received by the Partnership from all
subscribers which have agreed to subscribe for the Interests referred to
above in accordance with the provisions of Section 7(c) of this
Subscription Agreement.
(000) 000-0000
---------------------------------
Telecopy No.
(000) 000-0000
---------------------------------
Telephone No.
Signature Page for Corporate, Partnership or Trust Subscribers
IN WITNESS WHEREOF, the undersigned has executed this
Subscription Agreement on this 24th day of May, 1999.
Co-Investment Merchant Fund 3, LLC 000 Xxxxxxxxx Xxxxxx
----------------------------------- ------------------------------
Name of Entity (Print) Mailing Address -- Street
By: /s/ Xxx Xxxxxx Xxx Xxxx XX 00000
------------------------------ ------------------------------
Signature City State Zip Code
Xxx Xxxxxx 00-0000000
----------------------------------- ------------------------------
Name (Print) Tax Identification Number
Managing Director
-----------------------------------
Title
Total amount of Interest subscribed for: 2.4375% Interest in the
Partnership for $2,437,500 contributed, less the amount, if any, of
Capital Contributions actually received by the Partnership from all
subscribers which have agreed to subscribe for the Interests referred to
above in accordance with the provisions of Section 7(c) of this
Subscription Agreement.
(000) 000-0000
-----------------------------------
Telecopy No.
(000) 000-0000
-----------------------------------
Telephone No.
Signature Page for Corporate, Partnership or Trust Subscribers
IN WITNESS WHEREOF, the undersigned has executed this
Subscription Agreement on this 24th day of May, 1999.
Continental Casualty Company CNA Plaza, 23-S
------------------------------------ ----------------------------
Name of Entity (Print) Mailing Address -- Street
By: /s/ Xxxxxxx X. XxXxxx Xxxxxxx XX 00000
------------------------------- ----------------------------
Signature City State Zip Code
Xxxxxxx X. XxXxxx 00-0000000
------------------------------------ ----------------------------
Name (Print) Tax Identification Number
Vice President
------------------------------------
Title
Total amount of Interest subscribed for: 48.75% Interest in the
Partnership for $48,750,000 contributed, less the amount, if any, of
Capital Contributions actually received by the Partnership from all
subscribers which have agreed to subscribe for the Interests referred to
above in accordance with the provisions of Section 7(c) of this
Subscription Agreement.
(000) 000-0000
------------------------------------
Telecopy No.
(000) 000-0000
------------------------------------
Telephone No.
Signature Page for Corporate, Partnership or Trust Subscribers
IN WITNESS WHEREOF, the undersigned has executed this
Subscription Agreement on this 24th day of May, 1999.
Laurel Hill Capital Partners, LLC 0 Xxxxxxx Xxxx, Xxxxx 000
------------------------------------- ------------------------------
Name of Entity (Print) Mailing Address -- Street
By: /s/ X. X. Xxxxxxxxxxx Xxxxxxx XX 00000
-------------------------------- ------------------------------
Signature City State Zip Code
Xxxxxxx X. Xxxxxxxxxxx 00-0000000
------------------------------------- ------------------------------
Name (Print) Tax Identification Number
Manager
-------------------------------------
Title
Total amount of Interest subscribed for: 2.4% Interest in the Partnership
for $2,399,999 contributed, less the amount, if any, of Capital
Contributions actually received by the Partnership from all subscribers
which have agreed to subscribe for the Interests referred to above in
accordance with the provisions of Section 7(c) of this Subscription
Agreement.
000-000-0000
------------------------------------
Telecopy No.
516-933-3100
------------------------------------
Telephone No.
SUBSCRIPTION ACCEPTED AS OF MAY 24, 1999
SW Acquisition, L.P.
By: SW I Acquisition GP, L.P.
as General Partner
By: XX XX Acquisition, LLC
as General Partner
By: /s/ X. X. Xxxxxxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxxxxxx
Title: Manager
